Marcroft v. Carvel Corp.
| Decision Date | 19 May 1986 |
| Citation | 120 A.D.2d 651,502 N.Y.S.2d 245 |
| Parties | Margaret E. MARCROFT, et al., Plaintiffs-Respondents, v. CARVEL CORPORATION, et al., Defendants third-party Plaintiffs-Appellants; Kenneth Kirschbaum, et al., third-party Defendants-Respondents, et al., third-party Defendants. |
| Court | New York Supreme Court — Appellate Division |
McCormick Dunne & Foley, New York City (Joseph P. Altman, Jr., and Robin Mary Heaney of counsel), for defendants third-party plaintiffs-appellants.
Pascarella, Illmensee & Carra, Garden City (James A. Pascarella and Lawrence V. Carra of counsel), for plaintiffs-respondents.
Mulholland, Minion & Roe, Williston Park (George Dieter of counsel), for third-party defendant-respondent Kenneth Kirschbaum.
Fried, Frank, Harris, Shriver & Jacobson, New York City (Marvin V. Ausubel, Rafael Ventura-Rosa and John A. Borek of counsel), for third-party defendant-respondent Chrysler Corp.
Before BROWN, J.P., and WEINSTEIN, NEIHOFF and SPATT, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Nassau County (Roberto, J.), dated January 7, 1985, which (1) granted the motions of the third-party defendants Kirschbaum and Chrysler Corporation to dismiss the third-party complaint, and (2) denied their cross motion for summary judgment dismissing the plaintiffs' action.
Order modified by granting the appellants' cross motion for summary judgment dismissing the plaintiffs' action. As so modified, order affirmed, without costs or disbursements.
The plaintiffs commenced this action against Carvel Corporation and its franchisees Philip and Yiola Vultaggio to recover damages for personal injuries sustained when an automobile driven by the third-party defendant Kenneth Kirschbaum went out of control and crashed into the appellants' ice cream store, striking the plaintiffs who were customers of the store. A previous action by the plaintiffs against the third-party denfendants Kirschbaum and Chrysler Corporation was settled prior to the commencement of this action.
Special Term correctly granted the motions of Kirschbaum and Chrysler Corporation to dismiss the third-party complaint, in that the prior settlement released the third-party defendants from any further liability for contribution (see, General Obligations Law § 15-108). Special Term should have additionally granted the appellants' cross motion for summary judgment against the plaintiffs. The plaintiffs' complaint alleged that the appellants negligently failed to protect them against the foreseeable risk of a vehicle "encroaching upon their structure". The duty imposed upon the appellants was to use...
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