| Pink v Ricci |
| 2010 NY Slip Op 05074 [74 AD3d 1773] |
| June 11, 2010 |
| Appellate Division, Fourth Department |
| Raymond Pink et al., Respondents, v Matthew Ricci, Appellant,and Mark Wilbur et al., Respondents, et al, Defendant. |
—[*1] Conway & Kirby, LLP, Latham (Andrew W. Kirby of counsel), for plaintiffs-respondents. Goldberg Segalla LLP, Syracuse (David E. Leach of counsel), for defendants-respondentsMark Wilbur and Christin Wilbur. Roemer Wallens & Mineaux, LLP, Albany (Matthew J. Kelly of counsel), fordefendants-respondents Rome Youth Hockey Association, Inc. and Whitestown Youth HockeyAssociation, Inc.
Appeal from an order of the Supreme Court, Oneida County (Anthony F. Shaheen, J.),entered October 1, 2009 in a personal injury action. The order, inter alia, granted the motion ofplaintiffs to compel defendant Matthew Ricci to comply with disclosure.
It is hereby ordered that the order so appealed from is unanimously modified on the law byvacating the directive that defendant Matthew Ricci fully respond to certain trial questioning andas modified the order is affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained byRaymond Pink (plaintiff) when Matthew Ricci (defendant) allegedly struck him during a fightthat also involved other fellow spectators at a youth hockey game. Defendant thereafter pleadedguilty to assault in connection with the fight. Plaintiffs moved, inter alia, to compel defendant torespond to plaintiffs' discovery demands, which included requests for copies of all court andpolice records from the criminal proceedings against defendant. In addition, plaintiffs sought tocompel defendant to respond to questioning during his deposition concerning the records soughtand the criminal proceedings. Defendant cross-moved, inter alia, for a protective order withrespect to the records involving the criminal proceedings (first cross motion), and thereafter[*2]cross-moved to dismiss his own counterclaim (second crossmotion), which asserted that plaintiff and others acting in concert with him caused defendant toexperience "a great deal of emotional stress, anxiety and, upon information and belief, physicalinjury." Plaintiffs did not oppose the second cross motion, and Supreme Court granted it. Weconclude that the court properly granted plaintiffs' motion to compel and denied defendant's firstcross motion. Defendant did not regain his statutory privilege of confidentiality by virtue of hishaving withdrawn his counterclaim inasmuch as his similar cross claims against the remainingdefendants remain viable (see Best v2170 5th Ave. Corp., 60 AD3d 405 [2009]; Rodriguez v Ford Motor Co., 301AD2d 372 [2003]; Lott v Great E. Mall, 87 AD2d 978 [1982]; see generally Green vMontgomery, 95 NY2d 693, 701 [2001]; Commercial Union Ins. Co. v Jones, 216AD2d 967 [1995]). We further conclude, however, that the court erred in sua sponte directingdefendant "to fully respond to . . . trial questioning on the issue of his arrest andcriminal proceedings arising from the [fight]," and we therefore modify the order by vacatingthat directive. The admissibility of evidence at trial lies primarily within the discretion of thetrial court rather than the motion court (see generally Carlson v Porter [appeal No. 2], 53AD3d 1129, 1132 [2008], lv denied 11 NY3d 708 [2008]; Goldner v Kemper Ins.Co., 152 AD2d 936 [1989], lv denied 75 NY2d 704 [1990]).Present—Martoche, J.P., Smith, Fahey, Peradotto and Green, JJ.