Blum v. Good Humor Corp.
| Decision Date | 23 May 1977 |
| Citation | 57 A.D.2d 911,394 N.Y.S.2d 894 |
| Parties | Rosemarie BLUM, Appellant-Respondent, v. The GOOD HUMOR CORPORATION, Respondent-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Rein Mound & Cotton, New York City (Robert L. Horkitz, New York City, of counsel), for appellant-respondent.
Montfort, Healy, McGuire & Salley, Mineola (E. Richard Rimmels, Jr., Mineola, of counsel), for respondent-appellant.
Before MARTUSCELLO, J. P., and RABIN, MOLLEN and COHALAN, JJ.
MEMORANDUM BY THE COURT.
In an action for indemnification, the parties cross-appeal from an order of the Supreme Court, Nassau County, dated May 18, 1976, as follows: (1) plaintiff from so much of the order as denied the branch of her motion which sought the striking of the affirmative defense of laches from defendant's answer and (2) defendant from so much of the order as granted the branch of plaintiff's motion which sought the striking from the answer of the affirmative defense of Statute of Limitations.
Order affirmed insofar as appealed from, without costs or disbursements.
On July 12, 1970 the plaintiff, Rosemarie Blum, while driving her automobile, struck and injured one James Geraghty, two-years and eight-months old, who had just purchased ice cream from a truck allegedly owned by the defendant Good Humor Corporation, as he emerged from between the truck and an automobile parked behind it. An action was brought on behalf of the infant solely against the plaintiff herein and was subsequently settled for the sum of $70,000 on February 15, 1974. The defendant was not included in either the lawsuit or the settlement. About 13 months later, on March 2, 1975, the plaintiff commenced this action against the defendant for contribution.
New York is in accord with the general rule that such a claim does not accrue at the time of the commission of the tort, but rather at the time of payment of the underlying claim (Prosser, Torts (4th ed.), p. 309). This rule has been applied both to third-party complaints and separate actions (see Musco v. Conte, 22 A.D.2d 121, 254 N.Y.S.2d 589). Since the cause of action for contribution is based upon the fiction of an implied contract to ameliorate any inequity which results when a tort-feasor pays more than his share of the common liability (see Johnson v. Harvey, 84 N.Y. 363), the 6-year Statute of Limitations relating to implied contract is applicable (see CPLR 213). We therefore affirm the striking of the affirmative defense of Statute of Limitations.
But, in addition, the defendant interposed the defense of laches, claiming undue delay in the commencement of the action which imposed great prejudice upon it. We believe that defense is sufficient at law. Defendant contends that at no point from the day of the accident on July 12, 1970, through the date of settlement, February 15, 1974, until the date of the commencement of the action, March 2, 1975 a period exceeding four years, was it, or for that matter, its employee-operator of the truck, named in or put on notice of the action or settlement. Moreover, it appears that the truck driver was never identified, the police report never mentioned the presence of an ice cream truck and the defendant was never informed of the incident.
We note that even though this was a pre-Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (dec. Mar. 22, 1972) accident, and that the plaintiff was initially precluded from impleading the defendant Good Humor Corporation under the passive-active dichotomy, our courts gave Dole retroactive effect, even in cases where impleader may have been attempted but was previously barred (see Mosca v. Pensky, 41 A.D.2d 775, 342 N.Y.S.2d 76). Thus the plaintiff herein could have brought the defendant into the underlying action almost two years prior to the settlement.
It has long been held that a court may, where the facts alleged show a proper case for equitable relief, assume equitable jurisdiction of an action for contribution (Rindge v. Baker, 57 N.Y. 209), for the right to contribution is based upon principles of justice and equity which demand that those voluntarily assuming a common burden shall bear it proportionately. One party shall not be subject to bear more than his just share to the advantage of his co-obligors (Asylum of St. Vincent de Paul v. McGuire, 239 N.Y. 375, 146 N.E. 632). We believe that this is such a case.
In our opinion a gross injustice may be caused by allowing an inordinate time to elapse before a determination is made of the proportional responsibilities of all of the defendants. Therefore, although the action is not time-barred, the merits of defendant's affirmative defense of laches cannot be deemed insufficient as a matter of law and should be decided upon trial.
MARTUSCELLO, J. P., and RABIN and MOLLEN, JJ., concur.
COHALAN, Justice, concurs in the affirmance of the grant of the branch of plaintiff's motion which sought to dismiss the affirmative defense of Statute of Limitations, but otherwise dissents and votes to modify the order by granting the branch of her motion which sought to dismiss the affirmative defense of laches, with the following memorandum:
Special Term, Nassau County, granted the branch of plaintiff's motion which sought to strike the affirmative defense of Statute of Limitations and denied the branch of her motion to strike the affirmative defense of laches. I would affirm the first holding and reverse the second.
Rosemarie Blum (plaintiff), as an operator-owner, was involved in an accident on July 12, 1970 at about 5:00 P.M. when her car struck an infant who was then two-years and eight-months old. The child had come to the scene attracted by the Pied Piper lure of a Good Humor truck. After purchasing an ice cream cone, and while in the act of crossing the street, he was struck and injured by plaintiff's automobile.
An action was commenced on behalf of the child. It was settled in February, 1974. An order of compromise, having the effect of a judgment (see CPLR 1207), was duly entered, after which a payment of $70,000 was made in full satisfaction.
Blum now seeks contribution pursuant to CPLR 1402 to reimburse her, in whole or in part, for the moneys she has expended in defending and settling the infant's suit. Because...
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