Cannistra v. Gibbons

• Decision Date: 20 February 1996
• Citation: 639 N.Y.S.2d 48,224 A.D.2d 570
• Parties: Edmund J. CANNISTRA, an Infant, by His Parent and Natural Guardian, Joseph E. Cannistra, et al., Appellants-Respondents, v. Robert S. GIBBONS, et al., Defendants, Donald Gibbons, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 48

639 N.Y.S.2d 48

224 A.D.2d 570

Edmund J. CANNISTRA, an Infant, by His Parent and NaturalGuardian, Joseph E. Cannistra, et al Appellants-Respondents, v.Robert S. GIBBONS, et al., DefendantsDonald Gibbons, Respondent-Appellant.

Supreme Court, Appellate Division Second Department.

Feb. 20, 1996.

Banks Pickett Gruen & Shapiro, L.L.P., Mount Kisco (Mona D. Shapiro, Steven E. Waldinger, and Kelli M. O'Brien, of counsel), for appellants-respondents.

Feltman, Karesh, Major & Farbman, New York City(Jeffrey H. Daichman, of counsel), for respondent-appellant.

Before MANGANO, P.J., and MILLER, RITTER and PIZZUTO, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from so much of an order of the Supreme Court, Putnam County(Hickman, J.), dated March 13, 1995, as, upon renewal, adhered to a prior determination granting the cross motion of the defendantDonald Gibbons to dismiss the complaint insofar as it is asserted against him, and the defendantDonald Gibbons cross-appeals from so much of the same order as granted the branch of the plaintiffs' motion which was for renewal.

ORDERED that the order is reversed insofar as cross-appealed from, the branch of the motion which was for renewal is denied, and the balance of the order, adhering to the original determination, is vacated; and it is further,

ORDERED that the appeal by the plaintiffs is dismissed as academic in light of the determination on the cross appeal; and it is further,

ORDERED that defendantDonald Gibbons is awarded costs.

The instant appeal marks the fourth time this case has been before this court(see, Matter of Cannistra v. Town of Putnam Val., 124 A.D.2d 801, 508 N.Y.S.2d 524;Cannistra v. County of Putnam, 139 A.D.2d 479, 526 N.Y.S.2d 841;Cannistra v. Town of Putnam Val., 177 A.D.2d 536, 576 N.Y.S.2d 285).The incident giving rise to this case was a 1984 automobile accident in which the infant plaintiff, who was a passenger in a car being driven by the defendantRobert Gibbons, was seriously injured when the car struck a truck which was parked partially in the lane of traffic.The car was owned by Robert Gibbons' mother, the defendantJoan Gibbons, in whose name the car was registered.

In 1986, the defendantDonald Gibbons cross-moved to dismiss the first cause of action insofar as it sought to hold him liable for the negligence of his son in the operation of the car owned by his wife.The Supreme Court(Dickinson, J.), denied the cross-motion but this court modified that order, inter alia, by granting the cross-motion.In a decision and order, dated April 4, 1988, this court found that the ownership documents in the name of the defendantJoan Gibbons created a presumption of "true ownership" of the car which the plaintiffs had not rebutted.Since there was otherwise no evidence to warrant a finding that the defendantDonald Gibbons had any other connection with the car, the complaint as against him was dismissed (see, Cannistra v. County of Putnam, 139 A.D.2d 479, supra, at 481, 526 N.Y.S.2d 841).

The instant motion to renew was made on or about December 23, 1994, more than 6 1/2 years after the action was dismissed as against Donald Gibbons.In support of the motion, the plaintiffs' present counsel asserted that in January 1993 his predecessor counsel subpoenaed police records which contained a 1984 letter from Aetna, the insurer of the car, and an insurance card, indicating that contrary to his disclaimers of having had nothing to do with the car, the defendantDonald Gibbons was in fact the named insured.The plaintiffs' present counsel discovered these items in September 1994 when they took over the case.

The Supreme Court granted the branch of the motion which was to renew, but adhered to the determination of this court on the prior appeal dismissing the action as against Donald Gibbons.While the Supreme Court correctly determined that it was the appropriate forum to entertain the motion for renewal (see, Harrell v. Koppers Co., 154 A.D.2d 340, 545 N.Y.S.2d 818), we find that the Supreme Court improvidently exercised its discretion in granting the application.

The general rule is that a motion to...