Doe v. Bin Fahd Alsaud et al

Filing 91

OPINION re: 76 MOTION for Summary Judgment . filed by Jane Doe. Based upon the facts and conclusions set forth above, Plaintiff's motion for summary judgment is granted. (Signed by Judge Robert W. Sweet on 12/13/2016) (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

--------------------------------------x
JANE DOE,
Plaintiff,
-against-

13 Civ. 571
OPINION

HRH PRINCE ABDULAZIZ BIN FAHD ALSAUD
and MUSTAPHA OCTANES,
Defendants.

--------------------------------------x
A P P E A R A N C E S:

Attorneys for Plaintiff
MORELLI LAW FIRM LLC
777 Third Av enue, 31 st Floor
New York, NY 10017
By:
Sara A. Strickland
Martha M. McBrayer

Pr o se
MUSTAPHA OCTANES
DIN #12A2814
Eastern New York Correctional Facility
Box 338
Napanoch, NY 1 2 458

Sweet, D. J.

Plaintiff Jane Doe ("Plaintiff " or "Doe") has moved
for summary judgment pursuant to Federal Rule of Civil Procedure
56 as to pro se defendant Mustapha Ouanes's

("Defendant" or

"Ouanes") liability. Based on the conclusions set forth below,
Plaintiff's motion is granted.

I.

Prior Proceedings

Plaintiff filed the complaint to commence the instant
action on January 25, 2013. Plaintiff alleged Ouanes, as an
employee of HRH Prince Abdulaziz Bin Fahd Alsaud ("Prince
Abdulaziz Bin Fahd") and Hariri Interests doing business as
Saudi Oger LTD ("Saudi Oger"), sexually assaulted, raped, and
sodomized her and another woman, Mary Doe, at the Plaza Hotel on
January 26, 2010. Plaintiff alleged claims of negligent hiring,
negligent supervision, negligent retention, and respondeat
superior liability against Saudi Oger and Prince Abdulaziz Bin
Fahd, and claims of assault, battery, false imprisonment, and
intentional infliction of emotional distress against Ouanes.

In February 2012, following a two-week trial in New
York Criminal Court, a jury convicted Ouanes of five criminal
1

charges: rape in the first degree, criminal sexual act in the
first degree, sexual abuse in the first degree, assault in the
second degree, and attempted sexual abuse in the first degree.
See People v . Ouanes, 123 A.D.3d 480

(1st Dep't 2014), leave to

appeal denied, 25 N.Y.3d 1075 (2015).

Ouanes was sentenced to

ten years in prison.

Plaintiff moved for default judgment against Prince
Abdulaziz Bin Fahd for his failure to appear, which was denied
on April 3, 20 14 for failure to effect proper service. Pursuant
to Federal Rule of Civil Procedure 41 (a) ( 1) (A) (ii) Hariri
Interests was voluntarily dismissed by stipulation on May 1,
2013. Plaintiff filed a First Amended Complaint ("FAC") on May
7, 2013, removing Hariri and withdrawing the negligent hiring
claim. By Opinion dated April 3, 2014, all of Plaintiff's
remaining claims against Saudi Oger were dismissed for failure
to state a claim. By stipulation, all claims against Saudi Oger
were dismissed with prejudice on May 22 , 2014.

In January 2016 , Defendant Ouanes moved to dismiss,
or, in the alternative, for summary judgment; Plaintiff crossmoved for summary judgment as to Ouanes's liability based on
collateral estoppel. By Opinion dated May 6, 2016, both motions
were denied. Plaintiff was granted leave to refile.
2

Plaintiff again moved for summary judgment as to
Ouanes's liability on collateral estoppel on June 30, 2016. The
motion was taken on submission on August 18, 2016, at which
point the motion was deemed fully submitted.

II.

The Facts

Pursuant to Local Civil Rule 56.1, the material facts
relevant to this motion are set forth in Plaintiff's Statement
of Undisputed Material Facts (hereinafter "SUMF"). The facts are
not in dispute e x cept as set forth below.

In January 2010, Plaintiff Jane Doe was a 26-year-old
nursing student living in Brooklyn, NY. SUMF

~

9. She was also

employed as a bartender at the now-defunct Habibi Lounge, a
Middle Eastern hookah bar, located in Manhattan's East Village.
Id.

~

12.

After her shift ended around 12:30 or 1:00 am, id.

~

13, Plaintiff, some of her co-workers, and several friends met
at Veranda, a cocktail lounge in the West Village, for drinks.
Id. One of the friends in attendance was "Mary Doe," a 25-year-

old NYU student. Id. At Veranda, Defendant Mustapha Ouanes
approached Plaintiff and offered to buy her a drink. She
3

declined.

Id.

~

14. Later that evening, Plaintiff and some of

her co-workers and friends,

including Mary Doe, went to Falucka

Lounge, another cocktail lounge in the West Village.

Id.

~

16.

Defendant also went to Falucka Lounge, id., and while there, he
bought a round of champagne for everyone, id.

~

17. Plaintiff

spoke to Defendant to thank him for the champagne. Id.

At approximately 4:30 or 5:00 am, Mary Doe and
Plaintiff left Falucka Lounge and got in a cab to Mary Doe's
apartment. Id.

~

18. Defendant stated that he was going in the

same direction, as he lived at The Plaza Hotel, and joined them
in the cab. Id. After Plaintiff and Mary Doe discussed getting
something to eat, Defendant suggested they join him at The Plaza
Hotel, explaining that since he worked for Saudi Arabian prince,
they would be able to get food regardless of the late hour.

Id.

Plaintiff and Mary Doe agreed, but all of the restaurants were
closed when they arrived at The Plaza Hotel, so they accompanied
Defendant to his room upon Plaintiff's offer that he would order
room service. Id.

~

19.

Defendant briefly left the room and returned with
three Arab men, who were purportedly there to join them for
breakfast. Id.

~

20. At approximately 5:30 am, Plaintiff poured

mimosas and noticed her drink looked strange; she commented to
4

Mary Doe: "This orange juice looks funny." Id. '
thereafter, Plaintiff lost consciousness. Id. '

21. Shortly
22.

Throughout the morning of January 26, 2010, Plaintiff
came in and out of consciousness as Defendant raped and
sodomized her.

Id. ' ' 23-29. She tried unsuccessfully to move

away and scream, as she felt heavily drugged.

Id. Mary Doe was

also in the room and also appeared to be heavily drugged to the
point of immobility. Id. ' ' 26-27, 30. Even tually, Plaintiff and
Mary Doe were able to threaten Defendant with a broken glass and
call 911. Id. '

32.

At approximately 8:00 am, New York City Police
Department officers arrived and arrested Defendant.

Id. '

33.

They escorted Mary Doe and Plaintiff to the Emergency Room at
Roosevelt Hospital.

Id. '

34. Plaintiff underwent a rape kit,

having multiple contusions and bruises on her body and
genitalia. Id. Since the events of January 26, 2010 , Plaintiff
has suffered emotional distress and economic loss.

Id. ' ' 35-36.

Defendant was charged with seven criminal counts
against two female victims, Plaintiff Jane Doe and Mary Doe,
based on the same occurrences set forth in Plaintiff's civi l
Complaint here. A comparison of the unredacted version of
5

Plaintiff's Affidavit and the unredacted version of the criminal
trial transcript reveals that Counts One (rape in the first
degree), Two (criminal sexual act in the first agree), Three
(cr iminal sexual act in the first degree) , Four (sexual abuse in
the first degree), Five (attempted sexual abuse in the first
degree), and Six (assault in the second degree)
Defendant's crimes against Plaintiff. Id.

~

invo lved

38. The Seventh

Count (attempt to commit sexual abuse in the first degree)
involved Mary Doe. Id.

On February 15, 2012 , Defendant was convicted by a
jury of five of the criminal charges: rape in the first degree,
criminal sexual act in the first degree, sexual abuse in the
first degree, assault in the second degree, and attempted sexual
assault in the first degree.
to ten years in prison. Id.

III.

~

Id.
~

37. Defendant was sentenced

39.

The Applicable Standard

Summary judgment is appropriate on l y where "there is
no genuine issue as to any material fact and .

. the moving

party is entitled to a judgment as a matter of law."
Civ. P. 56(c).

Fed. R.

"[T]he substantive law will identify which facts

are material." Anderson v . Liberty Lobby, Inc.,
6

477 U.S. 242,

248

(1986). A dispute is "genuine" if "the evidence is such that

a reasonable jury could return a verdict for the nonmoving
party." Id. The relevant inquiry on application for summary
judgment is "whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law." Id.
at 251-52.

A court is not charged with weighing the evidence and
determining its truth, but with determining whether there is a
genuine issue for trial. Westinghouse Elec. Corp. v. N.Y. City
Transit Auth., 735 F. Supp. 1205, 1212 (S.D.N.Y. 1990)

(quoting

Anderson, 477 U.S. at 249). "[T]he mere existence of some

alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact."
Anderson, 477 U.S. at 247-48

(emphasis in original).

While the moving party bears the initial burden of
showing that no genuine issue of material fact exists, Atl. Mut.
Ins. Co. v. CSX Lines, L.L.C., 432 F.3d 428, 433

(2d Cir. 2005),

in cases where the non-moving party bears the burden of
persuasion at trial, "the burden on the moving party may be
discharged by 'showing'-that is, pointing out to the district
7

court-that there is an absence of evidence to support the
nonmoving party's case ." Celotex Corp . v . Catrett,

477 U.S. 317,

325 (1986). "It is ordinar il y sufficient for the movant to point
to a la ck of evidence

. on an essential e lement of the non-

movant's claim .

[T] he nonmoving party must [then ] come

forward with admissible evidence sufficient to raise a genuine
issue of fact for trial

" Jaramillo v. Weyerhaeuser Co .,

536 F.3d 140, 145 (2d Cir. 2008)

(internal citations omitted) ;

see also Goenaga v. March of Dimes Birth Defects Found.,
14, 18 (2d Cir. 1995)

51 F.3d

("Once the moving party has made a

properly supported showing suffic i ent to suggest the absence of
any genuine issue as to a material fact, the nonmoving party
. must come forward with evidence that would be sufficient to
support a jury verdict in his favor").

IV.

Plaintiff's Motion for Summary Judgment is Granted

Plaintiff moves for summary judgment on the ground of
co llat era l estoppel . See Pl.'s Mot. for Summ. Judgment

("Br .")

at 1. "Summary judgment is appropriate under the doctrine of
collateral estoppe l

(issue preclusion) when all the material

issues of fact in a pending action have been actua ll y and
necessarily resolved in a prior proceeding." See State of New
York v. Julius Nasso Concrete Corp ., 202 F . 3d 82, 86 (2d
8

Cir.2000); NLRB v. Thalbo Corp ., 171 F.3d 102, 109 (2d
Cir.1999). To warrant summary judgment on the basis of
collateral estoppel, "the court must find that:
in both proceedings are identical;

(1) the issues

(2) the issue in the prior

proceeding was actually litigated and actually decided,

(3)

there was full and fair opportunity to litigate in the prior
proceeding, and (4) the issue previously litigated was necessary
to support a va lid and final judgment on the merits."
v . Ageloff, 299 F. Supp. 2d 249, 252

(S .D.N.Y. 2004)

Mishkin

(citations

and internal quotation marks omitted) . Because Defendant's
convictions were entered in New York state courts and because
Plaintiff has brought this diversity action charging Defendant
with state tort claims, New York law governs. See Blumatte v.
Farthing, 320 F. App'x 68, 70

(2d Cir. 2009).

Plaintiff's argument here is the same argument she
made in her motion for summary judgment that was denied in the
May 6 , 2016 opinion (the "Ma y 6 Opinion " or the " Op inion" ) : that
her civil causes of action are "premised upon the same facts and
issues" as those that formed the bases of Defendant Ouanes '
criminal conviction, and therefore Ouanes "is collaterally
estopped from denying his liability for Plaintiff's civil
assault, battery, false imprisonment, and intentional infliction
of emotional distress claims." Br. at 1. "A criminal conviction,

9

whether by plea or after trial, is conclusive proof of its
underlying facts in a subsequent civil action and collaterally
estops a party from relitigating the issue." Grayes v. Distasio,
166 A.D.2d 261, 262-63, 560 N.Y.S.2d 636 (1990).

Ouanes' underlying criminal conviction certainly
concerned events that occurred at the Plaza Hotel on January 26,
2010. See Ouanes, 123 A.D.3d 480. The underlying criminal
conduct, however, involved two victims: Plaintiff in this
action, Jane Doe, and her friend Mary Doe, a non-party to this
action. Plaintiff alleges both victims drifted in and out of
consciousness, and both were assaulted by Ouanes. See FAC

~~

29,

33, 36, 40. Plaintiff alleges both Jane and Mary underwent rape
kits, both of which revealed relevant evidence. Id.

~~

47-9. The

Police Report, which alone cannot demonstrate the specifics of
the conduct for which Defendant was convicted, redacts victim
identification information.

The May 6 Opinion concluded that Plaintiff had failed
to establish that she-and not Mary Doe-was the victim of the
conduct for which Defendant was convicted, and therefore failed
to demonstrate an identity of issues between her civil claims
and Defendant's criminal conviction. In particular, the record
as provided by the Plaintiff at the time did not demonstrate
10

that Defendant's conviction applied to the conduct leveled upon
her.

While Plaintiff's argument here is the same, Plaintiff
has now provided additional evidence to further develop the
record on Defendant's convictions. Thus, contrary to Defendant's
assertion, Plaintiff's instant motion is not an exact "copy of"
the previous motion for summary judgment, see Def.'s Opp. to
Pl.' s Mot. for Summ. Judgment ("Opp.") at 1. Specifically,
Plaintiff has provided a transcript of Defendant's criminal
trial and identified which criminal counts pertained to
Defendant's conduct against Plaintiff rather than against Mary
Doe. See Br. at 4; Deel., Ex. F. She provides the language
Justice McCullough used to charge the jury on the counts, which
establish that Counts One through Six pertain to Plaintiff only;
Count Seven involved Mary Doe only. See Ex. F, 1329-50
(transcript of the instructions to the jury) .

Defendant was found guilty only of Counts One, Three,
Four, Five, and Six. See Br. at 4-6; Ex . F, 1393-94. The
instructions to the jury on those counts are set forth below:

11

Count One
[I]n order for you to find the defendant guilty of
[rape in the first degree], the People are required to
prove from all of the evidence in this case beyond a
reasonable doubt, both of the following elements: One,
that on or about January 26, 2010, in the County o f
New York, the defendant, Mustapha Ouanes, engaged in
sexual intercourse with [Jane Doe]. And two, that the
defendant did so without [Jane Doe]'s consent by the
use of force, forcible compulsion . Therefore, if you
find that the People have proven beyond a reasonable
doubt both of these elements, you must find the
defendant guilty of Rape in the First Degree, as
charged in the first count.
Ex. F, 1330-31.

Count Three
With respect to Count 3, in order for you to find the
defendant guilty of [criminal sexual act in the first
degree], the People are required to prove from all the
evidence in this case beyond a reasonable doubt, both
of the following two elements: One, that on or about
January 26 , 2010 , in the county of New York, the
defendant, Mustapha Ouanes, engaged in anal sexual
contact with [Jane Doe]. And two, that the defendant
did so without [Jane Doe]'s consent by use of forcible
compulsion. Therefore, if you find that the People
have proven both of these elements, you must find the
defendant guilty of the cr ime of Criminal Sexual Act
in the First Degree, as charged in the third count.
Ex. F, 1333.

Count Four
In order for you t o find the defendant guilty of this
crime, the People are required to prove from all of
the evidence in the case beyond a reasonable doubt,
both of the following two elements: That on or about
January 26, 2010, in the County of New York, the
12

defendant, Mustapha Ouanes, subjected [Jane Doe] to
sexual contact. And two, that [ Jane Doe] was incapable
of consent by reason of being physically helpless .
***
[I]f you find that the People have proven beyond a
reasonable doubt both of these elements, you must
consider , you must consider an affirmative defense
that the defense has raised.
***
[I]f you find that the defendant has not proven the
affirmative defense by a preponderance of the
evidence, then based upon your initial determination
that the People have proven beyond a reasonable doubt
the elements of Sexual Abuse in the First Degree, you
must find the defendant guilty of that crime as
charged in the fourth count.
Ex. F, 1 333-36.

Count Five
In order for you to find the defendant guilty an
attempt to commit the crime of Sexual Abuse in the
First Degree, the People are required to prove from
all of the evidence in the case beyond a reasonable
doubt, both of the following two elements: That on or
about January 26, 2010 , in the County of New York , the
defendant, Mustapha Ouanes , intended to commit the
crime of Sexual abuse in the First Degree against
[Jane Doe]. And two, the defendant engaged in conduct
which tended to effect the commission of that crime.
***
[I]f you find that the People have proven beyond a
reasonable doubt both of these elements , you must
consider an affirmative defense the defense has
raised.
***

13

[I]f you find that the defendant has not proven the
affirmative defense by a preponderance of the
evidence, then based upon your initial determination
that the People have proven beyond a reasonable doubt
the elements of Attempted Sexual Abuse in the First
Degree, you must find the defendant guilty of that
crime as charged in the [fifth] count .
Ex.

F,

1338-41.

Count Six
If you find the defendant guilty of Rape in the First
Degree, and or Criminal Sexual Act in the First
Degree, and or Sexual Abuse in the First Degree, then
you may go on to cons ider the following count, Assault
in the Second Degree. The sixth count is Assault in
the Second Degree.

***
In order for you to find the defendant guilty o f this
crime , the People are required to prove from all of
the evidence .
. beyond a reasonable doubt, both of
the following two elements : That on or about January
26, 2010, in the County of New York, the defendant,
Mustapha Ouanes , committed or attempted to commit any
of the charged crimes named above. And two , that in
the course and in furtherance of the commission or
attempted commission of any of the charged crimes
above, the defendant caused physical injury to [Jane
Doe], and that [Jane Doe] was not a participant in the
felony. Therefore, if you find that the People have
proven beyond a reasonable doubt both of these
elements, you must find the defendant guilty of the
crime of Assault in the Second Degree as charged in
the sixth count.
Ex.

F,

1340-41.

Under New York law, a "civil 'assault' is the
intentional placing of another in apprehension of imminent

14

harmful or offensive contact. The elements of a civil 'battery'
are

(1) bodily contact, which is

(2) harmful or offensive in

nature, and (3) made with intent." Biggs v. City of N.Y.,
CIV. 8123 PGG, 2010 WL 4628360, at *7

No. 08

(S.D.N.Y. Nov. 16, 2010)

(quoting Merzon v. Cty. of Suffolk, 767 F.Supp. 432,

448

(E.D.N.Y. 1991)). To establish a prima facie claim of assault
under New York law, a plaintiff must prove "physical conduct
placing the plaintiff in imminent apprehension of harmful
contact"; to establish a prima facie claim of battery, a
plaintiff must prove "that there was bodily contact, that the
contact was offensive, and that the defendant intended to make
the contact without the plaintiff's consent." Bastein v. Sotto,
299 A.D.2d 432,

433

(2d Dep't 2002); see also Villanueva v.

Comparetto, 180 A.D.2d 627, 629 (2d Dep't 1992)

("[A] plaintiff

seeking to establish a civil battery need only prove that the
defendant intentionally touched [her] person without

. her

consent."). Plaintiff's allegations herein that Defendant Ouanes
forcibly assaulted, raped, and sodimized her against her will
(Exhibit C,

facie,

~~

2, 15, 16, 18, 19, 20, 21, 27) establish, prima

the elements of her civil assault and battery claims.

In convicting Defendant Ouanes for rape of Plaintiff
in the first degree, criminal sexual act against Plaintiff in
the first degree, and assault of Plaintiff in the second degree,
15

the jury in the criminal proceeding necessarily determined that
the elements of the civil causes of action for assault and
battery have been satisfied, i.e., that the Defendant
intentionally made harmful contact with Plaintiff Jane Doe
without her consent and that his actions placed Plaintiff in
imminent apprehension of harmful contact. As such, Defendant
Ouanes is collaterally estopped from relitigating the issues of
civil assault and battery. See Villanueva, 180 A.D.2d at 629
(concluding that "in convicting [the defendant] of assault in
the second degree, the jury necessarily determined that he had
intentionally made bodily contact with [plaintiff] without
consent," and that the defendant was thus "collaterally estopped
from relitigating the issue of civil battery"); see also Wagman
v. Kandekore, 243 A.D.2d 628,

628

(2d Dep't 1997)

(affirming the

award of summary judgment on the issue of liability to the
plaintiffs on their civil assault and battery causes of action
against the defendant based upon collateral estoppel); Colby v.
Crocitto, 207 A.D.2d 764, 765

(2d Dep't 1994)

(affirming the

grant of summary judgment on the issue of liability in favor of
the plaintiffs on the basis of collateral estoppel and noting
that "a person who has been convicted of assault in the third
degree, based on the intentional infliction of injury, may not
relitigate the question of his potential civil liability for
assault and battery"); Laurie Marie M. v. Jeffrey T.M.,
16

159

A.D.2d 52, 55 (2d Dep't 1990)

(finding from prior proceeding

that defendant was guilty of sexual abuse in the second degree
pursuant to Penal Law§ 130.60 was proper basis for granting
plaintiff judgment as a matter of law on her battery cause of
action) .

To establish a cause of action for false imprisonment
pursuant to New York law, a plaintiff "must show that:
defendant intended to confine [her],
conscious of the confinement,

(1) the

(2) the plaintiff was

(3) the plaintiff did not consent

to the confinement and (4) the confinement was not otherwise
privileged." Broughton v. State, 37 N.Y.2d 451, 456 (1975); see
also Zegarelli-Pecheone v. New Hartford Cent. Sch. Dist., 13 2

A.D.3d 1258, 1259 (4th Dep't 2015)

(same). Here, Plaintiff's

allegations that Defendant Ouanes drugged her and forcibly
assaulted, raped, and sodimized her against her will in a hotel
room while she went in and out of consciousness,
2, 13-22, 27), establish, prima facie,

(Exhibit C,

~~

the elements of her civil

false imprisonment claim.

In convicting the Defendant of the false imprisonment
of Plaintiff Jane Doe, the jury in the criminal proceeding
necessarily determined that the elements of the civil cause of
action for false imprisonment has been satisfied, i.e., that the
17

Defendant intentionally confined Plaintiff without her consent
and without privilege by subjecting her to unwanted sexual
contact when she was incapable of consent by reason of being
physically helpless. As such, Defendant Ouanes is collaterally
estopped from relitigating the issue of civil false
imprisonment.

In New York, a cause of action for intentional
infliction of emotional distress "has four elements:
and outrageous conduct;

(i) extreme

(ii) intent to cause, or disregard of a

substantial probability of causing, severe emotional distress;
(iii) a causal connection between the conduct and injury; and
(iv) severe emotional distress." Howell v. New York Post Co., 81
N.Y.2d 115, 121 (1993); see also Johns v. Home Depot USA, Inc.,
No. 03CIV4522DC, 2005 WL 545210, at *7

(S.D.N.Y. Mar. 8, 2005),

aff'd sub nom. Johns v. Home Depot USA, Inc.,

(2d Cir. 2006)

180 F. App'x 190

(same). Here, Plaintiff's allegations that

Defendant Ouanes drugged her and forcibly assaulted, raped, and
sodimized her against her will in a hotel room while she went in
and out of consciousness,
establish, prima facie,

(Exhibit A,

~~

2, 13-22, 27),

the elements of her intentional

infliction of emotional distress claim.

18

In convicting Ouanes for rape in the first degree, a
criminal sexual act in the first degree, sexual abuse in the
first degree, attempt to commit sexual abuse in the first
degree, and assault in the second degree, the criminal jury
already necessari ly decided that Ouanes intentionally engaged in
extreme and outrageous conduct in disregard of a substantial
probability of causing severe emotional distress in Plaintiff
Jane Doe. See Laurie Marie M., 159 A.D.2d at 55 (finding from
prior proceeding that defendant was guilty of sexual abuse in
the second degree pursuant to Penal Law§ 130.60 was proper
basis for granting plaintiff judgment as a matter of law on her
intentional infliction of emotional distress cause of action) .

"The burden is on the party attempting to defeat the
application of col lateral estoppel to establish the absence of a
full and fair opportunity to litigate." D'Arata v. New York
Cent. Mut.

Fire Ins. Co., 76 N.Y.2d 659 , 664

(1990) . In opposing

the instant motion, Defendant Ouanes argues that "throughout
this case, the burden of proof was always on me." See Opp . at 8 .
To the contrary, at his trial, Justice McCullo ugh instructed the
jury at length about the presumption of inn ocence , its
application, and its imp ortance . See Ex. F., 1313-16. Indeed,
Defendant availed himself of the elements of a full and fair
trial: he was tried by a jury of his peers, he was represented
19

by counsel at the criminal trial, he had opportunity to present
evidence and to challenge the State's evidence, and he exercised
his appellate rights. That the First Department unanimously
affirmed Defendant Ouanes' convictions and sentence confirms
that he had a full and fair opportunity to litigate the issues
in his criminal action.

Defendant also argues that the civil lawsuit against
him, like the criminal case against him, is made up entirely of
lies; that is, he alleges that the facts as Plaintiff presents
them are not what actually transpired. See Opp. at 1-5, 8. The
determination as to what transpired on January 26, 2010 has
already been decided by a jury of the Defendant's peers. As
there is an identity of issues between the criminal proceeding
and this civil action, and because the Defendant had a full and
fair opportunity to litigate the issues bearing on his liability
for raping and assaulting Plaintiff Jane Doe during his criminal
trial, Defendant Ouanes is estopped from relitigating his civil
liability for those offenses in the present action. Accordingly,
Plaintiff Jane Doe is entitled to summary judgment as to
liability.

20

V.

Conclusion

Based upon the facts and conclusions set forth above,
Plaintiff's motion for summary judgment is granted.

It is so ordered.

New York, NY

Dec~~'

2016

U.S.D.J.

21