consideration of "the `realities of the [prior] litigation', including the context and other circumstances which . . . may have had the practical effect of discouraging or deterring a party from fully litigating the determination which is now asserted against him." People v. Plevy, 52 N.Y.2d 58, 65, 436 N.Y.S.2d 224, 417 N.E.2d 518 (1980). Among the specific factors to be considered are the nature of the forum and the importance of the claim in the prior litigation, the incentive and initiative to litigate and the actual extent of litigation, the competence and expertise of counsel, the availability of new evidence, the differences in the applicable law and the foreseeability of future litigation. Gilberg v. Barbieri, 53 N.Y.2d 285, 292, 441 N.Y.S.2d 49, 423 N.E.2d 807 (1981); Schwartz v. Public Administrator, 24 N.Y.2d 65, 72, 298 N.Y.S.2d 955, 246 N.E.2d 725.
The application of collateral estoppel applies only where the circumstances indicate the issue estopped from further consideration was thoroughly explored in the prior proceeding, and that the resulting judgment thus has some indicia of correctness. Gelb v. Royal Globe Ins. Co., 798 F.2d 38, 44 (2d Cir. 1986). Under New York law, appellate review generally plays a central role in safeguarding the correctness of judgments. Malloy v. Trombley, 50 N.Y.2d 46, 51, 427 N.Y.S.2d 969, 405 N.E.2d 213 (1980). Collateral estoppel cannot be applied without first considering the availability of such review. If a party has not had an opportunity to appeal an adverse finding, then it has not had a full and fair opportunity to litigate that issue. People v. Medina, 208 A.D.2d 771, 772, 617 N.Y.S.2d 491 (2d Dep't 1994); Gelb, 798 F.2d at 44; accord Restatement (Second) of Judgments § 28(1)(2002).
The doctrines of res judicata and collateral estoppel give conclusive effect to the quasi-judicial determinations of administrative agencies, as well as to determinations by courts. Matter of Evans v. Monaghan, 306 N.Y. 312, 323-324, 118 N.E.2d 452 (1954); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). Collateral estoppel applies to determinations rendered pursuant to the adjudicatory authority of an agency to decide cases brought before its tribunals employing procedures substantially similar to those used in a court of law. Venes v. Community School Bd., 43 N.Y.2d 520, 524, 402 N.Y.S.2d 807, 373 N.E.2d 987 (1978); Bernstein v. Birch Wathen School, 71 A.D.2d 129, 132, 421 N.Y.S.2d 574 (1st Dep't 1979), aff'd. 51 N.Y.2d 932, 434 N.Y.S.2d 994, 415 N.E.2d 982 (1980); see also Newsday, Inc. v. Ross, 80 A.D.2d 1, 5, 437 N.Y.S.2d 376 (2d Dep't 1981). "In the application of collateral estoppel with respect to administrative determinations, the burden rests upon the proponent of collateral estoppel to demonstrate the identicality and decisiveness of the issue, while the burden rests upon the opponent to establish the absence of a full and fair opportunity to litigate the issue in prior action or proceeding." Ryan v. New York Telephone Co., 62 N.Y.2d 494, 501, 467 N.E.2d 487, 491, 478 N.Y.S.2d 823, 827 (1984).
Under these principles, in the context of determining whether findings from a professional disciplinary hearing could preclude issues in a later civil action, the New York courts have carefully examined the nature of the procedural protections available to the defendant in the administrative proceeding, the availability and similarity of the procedures in the two proceedings, and the identity of legal and factual issues in the administrative and legal proceedings. Thus, for example, in Stevenson v. Goomar, 148 A.D.2d 217, 544 N.Y.S.2d 690 (3d Dep't 1989), a plaintiff sought recovery in tort for injuries allegedly sustained as a result of the professional malfeasance of her doctor whose license to practice medicine had subsequently been revoked. Relying on the differences between the administrative proceeding and the legal proceeding, specifically, the availability of a jury trial, the lack of discovery, the inapplicability of the rules of evidence to the administrative proceeding, and the limited scope of factual review available for an administrative proceeding, as well as the fact that the doctor had not chosen the administrative forum in which to litigate, the court declined to apply collateral estoppel to the findings in the disciplinary proceeding. It reasoned that:
[a] ruling in favor of plaintiff herein would
effectively make the administrative agency in a
disciplinary proceeding the ultimate fact finder,
with only limited judicial review, in any tort action
arising out of the alleged misconduct, thereby
depriving a defendant of a number of valuable rights
traditionally associated with civil actions.
148 A.D.2d 217, 220-21, 544 N.Y.S.2d 690, 692.
Similarly in Jeffreys v. Griffin, 301 A.D.2d 232, 749 N.Y.S.2d 505, 2002 N.Y. Slip Op. 07901, (1st Dep't October 31, 2002), the Appellate Division cited and relied on the reasoning of Stevenson, and declined to apply issue preclusion to the findings of a medical board. The Appellate Division noted that the finding that the defendant doctor engaged in professional misconduct by having sexual contact with his patient did not amount to a finding that the defendant "by a preponderance of the evidence, acted with the requisite intent necessary for the torts presently alleged." See 301 A.D.2d 232, 749 N.Y.S.2d 505, 510-511. In particular, the First Department warned against "an unsettling precedent in which purportedly aggrieved [parties] may use disciplinary proceedings, lacking in the full panoply of discovery and procedural safeguards codified in our civil law, to trump the professionally licensed defendant's recourse to a defense against claims in a civil trial." Id.Compare Ryan v. New York Tel., 62 N.Y.2d 494, 501, 467 N.E.2d 487, 491, 478 N.Y.S.2d 823, 827 (where plaintiff initiated prior administrative proceeding for unemployment benefits in which he had full opportunity to litigate, and to appeal, issues determined would have preclusive effect on later tort action brought by plaintiff); A to Z Assoc. v. Cooper, 161 Misc.2d 283, 613 N.Y.S.2d 512, 516 (1993)(collateral estoppel would preclude relitigation of issues decided in attorney disciplinary proceeding, in which there was 31 days of testimony, the right to present documentary and testimonial evidence, and full factual review by the Appellate Division).
In the present case, at the hearing before the Commission, which plaintiff put in as part of the record on her cross-motion for summary judgment, Justice Shaw had the opportunity to call witnesses and to cross-examine the witnesses before the Commission. However, there appears to have been no discovery prior to this time. Nor did he have the right to a jury trial. After the three-day hearing, the referee, the Honorable Richard D. Simons, a retired Judge of the New York Court of Appeals, issued a report to the Commission. Pl.Ex. H. Based on this report, and on consideration of the record and the briefing and argument of the parties, the Commission's Determination made the following findings of fact:
— between October 1985 and November 1997, Shaw engaged in "offensive, undignified and harassing conduct" towards plaintiff;
— he "repeatedly made explicit comments to Ms. Bland about the manner in which her clothes fit the various parts of her body";
— he "repeatedly hugged Ms. Bland, rubbed her back and touched her hand without invitation or consent";
— he "repeatedly asked Ms. Bland whether she enjoyed having sex";
— he repeatedly told her that her lips were "wide," "sexy" and "voluptuous";
— in November 1985 Shaw "pulled Ms. Bland into his lap and kissed her on the mouth without her invitation or consent; Ms. Bland jumped up and left the room";
— he repeatedly told Ms. Bland that she had "big tits" and repeatedly made comments about her nipples;
— on May 24, 1996, after Ms. Bland had lost weight, Shaw told her, "If you didn't have large tits, then you would disappear";
— while looking at Ms. Bland's wedding pictures and referring to her breasts, Shaw "remarked that her husband `would never go hungry'";
— he "told Ms. Bland that `from the neck down' she looked `voluptuous'";
— in 1997 he "told Ms. Bland that a woman's sole purpose is to make a man feel good in the bedroom";
— early in her tenure, Ms. Bland told Defendant Shaw that she was young enough to be his granddaughter and asked him how he would like it if someone touched his daughter or made her feel uncomfortable;
— Ms. Bland endured Shaw's remarks and touching for twelve years because she was concerned that no one would take her word over that of a judge;
— in November 1997, Ms. Bland told Defendant Shaw that she was tired of his comments and his touching and remarked that he did not make such comments to his male law clerk; and
— on November 24, 1997, plaintiff complained to the EEO Office of the Office of Court Administration and was transferred to another position shortly thereafter.
The record before Judge Simons also included the testimony of Ms. Caroline Rucker, another complaining witness; she claimed to witness some of Justice Shaw's conduct towards Ms. Bland. The Commission concluded that the remarks made by Shaw were "inappropriate and demeaning" and merited "severe sanction." Nonetheless, in light of the fact that Shaw was then 76 years old and would be retiring at the end of the year, it censured him, rather than removed him from the bench. Pl.Ex. I at 4-6.
In December, 1999, Shaw requested review of the censure decision by the Court of Appeals. The Court of Appeals has jurisdiction to review the Judicial Commission's findings of fact and conclusions of law on the record of the proceedings upon which the Commission's determination was based. New York Judiciary Law § 44(9). In addition, Justice Shaw moved before the Commission for reconsideration on the basis of newly discovered evidence. He presented an affidavit from a new witness, Shelley Williams, who averred, based on her conversations with Ms. Rucker, that the charges were fabricated. Williams, a former roommate of Rucker, stated that, prior to testifying before the referee, Rucker told Williams that Rucker and Bland planned to lodge false accusations against Justice Shaw. See Affidavit of Shelley Williams dated January 14, 2000, attached as Exhibit A to the Affidavit of James Soffey dated August 3, 2001.
This new evidence was investigated by the Commission. Specifically, the prosecuting attorney examined the new witness, Ms. Williams, on the record with counsel for Williams present but not counsel for Shaw. Shaw had no opportunity to examine the witness or place evidence on the record during this investigation. A copy of the transcript was furnished to the Commission. As characterized by the Court of Appeals:
The transcript is filled with repeated admissions,
after recesses in which Williams consulted with her
attorney, that earlier deposition testimony was
false. It includes a bold assertion that Williams was
associated with a "hit man" and that Rucker had
sought Williams' assistance in arranging for the
murder of Rucker's husband and another Judge.
In re James H. Shaw, 96 N.Y.2d 7,9, 724 N.Y.S.2d 672, 747 N.E.2d 1272 (2001).
On April 6, 2000 the Commission determined that the new evidence "did not create a reasonable possibility or a probability that [the] Determination would be altered." Pl.Ex. N. Following this decision, the Court of Appeals, by decision dated June 20, 2000, unanimously dismissed the request for review of this decision on the ground that:
The Court of Appeals does not have jurisdiction to
entertain a request for review of such a
determination . . . the reconsideration determination
is nonreviewable . . .
On review of the underlying decision of the Commission, petitioner again asked the Court of Appeals to remand the case to the Commission, arguing again that Williams's newly discovered exculpatory testimony should be heard first-hand by the referee or the Commission. However, the Court found that such a remittur "is not within the powers conferred on us by the Constitution or the Judiciary Law" (citing N.Y. Const. Art VI § 22(d); Judiciary Law § 44(9)), and that these sources, as well as "our precedents lead to the inescapable conclusion that this Court is limited to reviewing the Commission's determination on the record as it was before the Commission at the time of the original determination . . . [because] the reconsideration decision is nonreviewable, the additional evidence sought to be introduced on reconsideration cannot now be considered by this Court in its review of the original determination." In re Shaw, 96 N.Y.2d 7,12, 724 N.Y.S.2d 672, 675, 747 N.E.2d 1272.
In a separate concurring opinion, Judge Rosenblatt agreed with the Court's conclusions relating to the jurisdictional constrictions on the powers of the Court, but wrote in addition to "express my concern with a process in which newly discovered allegations of perjury were never heard firsthand by a neutral arbiter." As analyzed by Judge Rosenblatt:
The Commission's original censure determination was
based entirely on the testimony of Jacqueline Bland
and Caroline Rucker, each of whom alleged that
Justice Shaw engaged in sexual harassment. While
review of the censure determination was pending
before us, Shelly Williams told Justice Shaw that
Rucker admitted to having fabricated the charges
along with Bland.
Based on Williams' affidavit, Justice Shaw moved the
Commission for reconsideration. As part of his motion
he requested that a neutral party (the Referee or the
Commission itself) conduct a heating to evaluate
Williams' testimony firsthand before rendering a
decision. With no one except Williams' attorney
present, Commission Counsel — the prosecutorial
arm of the commission — interviewed Williams on
the record. He
compellingly impeached Williams' credibility as to
various collateral matters. He did not, however,
disprove her central allegation — that Justice
Shaw had been framed and that the testimony against
him was perjured[.]
[Based on this transcript and an affidavit from
Rucker] the Commission denied Justice Shaw's request
for a hearing (and for reconsideration generally)
holding that the Williams evidence did not create a
reasonable possibility or a probability [emphasis in
original] that [the] determination would be altered.
The Commission thus mingled two wholly distinct
evidentiary criteria — "possibility" and
"probability." [footnote omitted] Consequently,
Williams was never produced before the Commission or
the Referee. In the end, Justice Shaw received less
consideration than is normally accorded parties in
criminal or civil cases who come in with newly
discovered evidence. [The opinion went on to compare
these procedures with those afforded by the New York
CPL 440.34(c) and (d) and CPLR 5015(a)(2) to criminal
and civil litigants.]
Williams might well have been lying. Based on the
parties' submission to the Commission, however, I
cannot rule out the reasonable possibility that she
was telling the truth as to the alleged frame-up. The
gravity of her allegations called for direct inquiry
by a neutral arbiter . . .
The Commission is of course entitled to create its
own standard in dealing with newly discovered
evidence. Here, however, it formulated one that is
impracticable as a result and the Williams evidence
was never adequately considered.
96 N.Y.2d at 15-16, 724 N.Y.S.2d at 677,