Hanna v. Ford Motor Co.

• Decision Date: 06 July 1998
• Citation: 675 N.Y.S.2d 125,252 A.D.2d 478
• Parties: , 1998 N.Y. Slip Op. 6690 William HANNA, et al., Plaintiffs-Respondents, v. FORD MOTOR COMPANY, Defendant Third-Party Plaintiff-Appellant, Lockwood Lumber Sales Corp., Defendant Second Third-Party Plaintiff-Appellant; Yonkers General Hospital, Third-Party Defendant and Second Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 125

675 N.Y.S.2d 125

252 A.D.2d 478, 1998 N.Y. Slip Op. 6690

William HANNA, et al., Plaintiffs-Respondents, v. FORD MOTOR COMPANY, Defendant Third-Party Plaintiff-Appellant Lockwood Lumber Sales Corp., Defendant Second Third-Party Plaintiff-Appellant Yonkers General Hospital, Third-Party Defendant and Second Third-Party Defendant-Respondent.

Supreme Court, Appellate Division,

Second Department.

July 6, 1998.

Herzfeld & Rubin, P.C., New York City (Herbert Rubin, David B. Hamm, and Noreen M. Giusti, of counsel), for defendant third-party plaintiff-appellant Ford Motor Company.

Kroll, Rubin & Fiorella, LLP, White Plains (Steven Jay Monn, of counsel), for defendant second third-party plaintiff-appellant Lockwood Lumber Sales Corp.

Weiner & Gall, Nanuet (Richard J. Weiner, of counsel), for plaintiffs-respondents.

Ecker, Loehr & Ecker, LLP, Yonkers (Gerald E. Loehr and Iris J. Iler, of counsel), for third-party defendant and second third-party defendant-respondent Yonkers General Hospital.

Before BRACKEN, J.P., and ROSENBLATT, RITTER and FLORIO, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, etc., Ford Motor Company appeals from so much of an order of the Supreme Court, Westchester County (Rosato, J.), entered December 17, 1997, as denied that branch of its motion which was for summary judgment dismissing all counterclaims and cross claims insofar as asserted against it for contribution, and Lockwood Lumber Sales Corp. separately appeals from so much of the same order as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, that branch of the motion by Ford Motor Company which was to dismiss all counterclaims and cross claims insofar as asserted against it for contribution is granted, the motion by Lockwood Lumber Sales Corp. for summary judgment dismissing the complaint and all cross claims insofar as asserted against it is granted, all counterclaims and cross claims insofar as asserted against Ford Motor Company for contribution are dismissed, and the complaint and all cross claims are dismissed insofar as asserted against Lockwood Lumber Sales Corp.

On December 26, 1990, the plaintiff William Hanna drove a van owned by his employer, the third-party defendant Yonkers General Hospital, and manufactured by Ford Motor Company (hereinafter Ford) to a lumber yard owned by Lockwood Lumber Sales Corp. (hereinafter Lockwood) to purchase materials. He left the van with the engine running because the battery had just been charged. Soon thereafter, the van started moving toward the security guard station and the sales office. In an attempt to stop the unmanned van, Hanna threw some pieces of lumber at the van's wheels. These acts caused the van to change direction and head for Hanna. Hanna tried to run away from the van, but he slipped and fell on some loose lumber allegedly lying on the ground, and was hit by the van. The parties' experts concurred that the van started to move because the gear selector mechanism was worn and improperly maintained and/or repaired, allowing the gear to slip from "Park" to "Reverse".

On June 6, 1996, the plaintiffs discontinued with prejudice their action against Ford. There is no evidence that consideration was received therefor, and the remaining parties, Lockwood and Yonkers General Hospital, did not sign the stipulation. The Supreme Court denied that branch of Ford's motion which was for summary judgment dismissing all counterclaims and cross claims insofar as asserted against it for contribution. We reverse.

Lockwood argues that the stipulation of discontinuance is invalid because it did not comply with CPLR 3217 which requires, inter alia, that a claim may be discontinued without an order by filing a stipulation "signed by the attorneys of...