Albert v. Guerrero

• Decision Date: 21 February 1980
• Citation: 103 Misc.2d 530,426 N.Y.S.2d 393
• Parties: Marvin P. ALBERT, Plaintiff, v. Michael J. GUERRERO and Joseph Guerrero, Defendants.
• Court: New York Supreme Court

Page 393

426 N.Y.S.2d 393

103 Misc.2d 530

Marvin P. ALBERT, Plaintiff, v. Michael J. GUERRERO and Joseph Guerrero, Defendants.

Supreme Court, Special Term, Nassau County, Part I.

Feb. 21, 1980.

Rosenberg, Rosenberg & Ehrlich, Garden City, for plaintiff.

James F. Rogan, Garden City, for defendants.

ELI WAGER, Justice.

The issue on this motion is the permissible scope of discovery in an automobile negligence action where the driver and the owner are sought to be held on separate theories of liability and where punitive damages are claimed against each. The injured plaintiff moves to compel the defendant owner of the vehicle involved in the accident, Joseph Guerrero ("Joseph") to submit to an examination before trial, to compel the defendant driver, Michael J. Guerrero ("Michael") to appear for a continuation of his examination before trial and to direct both defendants to respond to questions relating, inter alia, to Michael's allegedly criminal driving history.

The claim for punitive damages against Michael is predicated on the allegation that he evidenced a "high degree of moral turpitude" as evidenced by the facts that (1) in 1975 he was twice charged with unauthorized use of a motor vehicle and pleaded guilty to disorderly conduct and was on another occasion charged with driving while intoxicated; (2) in 1978 his license was suspended for failing to answer a summons and he subsequently obtained a temporary driving license based upon an application which stated that his license had not been suspended and that he had never been convicted of a crime, offense or traffic infraction; and (3) at the time of the accident he was not only driving with the "fraudulently" obtained license but was also driving while intoxicated and pleaded guilty to driving while impaired. The cause of action against Michael's father, the defendant Joseph, is predicated not only on ownership and permission (Vehicle and Traffic Law § 388) but also on the allegation that he assisted Michael in obtaining the "fraudulent" license and that he made his automobile available to Michael knowing that Michael was a "menace to society". The claim for punitive damages against Joseph is based on the latter allegations. Thus, plaintiff seeks to depose Michael with respect to past events as well as with respect to his activities on the night of the accident and he seeks to depose Joseph with respect to his knowledge of these events.

An examination of Michael commenced on August 15, 1979 was interrupted at various points by his attorney's objections to the line of questioning and by a ruling by Mr. Justice Pittoni of this Court which was sought when the defense objected to this question:

"Was your license ever suspended before the suspension resulting from the accident?"

Justice Pittoni ruled as follows:

"THE COURT: The issue in the case at the present time is whether he was a careful driver at the time of the occurrence, whether he had a license or not, that's the law; and the issue whether his license was revoked is not an issue. It's a prejudicial question.

(Discussion off the record.)

"THE COURT: Objection sustained.

"You're going so far afield at the trial if you raise an issue like that, it might cause a mistrial.

"Punitive damage is based on what that man did on that particular day, which requires punishment on that particular day. It has nothing to do what he did to the Plaintiff."

The examination ended when plaintiff's attorney, after more objections, stated that he was seeking an adjournment for the purpose of making a "formal application to the Court".

Justice Pittoni's ruling is law of the case with respect to the case against Michael (Collins, Inc. v. Olsker-McLain Ind., 22 A.D.2d 485, 257 N.Y.S.2d 201) and thus Michael may not be questioned about his "criminal history" as requested in paragraph 1 (p. 13) of plaintiff's moving affidavit or with respect to the issue of his license as requested in paragraphs 2, 3 and 4. However, inquiry may be made concerning Michael's activities on the day of the accident as requested in paragraph 5. Such matters particularly testimony relating to his consumption of alcohol may be relevant not only on the issue of negligence generally but on the issue of punitive damages as well (see Colligan v. Fera, 76 Misc.2d 22, 349 N.Y.S.2d 306; Anno., 65 A.L.R.3d 656; see generally Le Mistral v. CBS, 61 A.D.2d 491, 402 N.Y.S.2d 815).

It appears that no ruling was sought or made with respect to the relevancy of the line of questioning to the case against...