In this subrogation action, plaintiff insurers sought reimbursement of monies they paid on a claim for property damage to the owner of a building in which defendant Larry Feingold resided. In February 2003, Feingold attempted suicide in his 12th floor apartment in Stuyvesant Town by turning on the gas to his stove and taking tranquilizers. After he fell into an unconscious state in front of the oven, a spark in the apartment ignited the gas, causing an explosion which seriously damaged Feingolds apartment and a number of neighboring apartments in the building.

Feingold survived and was charged with the crime of reckless endangerment in the first degree under section Penal Law 120.25, which provides that a defendant is guilty of such a crime when [u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person.

Following a non-jury trial, the court found Feingold guilty of the charge. Ultimately, the Court of Appeals modified the conviction by reducing it to reckless endangerment in the second degree (see People v. Feingold, 7 NY3d 288 (2006)). Under Penal Law 120.20, reckless endangerment in the second degree is defined as when a person recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.

In its decision, the Court of Appeals found that Feingold lacked the mens rea which is required for the crime of reckless endangerment in the first degree because his actions were motivated solely by a desire to commit suicide and he was unaware that his actions could cause damage or harm to others.

In this subrogation action against Feingold and his alleged roommate, Roy C. Abbott, the plaintiffs asserted two causes of action: one for negligence, and one for breach of the lease. Plaintiffs moved for summary judgment against Feingold on the first cause of action for negligence. They argued that there has already been a judicial finding in the criminal proceeding that the damage from the explosion was caused by Feingolds negligent conduct, and Feingold was therefore collaterally estopped from claiming otherwise in this action. They also argued that Feingolds testimony at the criminal trial has conclusively established that, as a matter of law, he was negligent.

Specifically, they pointed to Feingolds testimony that he was not aware and did not foresee that turning on the gas could lead to extensive property damage in the building. Plaintiffs argued that this court should therefore find, based on Feingolds testimony and his conviction for reckless endangerment in the second degree, that he was negligent as a matter of law.

In opposing the motion, Feingold argued that there is an issue of fact as to whether his actions were negligent and whether that negligence was a proximate cause of the property damage sustained by plaintiffs subrogees.

Under the doctrine of issue preclusion or collateral estoppel, held the court, an issue expressly or necessarily decided in a criminal proceeding may be given preclusive effect in a subsequent civil action (see Allstate Ins. Co. v. Zuk, 78 NY2d 41, 45 (1991)). A party may invoke collateral estoppel if the issue is identical in both actions, necessarily decided in the prior criminal action and decisive in the civil action, and if the party that is to be precluded from arguing its position in the civil action had a full and fair opportunity to litigate the issue in the criminal action (see Allstate Ins. Co. v. Zuk, 78 NY2d at 45; DArta v. New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 667 (1990)). Here, there has already been a criminal adjudication that Feingold caused the damage to the property and that his actions, although not intentional, were reckless. It is well settled that a criminal finding of recklessness is determinative of the issue of civil negligence arising out of the same conduct (see Paul v. Grenier, 279 AD2d 882, 883 (3rd Dept 2001); Grayes v. DiStasio, 166 AD2d 261, 263 (1st Dept 1990)). Thus, Feingold should be precluded in this action from denying that he was negligent.

Nevertheless, Feingold argues that collateral estoppel does not apply because the Court of Appeals only ruled that he did not intentionally endanger other people, as required for first degree reckless endangerment, and did not address the issue raised herein as to whether he intentionally damaged property. This argument is without merit. There is nothing in the record before the court which even suggests that the risk to the buildings property from defendants actions and the risk to the buildings occupants were anything but coterminous. Nor is it relevant that plaintiffs may have failed to prove in this proceeding that defendant knew or should have known of the risk of explosion posed by the accumulation of gas in an apartment. In the criminal proceeding, Feingold was found to have acted recklessly and he is bound by this finding in this civil proceeding.

Accordingly, the plaintiffs motion for summary judgment against Feingold as to liability on their first cause of action for negligence is hereby granted.

Lexington Ins. Co. v. Feingold, NYLJ 6/29/07 (Index no. 100653/06) (Supreme Court, New York County) (Diamond, j)