121 A.D.2d 620 | N.Y. App. Div. | 1986
In a negligence action to recover damages for personal injuries, etc., the defendants John Moscatello and John P. Moscatello appeal from so much of a judgment of the Supreme Court, Dutchess County (Benson, J.), dated November 20, 1984, as, upon a jury verdict on the issue of liability finding them 50% at fault in the happening of the accident and, upon a jury verdict on the issue of damages, is in favor of the plaintiff Hannelore Shea and against them in the principal amount of $500,000 and in favor of the plaintiff Dennis Shea and against them in the principal amount of $50,000.
Judgment reversed insofar as appealed from, on the law, with costs, and complaint dismissed as against the defendants John Moscatello and John P. Moscatello.
The issue presented here is whether there was legally sufficient evidence adduced at the trial to support a finding that at the time of the accident the defendant John Moscatello was engaged in a race with the defendant Bradley D. Kelly, the driver of the vehicle which struck the vehicle driven by the plaintiff Dennis Shea. Clearly, since no independent negligent act on the part of John Moscatello was ever established, liability may be imposed upon him and the defendant John P. Moscatello, the owner of the vehicle driven by John Moscatello, only if it is shown that John Moscatello was engaged in a concerted action with the defendant Kelly at the
Accordingly, the complaint as against the defendants John Moscatello and John P. Moscatello is dismissed. Niehoff, J. P., Rubin, Kunzeman and Spatt, JJ., concur.