Minnie L. Cox, Respondent, v. John Howell, Individually and Doing Business as A-Plus Plumbing and Electric and Others, Appellant

Minnie L. Cox, Respondent, v John Howell, Individually and Doing Business as A-Plus Plumbing and Electric and Others, Appellant. [MAJORITY] Order unanimously affirmed with costs. Memorandum: Supreme Court correctly determined that defendant is collaterally estopped from relitigating the wrongfulness of his own conduct; nevertheless, he is not precluded from litigating the issue of plaintiff’s comparative fault. Although plaintiff’s conduct was at issue in the criminal proceeding, the issue there was whether plaintiff’s conduct justified defendant’s conduct. That issue is not the same as the issue raised in this proceeding, i.e., whether plaintiff bears partial responsibility for instigating the confrontation. Whether plaintiff engaged in culpable conduct, and the relative degree of culpability between plaintiff and defendant, remain to be tried with the issue of damages (see, Jordan v Britton, 128 AD2d 315, 321-322). (Appeal from Order of Supreme Court, Monroe County, Siracuse, J.—Summary Judgment.) Present—Dillon, P. J., Denman, Balio, Lawton and Lowery, JJ.