Brown v. Middleton

• Decision Date: 03 November 1997
• Citation: 244 A.D.2d 306,664 N.Y.S.2d 65
• Parties: , 1997 N.Y. Slip Op. 9187 Sam BROWN, et al., Respondents, v. Matthew MIDDLETON, et al., Defendants Third-Party Plaintiffs-Appellants, et al., Defendants; Mendon Leasing Corporation, Third-Party Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 65

664 N.Y.S.2d 65

244 A.D.2d 306, 1997 N.Y. Slip Op. 9187

Sam BROWN, et al., Respondents, v. Matthew MIDDLETON, et al., Defendants Third-Party Plaintiffs-Appellants et al., Defendants Mendon Leasing Corporation, Third-Party Defendant-Appellant.

Supreme Court, Appellate Division Second Department.

Nov. 3, 1997.

Shatzkin & Reiss, New York City (Howard R. Reiss, of counsel), for defendants third-party plaintiffs-appellants.

James P. O'Connor (Morris, Duffy, Alonso & Faley, LLP, New York City [Irwin H. Haut], of counsel), for third-party defendant-appellant.

Gardiner & Nolan, Brooklyn (Thomas Torto and Kevin Fitzpatrick, of counsel), for respondents.

Before MILLER, J.P., and RITTER, KRAUSMAN and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the defendants Matthew Middleton, Dependable Delivery Service, Inc., and Jord-Amy Trucking Corporation appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Kramer, J.), dated August 2, 1996, as, upon a jury verdict finding Matthew Middleton 34% at fault in the happening of the accident, the plaintiff Sam Brown 36% at fault, and the third-party defendant Mendon Leasing Corporation 30% at fault, and awarding the plaintiff Sam Brown the sum of $910,000 for past pain and suffering and $650,000 for future pain and suffering, and awarding the plaintiff Lula Brown $490,000 for loss of services, (1) denied that branch of their motion pursuant to CPLR 4404 which was for judgment as a matter of law or to set aside the verdict on the issue of liability and for a new trial, (2) denied that branch of their motion which was to reduce the damages awarded to Sam Brown for past and future pain and suffering, and (3) granted that branch of their motion which was to reduce the damages awarded to Lula Brown for loss of services only to the extent of ordering a new trial on the issue of damages for loss of services unless the plaintiff Lula Brown stipulated to reduce those damages to $150,000. The third-party defendant separately appeals, as limited by its notice of appeal and brief, from so much of the same order as denied its motion pursuant to CPLR 4404 for judgment as a matter of law or to set aside the verdict on the issue of liability and for a new trial.

ORDERED that the appeal from so much of the order as (1) denied that branch of the motion of the defendants Matthew Middleton, Dependable Delivery Service, Inc., and Jord-Amy Trucking Corporation which was to reduce the damages for past and future pain and suffering awarded to Sam Brown, and (2) granted that branch of their motion which was to reduce the damages awarded to Lula Brown only to the extent of reducing those damages to $150,000, is dismissed, without costs or disbursements, for failure to perfect the same in accordance with the CPLR and the rules of this court (see, 22 NYCRR 670.9; CPLR 5528[a][5] ); and it is further,

ORDERED that the order is modified by deleting the provision thereof which denied that branch of the third-party defendant's motion which was for judgment as a matter of law, and substituting therefor a provision granting that branch of the third-party defendant's motion, and dismissing the complaint and all cross claims insofar as asserted against it; as so modified, the order is affirmed insofar as reviewed, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for a new trial on the issue of the apportionment of fault between the plaintiff Sam Brown and the defendant Matthew Middleton.

The plaintiff Sam Brown was seriously injured when he was struck by a truck driven by the defendant Matthew Middleton and leased by the corporate defendants, Dependable Delivery Service, Inc., and Jord-Amy Trucking Corporation (hereinafter collectively the defendants), from the third-party defendant Mendon Leasing Company (hereinafter Mendon). At the time of the accident, Brown was employed by Mendon as a yardman, and his duties included ensuring that leased trucks were not removed from Mendon's lot without proper authorization. The testimony presented at trial reveals that on the evening of September 12, 1991, Middleton received permission from his employer to use the leased truck he had been driving during business hours. When Middleton and a friend went to the Mendon lot to get the truck, Brown would not allow them to take it...