| Pink v Ricci |
| 2012 NY Slip Op 07519 [100 AD3d 1446] |
| November 9, 2012 |
| Appellate Division, Fourth Department |
| Raymond Pink et al., Respondents, v Matthew Ricci,Appellant, and Mark Wilbur et al., Respondents, et al., Defendant. (Appeal No.1.) |
—[*1] Conway & Kirby, LLP, Latham (Andrew W. Kirby of counsel), for plaintiffs-respondents. Goldberg Segalla LLP, Syracuse (Cory Decresenza of counsel), for defendants-respondentsMark Wilbur and Christin Wilbur. Roemer Wallens Gold & Mineaux, LLP, Albany (Benjamin D. Heffley of counsel), fordefendants-respondents Rome Youth Hockey Association, Inc. and Whitestown Youth HockeyAssociation, Inc.
Appeal from an order and judgment (one paper) of the Supreme Court, Oneida County(Anthony F. Shaheen, J.), entered July 18, 2011 in a personal injury action. The order andjudgment denied the motion of defendant Matthew Ricci for leave to amend his answer, grantedthe cross motion of plaintiffs for partial summary judgment on liability against Matthew Ricciand granted the cross motions of defendants Rome Youth Hockey Association, Inc., WhitestownYouth Hockey Association, Inc., Mark Wilbur and Christin Wilbur for summary judgment ontheir cross claims for contribution against Matthew Ricci.
It is hereby ordered that said appeal from the order and judgment insofar as it granted thecross motions of defendants Mark Wilbur and Christin Wilbur and defendants Rome YouthHockey Association, Inc. and Whitestown Youth Hockey Association, Inc. for summaryjudgment on their cross claims for contribution against defendant Matthew Ricci is unanimouslydismissed and the order and judgment is modified on the law by denying the cross motion ofplaintiffs for partial summary judgment on the issue of liability with respect to defendantMatthew Ricci and as modified the order and judgment is affirmed without costs.[*2]
Memorandum: Plaintiffs commenced this action seekingdamages for injuries sustained by Raymond Pink (plaintiff) when Matthew Ricci (defendant)allegedly struck him during a fight that also involved fellow spectators at a youth hockey game.Defendant thereafter pleaded guilty to assault in connection with the fight. On a prior appeal, weconcluded, inter alia, that Supreme Court properly granted plaintiffs' motion to compel defendantto respond both to their discovery demands, which included requests for copies of all court andpolice records from the criminal proceedings against defendant, and to questioning during hisdeposition concerning those records (Pink v Ricci, 74 AD3d 1773, 1774 [2010]). We also concluded thatdefendant, through cross claims he asserted against the remaining defendants, waived hisstatutory privilege of confidentiality with respect to those records (id.).
In appeal No. 1, defendant appeals from an order and judgment that denied defendant'smotion for leave to amend his answer to assert an affirmative defense based on the emergencydoctrine, and granted plaintiffs' cross motion for partial summary judgment on liability againstdefendant. The order and judgment also granted the cross motions of defendants Mark Wilburand Christin Wilbur (collectively, Wilburs), and defendants Rome Youth Hockey Association,Inc. and Whitestown Youth Hockey Association, Inc. (collectively, hockey associations) forsummary judgment on their respective cross claims against defendant for contribution. In appealNo. 2, defendant appeals from an order that, upon reargument, adhered to the prior rulingsgranting the cross motions of the Wilburs and the hockey associations.
We note at the outset that we dismiss the appeal from the order and judgment in appeal No. 1insofar as it granted the respective cross motions of the Wilburs and the hockey associations forsummary judgment (see Loafin' Tree Rest. v Pardi [appeal No. 1], 162 AD2d 985, 985[1990]; see also Griffith Oil Co., Inc. vNational Union Fire Ins. Co. of Pittsburgh, Pa., 15 AD3d 982, 983 [2005]). Turning tothe merits of plaintiffs' cross motion for partial summary judgment in appeal No. 1 and the crossmotions of the Wilburs and the hockey associations for summary judgment, upon reargument, inappeal No. 2, we reject defendant's contention that the court erred in failing to deny the crossmotions as premature. " '[T]he fact that discovery has not been completed does not provide abasis to defeat [the cross] motion[s]' . . . inasmuch as [defendant] failed to establish'that facts essential to justify opposition [to the cross motions] may exist but cannot then bestated' " (Newman v Regent Contr.Corp., 31 AD3d 1133, 1134-1135 [2006]; see CPLR 3212 [f]).
We further conclude in appeal No. 1, however, that the court erred in granting plaintiffs'cross motion for summary judgment on liability. We therefore modify the order and judgment inthat appeal accordingly. "A criminal conviction may be given collateral estoppel effect in asubsequent civil litigation if there is an identity of issues and a full and fair opportunity to litigatein the first action" (Hooks v Middlebrooks, 99 AD2d 663, 663 [1984]). "A youthfuloffender adjudication is not a judgment of conviction for a crime or any other offense" (CPL720.35 [1]) but, because defendant affirmatively placed his conduct at issue by his cross claimsagainst the remaining defendants (Pink, 74 AD3d at 1774), his youthful offenderadjudication may be used for collateral estoppel purposes (see Green v Montgomery, 95NY2d 693, 701 [2001]; cf. Royal Globe Ins. Co. v Mottola, 89 AD2d 907, 907-908[1982]). Here, plaintiffs established the requisite " 'identity of issue,' " and defendant had a fulland fair opportunity to litigate the issue of his conduct in the underlying criminal matter (seeCaptain v Hamilton, 178 AD2d 938, 939 [1991]). Nevertheless, we further conclude that thecourt erred in granting plaintiffs' cross motion for partial summary judgment on liability, i.e.,negligence and proximate cause (seeStevens v Zukowski, 55 AD3d 1400, 1401 [2008]), because plaintiffs failed to establishthat defendant's conduct was the sole proximate cause of plaintiff's injuries (see Strychalski v Dailey, 65 AD3d546, 547 [2009]; cf. Kramer v Griffin, 156 AD2d 973, 973-974 [1989]).[*3]
We also conclude in appeal No. 2 that the court, uponreargument, erred in adhering to its prior decision granting the cross motions of the Wilburs andthe hockey associations for summary judgment on their cross claims against defendant forcontribution. "The right to contribution exists among persons who are subject to liability for thesame injury" (Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY,Book 7B, CPLR C1401:2 at 504), and reflects a "right of apportionment among tortfeasors basedon their actual degrees of fault as determined by the fact-finder" (CPLR C1401:1 at 502;see CPLR 1401, 1402). Here, there has been no apportionment of fault and, in view ofthe triable issues of fact as to the fault of the various parties, we conclude that the court shouldhave denied the cross motions for summary judgment on the contribution cross claims againstdefendant (see generally Walter vUnited Parcel Serv., Inc., 56 AD3d 1187, 1188 [2008]; Anderson v Jefferson-Utica Group,Inc., 26 AD3d 760, 761 [2006]; Young v Buffalo Color Corp., 255 AD2d 920,921 [1998]). We specify, however, that our denial of the cross motions seeking summaryjudgment on the cross claims for contribution is without prejudice to renewal at an appropriatetime.
Finally, contrary to defendant's contention in appeal No. 1, we conclude that the courtproperly denied his motion seeking leave to assert an affirmative defense based on the emergencydoctrine. " 'Generally, leave to amend a pleading should be freely granted in the absence ofprejudice to the nonmoving party where the amendment is not patently lacking in merit. . . , and the decision whether to grant leave to amend a complaint is committed tothe sound discretion of the court' " (Carro v Lyons Falls Pulp & Paper, Inc., 56 AD3d 1276, 1277[2008]; see CPLR 3025 [b]; Edenwald Contr. Co. v City of New York, 60 NY2d957, 959 [1983]). Here, the proposed amendment is lacking in merit (see generally Manufacturers & TradersTrust Co. v Reliance Ins. Co., 8 AD3d 1000, 1001 [2004]; Christiano v Chiarenza, 1 AD3d1039, 1040 [2003]). Present—Smith, J.P., Fahey, Sconiers, Valentino and Whalen, JJ.