        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1188
CA 12-00377
PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ.


RAYMOND PINK AND MICHELLE PINK,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

MATTHEW RICCI, DEFENDANT-APPELLANT,
MARK WILBUR, CHRISTIN WILBUR, ROME YOUTH
HOCKEY ASSOCIATION, INC., WHITESTOWN YOUTH
HOCKEY ASSOCIATION, INC., CITY OF ROME,
DEFENDANTS-RESPONDENTS,
ET AL., DEFENDANT.
(APPEAL NO. 1.)


HISCOCK & BARCLAY, LLP, SYRACUSE (MATTHEW J. LARKIN OF COUNSEL), FOR
DEFENDANT-APPELLANT.

CONWAY & KIRBY, LLP, LATHAM (ANDREW W. KIRBY OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.

GOLDBERG SEGALLA LLP, SYRACUSE (CORY DECRESENZA OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS MARK WILBUR AND CHRISTIN WILBUR.

ROEMER WALLENS GOLD & MINEAUX, LLP, ALBANY (BENJAMIN D. HEFFLEY OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS ROME YOUTH HOCKEY ASSOCIATION,
INC. AND WHITESTOWN YOUTH HOCKEY ASSOCIATION, 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 and judgment denied the motion
of defendant Matthew Ricci for leave to amend his answer, granted the
cross motion of plaintiffs for partial summary judgment on liability
against Matthew Ricci and granted the cross motions of defendants Rome
Youth Hockey Association, Inc., Whitestown Youth Hockey Association,
Inc., Mark Wilbur and Christin Wilbur for summary judgment on their
cross claims for contribution against Matthew Ricci.

     It is hereby ORDERED that said appeal from the order and judgment
insofar as it granted the cross motions of defendants Mark Wilbur and
Christin Wilbur and defendants Rome Youth Hockey Association, Inc. and
Whitestown Youth Hockey Association, Inc. for summary judgment on
their cross claims for contribution against defendant Matthew Ricci is
unanimously dismissed and the order and judgment is modified on the
law by denying the cross motion of plaintiffs for partial summary
judgment on the issue of liability with respect to defendant Matthew
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                                                         CA 12-00377

Ricci and as modified the order and judgment is affirmed without
costs.

     Memorandum: Plaintiffs commenced this action seeking damages 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, we concluded, inter alia, that Supreme Court properly granted
plaintiffs’ motion to compel defendant to respond both to their
discovery demands, which included requests for copies of all court and
police records from the criminal proceedings against defendant, and to
questioning during his deposition concerning those records (Pink v
Ricci, 74 AD3d 1773, 1774). We also concluded that defendant, through
cross claims he asserted against the remaining defendants, waived his
statutory privilege of confidentiality with respect to those records
(id.).

     In appeal No. 1, defendant appeals from an order and judgment
that denied defendant’s motion for leave to amend his answer to assert
an affirmative defense based on the emergency doctrine, and granted
plaintiffs’ cross motion for partial summary judgment on liability
against defendant. The order and judgment also granted the cross
motions of defendants Mark Wilbur and Christin Wilbur (collectively,
Wilburs), and defendants Rome Youth Hockey Association, Inc. and
Whitestown Youth Hockey Association, Inc. (collectively, hockey
associations) for summary judgment on their respective cross claims
against defendant for contribution. In appeal No. 2, defendant
appeals from an order that, upon reargument, adhered to the prior
rulings granting 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. 1 insofar as it granted the respective
cross motions of the Wilburs and the hockey associations for summary
judgment (see Loafin’ Tree Rest. v Pardi [appeal No. 1], 162 AD2d 985,
985; see also Griffith Oil Co., Inc. v National Union Fire Ins. Co. of
Pittsburgh, Pa., 15 AD3d 982, 983). Turning to the merits of
plaintiffs’ cross motion for partial summary judgment in appeal No. 1
and the cross motions of the Wilburs and the hockey associations for
summary judgment, upon reargument, in appeal No. 2, we reject
defendant’s contention that the court erred in failing to deny the
cross motions as premature. “ ‘[T]he fact that discovery has not been
completed does not provide a basis 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 be
stated’ ” (Newman v Regent Contr. Corp., 31 AD3d 1133, 1134-1135; 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 in that appeal
accordingly. “A criminal conviction may be given collateral estoppel
effect in a subsequent civil litigation if there is an identity of
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                                                         CA 12-00377

issues and a full and fair opportunity to litigate in the first
action” (Hooks v Middlebrooks, 99 AD2d 663, 663). “A youthful
offender adjudication is not a judgment of conviction for a crime or
any other offense” (CPL 720.35 [1]) but, because defendant
affirmatively placed his conduct at issue by his cross claims against
the remaining defendants (Pink, 74 AD3d at 1774), his youthful
offender adjudication may be used for collateral estoppel purposes
(see Green v Montgomery, 95 NY2d 693, 701; cf. Royal Globe Ins. Co. v
Mottola, 89 AD2d 907, 907-908). Here, plaintiffs established the
requisite “ ‘identity of issue,’ ” and defendant had a full and fair
opportunity to litigate the issue of his conduct in the underlying
criminal matter (see Captain v Hamilton, 178 AD2d 938, 939).
Nevertheless, we further conclude that the court erred in granting
plaintiffs’ cross motion for partial summary judgment on liability,
i.e., negligence and proximate cause (see Stevens v Zukowski, 55 AD3d
1400, 1401), because plaintiffs failed to establish that defendant’s
conduct was the sole proximate cause of plaintiff’s injuries (see
Strychalski v Dailey, 65 AD3d 546, 547; cf. Kramer v Griffin, 156 AD2d
973, 973-974).

     We also conclude in appeal No. 2 that the court, upon reargument,
erred in adhering to its prior decision granting the cross motions of
the Wilburs and the hockey associations for summary judgment on their
cross claims against defendant for contribution. “The right to
contribution exists among persons who are subject to liability for the
same injury” (Vincent C. Alexander, Practice Commentaries, McKinneys
Cons Laws of NY, Book 7B, CPLR C1401:2, at 504), and reflects a “right
of apportionment among tortfeasors based on 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 of the triable issues of fact as to the fault of the
various parties, we conclude that the court should have denied the
cross motions for summary judgment on the contribution cross claims
against defendant (see generally Walter v United Parcel Serv., Inc.,
56 AD3d 1187, 1188; Anderson v Jefferson-Utica Group, Inc., 26 AD3d
760, 761; Young v Buffalo Color Corp., 255 AD2d 920, 921). We
specify, however, that our denial of the cross motions seeking summary
judgment on the cross claims for contribution is without prejudice to
renewal at an appropriate time.

     Finally, contrary to defendant’s contention in appeal No. 1, we
conclude that the court properly denied his motion seeking leave to
assert an affirmative defense based on the emergency doctrine.
“ ‘Generally, leave to amend a pleading should be freely granted in
the absence of prejudice 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 to the sound discretion
of the court’ ” (Carro v Lyons Falls Pulp & Paper, Inc., 56 AD3d 1276,
1277; see CPLR 3025 [b]; Edenwald Contr. Co. v City of New York, 60
NY2d 957, 959). Here, the proposed amendment is lacking in merit (see
generally Manufacturers & Traders Trust Co. v Reliance Ins. Co., 8
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                                                         CA 12-00377

AD3d 1000, 1001; Christiano v Chiarenza, 1 AD3d 1039, 1040).




Entered:   November 9, 2012                    Frances E. Cafarell
                                               Clerk of the Court
