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ISSA ACCESS NO. 3026

 

Doe v. Esposito, 495 N.Y.S. 2d 432, New York. Filed in 1985. Award on July 28, 1986.

Judgment: $361,955.

Plaintiff: Daughter of defendant, in her twenties at time suit was filed.

Defendant: Father of plaintiff.

Facts: During plaintiff's infancy and childhood, she was raped, sexually abused and physically attacked by her father, the defendant. Defendant admitted to these acts as well as to the repeated rapes of his other younger daughter in the course of separate court proceedings.

Theories: Intentional tort; parental negligence.

Defenses: Defendant's counsel contended that there was an "issue of fact" as to whether defendant had committed the acts in question. Note that statute of limitations defense was not raised.

Motions Filed and Outcomes: Plaintiff filed summary judgment motion on the collateral estoppel issue. Plaintiff argued that defendant should be estopped from denying the factual basis of the complaint and that the only issue was one of damages because the defendant had already been found guilty of sexual assault by the state in a prior child abuse action. Plaintiff argued that she should not have to re–try the whole case. Plaintiff's motion was denied by the trial court. She appealed and won. The appellate court held that inasmuch as the defendant, in prior proceedings, acknowledged under oath that he had raped his daughter, he was precluded from relitigating the identical facts underlying this civil complaint.

Post–Trial Motions and Outcomes: Defendant made motions to set aside verdict (denied by trial court) and to stay execution of judgment pending appeal (denied by appellate court on January 23, 1987). Although defendant filed a timely Notice of Appeal, he did not perfect his appeal. At a pro–appeal conference, a combination of money and interest in property was agreed upon in satisfaction of the judgment.

Plaintiff's Attorney: Andrew H. Vachss and Melvin N. Borowka, 299 Broadway, 18th Floor, New York, New York 10007-1901; (212) 732-4545.

Plaintiff's Expert: Flora Colao, C.S.W., New York, New York (damages).

Notes: In the criminal proceedings, defendant was placed on 5 years felony probation, ordered to have psychiatric examination and care, and ordered to refrain from having any contact with his two youngest daughters.

ISSA Library: Plaintiff's appellate brief.

Updated and Corrected 4/27/87



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