Schuyler v. PerrySchuyler v. Perry
Schonberg Law Offices of the Hudson Valley, P.C., Central Valley (Susan R. Nudelman of counsel), for appellant.
O‘Connor Redd, LLP, White Plains (Panita Phanichayakarn of counsel), for respondent.
OPINION OF THE COURT
Dickerson, J.
The question before this Court is whether
The Collision
On September 13, 2005, the plaintiff was a passenger in a vehicle she owned, which was being driven by her then-boyfriend, the defendant Michael G. DiMicco. It is undisputed that DiMicco was operating the plaintiff‘s vehicle with the plaintiff‘s permission.
At the intersection of Holmes Road and South White Rock Road in Pawling, the plaintiff‘s vehicle collided with a vehicle driven by Perry. The plaintiff allegedly sustained injuries as a result of the collision.
The Pleadings
The plaintiff commenced this action by the filing of a summons and verified complaint dated April 18, 2006. In the sole cause of action, the plaintiff asserted that, on or about September 13, 2005, the vehicle she owned, which was being operated by DiMicco, collided with the vehicle operated by Perry. The plaintiff claimed that the accident and the serious injuries
Perry served an answer, largely denying all material allegations in the complaint. In a cross claim against DiMicco, Perry asserted that, if the plaintiff did sustain damages as a result of any negligence other than her own, these damages resulted from DiMicco‘s negligence. Accordingly, Perry asserted that, in the event that the plaintiff was awarded a judgment against her, DiMicco would be liable to Perry for any amount in excess of Perry‘s equitable share of the judgment.
Motion for Leave to Serve an Amended Answer
Four months after the plaintiff filed a note of issue, Perry moved pursuant to
Subsequently, Perry served a second proposed amended answer, refining the counterclaim by omitting the reference to the plaintiff‘s alleged “primary negligence” and by asserting that, if the plaintiff obtained a verdict against Perry, Perry could recover against DiMicco if he were found negligent, and the plaintiff would be statutorily liable for the same amount as DiMicco pursuant to
In an order dated June 9, 2008, the Supreme Court, over the plaintiff‘s and DiMicco‘s opposition, granted Perry‘s motion for leave to serve an amended answer. The court observed that ”
Discussion
CPLR 3025 (b)
“A party may amend his pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances.”
“Leave to amend pleadings should be freely given provided that the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit” (Gitlin v Chirinkin, 60 AD3d 901, 901-902 [2009]; see Sheila Props., Inc. v A Real Good Plumber, Inc., 59 AD3d 424, 426 [2009]; Boakye-Yiadom v Roosevelt Union Free School Dist., 57 AD3d 929, 931 [2008]). “A determination whether to grant such leave is within the Supreme Court‘s broad discretion, and the exercise of that discretion will not be lightly disturbed” (Gitlin v Chirinkin, 60 AD3d at 902; see Ingrami v Rouner, 45 AD3d 806, 808 [2007]).
Vehicle and Traffic Law § 388
“Every owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person
using or operating the same with the permission, express or implied, of such owner.” ( Vehicle and Traffic Law § 388 [1] .)
”
“The thrust of the statute is designed to give injured persons access to a financially responsible insured entity that might provide for a more realistic recovery of damages. The enactments also removed a hardship and imbalance which the common-law rule visited upon innocent persons; to wit, owners would not be permitted to evade responsibility by claiming that their vehicles were being used either without authority or not in the course of their business” (Mowczan v Bacon, 92 NY2d at 284 [citations omitted]; see Morris v Snappy Car Rental, 84 NY2d 21 [1994]; Continental Auto Lease Corp. v Campbell, 19 NY2d 350 [1967]).
Gochee, Kalechman and Related Cases
In Gochee v Wagner (257 NY 344, 345-346 [1931]), decided prior to the enactment of
In a case decided after Gochee, however, this Court stated that the statutory predecessor to
The Court of Appeals, in Continental Auto Lease Corp. v Campbell (19 NY2d at 352), in considering Vehicle and Traffic
“imputes to the owner of a motor vehicle the negligence of one who uses or operates it with his [or her] permission for the purpose of imposing on the owner liability to an injured third party. This enactment expresses the policy that one injured by the negligent operation of a motor vehicle should have recourse to a financially responsible defendant. The owner of the automobile is the obvious candidate, for he [or she] can most easily carry insurance to cover the risk.” (Continental Auto Lease Corp. v Campbell, 19 NY2d at 352.)
The Court of Appeals, in discussing Mills, stated, among other things, that the policy underlying the enactment of
In Kalechman, the plaintiff‘s decedent, Hersz Kalechman, was killed in a collision between a truck and a car owned by the defendant. Kalechman was a passenger in the vehicle at the time of the accident, and, as an employee of the lessee, he had custody and control of the vehicle (id. at 401). The lone defendant was the owner of the vehicle in which Kalechman was a passenger, and its liability rested solely on application of
“in Continental v. Campbell . . . we reaffirmed the
rule of Mills v. Gabriel (284 N.Y. 755) holding that section 388 of the Vehicle and Traffic Law which imputes to an absentee owner the negligence of his driver, for the purpose of imposing liability for injury to a third party, may not be used to impute contributory negligence to the absentee owner in an action to recover for property damages to his vehicle” (Kalechman v Drew Auto Rental, 33 NY2d at 404).
Ultimately, the Court of Appeals determined that
“the Gochee rule is based on an unrealistic fiction, conceptually flawed, serves no useful social purpose and frustrates the express public policy ‘that one injured by the negligent operation of a motor vehicle should have recourse to a financially responsible defendant. The owner of the automobile [being] the obvious candidate’ ” (id., quoting Continental Auto Lease Corp. v Campbell, 19 NY2d at 352).
The Court expressly stated that the Gochee rule “survive[d] only as a remnant of the past reflecting a period in the history of the common law when the relationship between the passenger and the driver was generally considered to be a relevant circumstance in determining the passenger‘s right to recover for injuries” (Kalechman v Drew Auto Rental, 33 NY2d at 404). It further held that the Gochee rule no longer had a place in the present scheme of tort liability (id.). The Court went on to explain that
“[c]learly we have reached the point where the general rule now is that the passenger‘s right to recover should not be barred merely because he bears some special relationship to the driver—a rule to which Gochee represents a somewhat incongruous exception” (Kalechman v Drew Auto Rental, 33 NY2d at 405).
The Court continued:
“We have therefore concluded that Gochee v. Wagner should be overruled, and that the general rule should be applied without exception by allowing the plaintiff passenger to recover for negligent operation of the vehicle—no matter what his relationship to the driver may be—unless it is shown that his own personal negligence contributed to the injury” (Kalechman v Drew Auto Rental, 33 NY2d at 405).
Based on Kalechman, PJI 2:250 now provides that a trial justice, instructing a jury as to the law of vicarious liability, should state:
“I have already instructed you that a vehicle owner who is sued as a defendant may, under certain circumstances, be held responsible for the negligence of the driver of the vehicle. However, the principle that the owner may be held responsible for the negligence of the driver does not apply to the owner‘s own lawsuit to recover for (personal injuries, property damage) sustained by the owner. The owner may recover for (personal injuries, property damages), even though negligence of the driver of the vehicle may have contributed to causing such (injuries, damages). The negligence of the driver, if any, has no effect on whether the owner may recover for (personal injuries, property damages).”
The comment to that instruction does note, inter alia, “that the above charge deals only with the imputation of contributory fault to the owner. An owner is responsible to others for negligence of one who uses the vehicle with the owner‘s permission” (1B NY PJI3d 2:250, at 1387 [2009]).
The Merits of Perry‘s Counterclaim
Here, Perry seeks to assert a counterclaim against the plaintiff “for the same amount as [DiMicco], pursuant to”
As set forth in Kalechman, the general rule, notwithstanding
Perry seeks to distinguish Kalechman on the basis that, in that case, the plaintiff‘s decedent, Hersz Kalechman, was a passenger but was not the owner of the vehicle. Perry‘s contention is without merit. The Court of Appeals observed that Kalechman, as the lessee‘s employee, had custody and control of the vehicle, and, accordingly, Gochee and its progeny would otherwise be applicable (Kalechman v Drew Auto Rental, 33 NY2d at 401). The Court nonetheless held that “[t]he sole issue on . . . appeal [wa]s whether the driver‘s negligence should be imputed to the passenger so as to bar any recovery against the owner under section 388 of the Vehicle and Traffic Law” (Kalechman v Drew Auto Rental, 33 NY2d at 399). Here, the plaintiff passenger owned the vehicle, DiMicco drove that vehicle with her permission, and she seeks to recover damages from both DiMicco and Perry for their alleged negligence. While the circumstances in Kalechman do not precisely duplicate those presented here, the principles espoused in Kalechman apply despite these factual differences.
Moreover, the manner in which Perry seeks to apply
Conclusion
The Supreme Court improvidently exercised its discretion in granting Perry‘s motion for leave to serve an amended answer, as the first proposed amended answer was palpably insufficient and patently devoid of merit, insofar as the counterclaim contained therein was based on allegations of the plaintiff‘s active or primary negligence or the plaintiff‘s vicarious liability for DiMicco‘s conduct, and the second proposed amended answer was palpably insufficient and patently devoid of merit, insofar as the counterclaim contained therein was based on allegations of the plaintiff‘s vicarious liability for DiMicco‘s conduct.
In light of our determination, we need not reach the plaintiff‘s remaining contention.
Accordingly, the order is reversed, on the law, and Perry‘s motion for leave to serve an amended answer to add a counterclaim is denied.
Spolzino, J.P., Covello and Angiolillo, JJ., concur.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendant Carmen M. Perry for leave to serve an amended answer to add a counterclaim is denied.