Auqui v. Seven Thirty Ltd. Partnership

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered October 7, 2009, which, insofar as appealed from, as limited by the briefs,.granted defendants’ motion to preclude plaintiffs from litigating the issue of plaintiff Jose Verdugo’s 408 accident-related disability beyond January 24, 2006, unanimously reversed, on the law, without costs, and the motion denied. Appeal from order, same court and Justice, entered on or about December 8, 2009, which, inter alia, upon granting re-argument and renewal, adhered to the prior determination, unanimously dismissed, without costs, as academic. The motion court erred in according collateral estoppel effect to the determination of the Workers’ Compensation Law Judge that plaintiffs post-January 24, 2006 disability was not causally related to his December 24, 2003 accident; The determination that workers’ compensation coverage would terminate as of a certain date for plaintiffs injuries (including head, neck and back injuries, and depression and posttraumatic stress disorder, which are not disputed, and which were caused when plaintiff was struck in the head by a falling sheet of plywood in the course of his employment) is not, nor could it be, a definitive determination as to whether plaintiffs documented and continuing injuries were proximately caused by defendants’ actions. While factual issues necessarily decided in an administrative proceeding may have collateral estoppel effect, it is well settled that “an administrative agency’s final conclusion, characterized as an ultimate fact or mixed question of fact and law, is not entitled to preclusive effect” (Akgul v Prime Time Transp., 293 AD2d 631, 633 [2002]; see Tounkara v Fernicola, 63 AD3d 648 [2009] [no identity of issues between proceeding before Workers’ Compensation Board, which involved determination of whether party was plaintiffs employer for purposes of workers’ compensation coverage, and third-party action, which involved determination of whether party was plaintiff’s employer for purposes of indemnification provision]). The agency’s determination on ultimate facts, as opposed to mere evidentiary facts, is imbued with policy considerations as well as the agency’s expertise (see Matter of Engel v Calgon Corp., 114 AD2d 108, 110 [1986], affd 69 NY2d 753 [1987]). Therefore, the Workers’ Compensation Board’s determination is not entitled to preclusive effect because it involved the ultimate issues of disability and proximate cause, which were committed to the Board’s discretion. Indeed, the October 13, 2009 guardianship order that was the partial basis for plaintiffs’ renewal motion raises an issue of fact as to the cause of plaintiffs ongoing disability sufficient to warrant denial of defendants’ motion. Concur— Mazzarelli, J.P., DeGrasse and Manzanet-Daniels, JJ.