Caucci v. Fesko

This is a motion by the defendants Fesko and 3M Business Products Sales, Inc., for contribution pursuant to CPLR 1401. Defendant Caggiano cross-moves for apportionment of liability under the principles of Dole v. Dow Chem. Co. (30 N Y 2d 143) and its progeny (Kelly v. Long Is. Light Co., 31 N Y 2d 25). The question presented to the court is whether, after a post-Dow trial and appeal, apportionment may be had based upon respective fault where that issue was not expressly presented in the prior proceedings.

Before determining the motions, a recital of the salient facts is essential: On May 22,…