Royal Globe Ins. Co. v. Mottola

• Decision Date: 23 August 1982
• Citation: 453 N.Y.S.2d 723,89 A.D.2d 907
• Parties: ROYAL GLOBE INSURANCE COMPANY, Respondent, v. Arthur B. MOTTOLA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 723

453 N.Y.S.2d 723

89 A.D.2d 907

ROYAL GLOBE INSURANCE COMPANY, Respondent, v. Arthur B. MOTTOLA, Appellant.

Supreme Court, Appellate Division Second Department.

Aug. 23, 1982.

Siben & Siben, Bay Shore (Mitchell L. Rosenblatt, Old Westbury, of counsel), for appellant.

Whitman & Ransom, New York City (Walter P. Kelly and Robert S. Newman, New York City, of counsel), for respondent.

Before DAMIANI, J. P., and LAZER, MANGANO and BROWN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for the intentional tort of arson or for negligence in causing a fire, defendant appeals, as limited by his brief, from (1) so much of an order of the Supreme Court, Nassau County, dated August 29, 1979, as granted plaintiff's cross motion for partial summary judgment on the issue of liability and (2) so much of a judgment of the same court, dated March 13, 1981, as was entered upon said order after an assessment of damages.

Appeal from the order dismissed, without costs or disbursements (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).

Judgment reversed insofar as appealed from, on the law, without costs or disbursements; order vacated insofar as it granted plaintiff's cross motion, and the cross motion is denied, without prejudice to renewal after further proceedings in accordance with the memorandum herein.

This is an action by a subrogee fire insurer to recover damages for the intentional tort of arson, or for negligence in causing fire damage to its insured's building, against the incendiary, one Mottola. Plaintiff cross-moved for partial summary judgment on the issue of liability, alleging that in prior criminal proceedings in the County Court, Suffolk County, the defendant had, in pleading guilty to arson in the fourth degree, admitted setting the fire which was the subject of this civil action. The criminal conviction had been vacated and replaced with a youthful offender adjudication. In support of its application for an award of partial summary judgment, plaintiff annexed a copy of the plea minutes leading to that adjudication. Special Term granted partial summary judgment upon the ground that defendant's admissions at the time of the plea, and the adjudication itself, collaterally estopped defendant from denying civil liability for the fire. On appeal defendant contends that Special Term erred in considering the plea minutes and the youthful offender adjudication as the basis for issue preclusion on the question of liability.

Subdivision 2 of CPL 720.35 states:

"Except where specifically required or permitted by statute or upon specific authorization of the court, all official records and papers, whether on file...