Pain Mgt. Ctr. of N.J., P.C. v Travelers Prop. & Cas. Ins. Co., 2019 NY Slip Op 50607(U)(App. Term 2d Dept. 2019)
“With respect to the branch of defendant’s motion seeking summary judgment based on the doctrine of collateral estoppel, plaintiff’s argument on appeal as to why the doctrine of collateral estoppel does not apply in the case at bar is, essentially, that it cannot be determined if the issues to be litigated were substantially similar because defendant failed to include in its motion the evidence and documents submitted by the parties at the arbitration. In view of the fact that plaintiff does not point to any ambiguity in the arbitrator’s decision, or any distinction between the facts of this case and those underlying the arbitration, or any other meritorious argument, plaintiff has presented no basis to disturb so much of the order of the Civil Court as, upon amendment of the answer, granted the branch of defendant’s motion seeking summary judgment dismissing the complaint. “
The burden is on the movant to set forth the “distinction between the facts of this case and this underlying the arbitration” in order to apply collateral estoppel,
