| Nassau County District Court | May 19, 1975
The third-party defendant, Frances G. Marinello, is moving by way of notice of motion to dismiss the complaint of the third-party plaintiff, Jacob Schaffhauser, on
This cause of action arose as the result of an automobile accident between a motor vehicle owned by the plaintiff, Executive Equipment Corporation and operated by its lessee, Frances C. Marinello, the third-party defendant, and the vehicle owned and operated by the defendant and third-party plaintiff, Jacob Schaffhauser. The accident occurred when the vehicle owned by the plaintiff, Executive Equipment Corporation and operated by the third-party defendant, Frances C. Marinello, was stopped at an intersection, waiting to make a turn, when it was struck by the motor vehicle allegedly operated by the defendant and third-party plaintiff, Jacob Schaffhauser.
The plaintiff, Executive Equipment Corporation, sued the defendant, Jacob Schaffhauser, for property damage to its automobile, and the defendant, in turn, impleaded the third-party defendant, Frances C. Marinello, who was the lessee of the plaintiffs automobile, seeking to apportion any damages awarded to the plaintiff between the defendant and the third-party defendant.
The moving papers of the third-party defendant present still another gray area of the law created by the decision in Dole v Dow Chem. Co. (30 N.Y.2d 143" court="NY" date_filed="1972-03-22" href="https://app.midpage.ai/document/dole-v-dow-chemical-co-5527098?utm_source=webapp" opinion_id="5527098">30 NY 2d 143).
This court finds no fault with the third-party defendant’s interpretation of the decision in the case decided by the Court of Appeals of the State of New York in Continental Auto Lease Corp. v Campbell (19 NY2d 350), where the holding that the negligence of a driver cannot be imputed to the absentee owner of a vehicle is sound and is substantially in line with present-day decisions. (Smith v Ford Motor Co., 43 AD2d 965.)
Under the leasing contract, the plaintiff, Executive Equipment Corporation, is obligated to insure and hold the third-party defendant, Frances C. Marinello, harmless of any liability and to defend her against any claims which may be brought as a result of any auto accident.
To sustain the contention that the recovery over and against the third-party defendant in whole or in part is, in effect, a recovery against the plaintiff is in direct contravention of the holding in the Continental case (supra) and cannot be accepted by this court.
The basis of a third-party action is one for contribution only
The indemnity clause in the lease is separate and apart from the main action and there was consideration paid for by the third-party defendant as part of the cost and expense of leasing the car.
Based upon the foregoing, the motion to dismiss the complaint of the third-party plaintiff on the ground that it fails to state a cause of action is hereby denied.