¶1I dissent and would affirm the denial at Special Term of the motion to dismiss. I assume the validity of the criteria set out in the majority opinion as applicable to a showing of collateral estoppel by the defendant. But the very first stated test has not been met: “ that the operative facts were in issue -on the prior proceeding.” Whatever the label placed on the alleged malpractice, threat or coercion, its essential core seems to be just plain bad legal advice to take a plea of guilty. This is not to say that the advice was either good or bad, but plaintiff might, given the opportunity, be able to prove that he had available a good defense to the indictment. The point is that, there not having been a hearing except technically, we do not know.
¶2Which leads to the second test: decision adverse to the present complaint. What is quoted as that decision is, again, the finding against threat or coercion. Beading the complaint as a whole, it charges, in effect, that defendant did not use his legal skills properly in his client’s, behalf. The “ coercion ” was merely the *450process by which the lawyer told his client what to do. In this context, it is not necessary to speak to the third test: failure to take advantage of the opportunity afforded to establish the facts. It may be observed, however, that plaintiff’s exercise of poor judgment, when he had new counsel, in not taking advantage of the court’s offer to grant an application to withdraw the plea, should not relieve defendant of the charge of malpractice, said to have been committed earlier.
¶3In short, we should not invoke collateral estoppel when so many doubts, exist as to whether what happened earlier should operate now as a bar to plaintiff’s claim. The facts relied on to establish estoppel should be established far more clearly and convincingly than they are here.
¶4Stevens, P. J., and Ktjpfeeman, J., concur with Steuer, J.; Markewich, J., dissents in an opinion in which McGtvern, J., concurs.
¶5Order, Supreme Court, Bronx County, entered on December 15, 1971, reversed, on the law, the motion granted and the complaint dismissed. Appellant shall recover $60 costs and disbursements of this appeal.