Hendrickson v. Philbor Motors, Inc.

• Decision Date: 12 December 2012
• Citation: Hendrickson v. Philbor Motors, Inc., 2012 NY Slip Op 8489, 102 A.D.3d 251, 955 N.Y.S.2d 384 (N.Y. App. Div. 2012)
• Parties: Roseanne HENDRICKSON, et al., respondents, v. PHILBOR MOTORS, INC., doing business as Hempstead Ford, et al., defendants, Cooper Tire and Rubber Company, appellant. (Action No. 1) William Malone, plaintiff, v. Philbor Motors, Inc., doing business as Hempstead Ford, et al., defendants, Cooper Tire and Rubber Company, appellant, Rosanne Hendrickson, respondent. (Action No. 2).
• Court: New York Supreme Court — Appellate Division

102 A.D.3d 251

955 N.Y.S.2d 384

2012 N.Y. Slip Op. 08489

Roseanne HENDRICKSON, et al., respondents,

v.PHILBOR MOTORS, INC., doing business as Hempstead Ford, et al., defendants,Cooper Tire and Rubber Company, appellant. (Action No. 1)

William Malone, plaintiff,

v.Philbor Motors, Inc., doing business as Hempstead Ford, et al., defendants,Cooper Tire and Rubber Company, appellant,Rosanne Hendrickson, respondent. (Action No. 2).

Supreme Court, Appellate Division, Second Department, New York.

Dec. 12, 2012.

Devitt Spellman Barrett, LLP, Smithtown, N.Y. (Diane K. Farrell and David H. Arntsen of counsel), for appellant.

Kenneth J. Ready, Mineola, N.Y. (Anthony Orcel of counsel), for respondents.

MARK C. DILLON, J.P., PLUMMER E. LOTT, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.

DILLON, J.P.

We address, for the first time at an appellate level, whether a defendant's failure to oppose a codefendant's motion to dismiss a complaint and cross claims pursuant to CPLR 3211 precludes that party from later asserting that its liability is limited under CPLR article 16. For the reasons set forth below, we hold that, in this instance, it does not.

On August 4, 2005, the injured plaintiff in Action No. 1, Rosanne Hendrickson (hereinafter the injured plaintiff), was operating a 1996 Ford Explorer owned by her father, William Malone, on Interstate Route 80 in New Jersey, when the left rear tire of the vehicle sustained a tread separation, causing the vehicle to swerve across three lanes of travel, and ultimately roll over several times after leaving the highway. The vehicle was manufactured by the defendant Ford Motor Company (hereinafter Ford), and sold by the defendant Philbor Motors, Inc., doing business as Hempstead Ford (hereinafter Philbor). The subject tire had been manufactured by the defendant Cooper Tire and Rubber Company (hereinafter Cooper Tire). At the time of the accident, Malone was riding in the front passenger seat and his two grandchildren were riding in the back seat.

The injured plaintiff and her husband, Dennis Hendrickson, suing derivatively (hereinafter together the Hendricksons), commenced Action No. 1 against Philbor, Ford, and Cooper Tire. The causes of action asserted against Ford in Action No. 1 alleged defective design and defective manufacture of the vehicle, breach of warranty, failure to warn, strict products liability, and misrepresentation. Malone commenced a separate action (hereinafter Action No. 2) to recover damages against Philbor, Ford, Cooper Tire, and the injured plaintiff. In both actions, Cooper Tire asserted, as an affirmative defense, that its liability should be limited pursuant to CPLR article 16.

Philbor moved for summary judgment dismissing the complaints and all cross claims insofar as asserted against it in both actions. Although Ford answered the Hendricksons' complaint in Action No. 1, it later cross-moved pursuant to CPLR 3211(a)(7) to dismiss the complaints and all cross claims insofar as asserted against it in both actions for failure to state a cause of action. Both Philbor's motion and Ford's cross motion were unopposed by any party. While the motion and cross motion were pending, the Hendricksons separately cross-moved, in effect, pursuant to CPLR 3211(b) to dismiss any affirmative defense asserted by Cooper Tire that was based on CPLR article 16, and for summary judgment dismissing any such affirmative defense, in the event that the respective motion and cross motion of Philbor and Ford were granted, and the complaints were dismissed insofar as asserted against each or both of them. Cooper Tire opposed the Hendricksons' cross motion.

In an order dated January 5, 2011, the Supreme Court granted Philbor's unopposed motion for summary judgment. In the same order, the Supreme Court granted Ford's unopposed cross motion for “Rule 3211(a)(7) summary judgment.”

The Supreme Court also granted the Hendricksons' cross motion, thus barring Cooper Tire from seeking an apportionment of fault between Cooper Tire and either Philbor or Ford pursuant to CPLR article 16.

As limited by its brief, Cooper Tire appeals from so much of the order dated January 5, 2011, as granted that branch of the Hendricksons' cross motion which was, in effect, pursuant to CPLR 3211(b) to dismiss its affirmative defense seeking to apportion fault and/or damages pursuant to CPLR article 16 with respect to Ford, and for summary judgment dismissing that affirmative defense. For the reasons set forth below, we reverse the order insofar as appealed from.

Subject to certain exceptions not applicable here ( seeCPLR 1602), CPLR 1601(1) limits the liability that can be imposed upon a defendant that is jointly and severally liable for noneconomic loss in instances where that defendant's liability is found to be 50% or less of the total liability assigned to all persons liable ( see Rangolan v. County of Nassau, 96 N.Y.2d 42, 45, 725 N.Y.S.2d 611, 749 N.E.2d 178). Under such circumstances, the joint and several liability of such a defendant shall not exceed its proportionate share of the total liability for the noneconomic loss ( seeCPLR 1601[1]; Rangolan v. County of Nassau, 96 N.Y.2d at 46, 725 N.Y.S.2d 611, 749 N.E.2d 178;Cole v. Mandell Food Stores, 242 A.D.2d 552, 554, 662 N.Y.S.2d 89,affd.93 N.Y.2d 34, 687 N.Y.S.2d 598, 710 N.E.2d 244). The assessment of a defendant's equitable share, as a percentage of the total liability assigned to “all persons liable” (CPLR 1601[1] ), must take account of not only persons who are parties to the action, but also persons who are nonparties over whom jurisdiction could be obtained ( see Kharmah v. Metropolitan Chiropractic Ctr., 288 A.D.2d 94, 733 N.Y.S.2d 165;Brown v. State of New York, 268 A.D.2d 548, 549, 702 N.Y.S.2d 617;Siler v. 146 Montague Assoc., 228 A.D.2d 33, 39, 652 N.Y.S.2d 315;Zakshevsky v. City of New York, 149 Misc.2d 52, 54, 562 N.Y.S.2d 371;Siegel, N.Y. Prac. § 168C [5th ed.] ).

The Hendricksons argued before the Supreme Court, and now argue in response to Cooper Tire's appeal, that because Cooper Tire failed to contest the award of “summary judgment” to Ford, Ford received the functional equivalent of a trial that collaterally estops Cooper Tire from attributing a portion of liability to Ford in calculating the apportionment otherwise required by CPLR article 16 ( see Sellino v. Kirtane, 73 A.D.3d 728, 729, 901 N.Y.S.2d 299;Johnson v. Peloro, 62 A.D.3d 955, 956–957, 880 N.Y.S.2d 129;Drooker v. South Nassau Communities Hosp., 175 Misc.2d 181, 183, 669 N.Y.S.2d 169). Indeed, in Drooker, the Supreme Court specifically and correctly noted that since summary judgment is the “functional equivalent” of a trial, it follows that the limited liability benefits for defendants under CPLR article 16 are forfeited as to any codefendant who has been awarded summary judgment in its favor ( Drooker v. South Nassau Communities Hosp., 175 Misc.2d at 183, 669 N.Y.S.2d 169).

Cooper Tire distinguishes the facts of the instant matter from the foregoing principles by arguing that the complaints and cross claims were dismissed against Ford not via summary judgment under CPLR 3212 but, rather, pursuant to CPLR 3211(a)(7) for the Hendricksons' and Malone's failure to state a cause of action against Ford. Since CPLR 3211(a)(7) dismissals merely address the adequacy of the complaint, and do not reach the substantive merits of a plaintiff's cause of action or a defendant's defenses, Cooper Tire argues that there has been no “functional equivalent” of a trial that would bar Ford's inclusion in the calculus of CPLR 1601(1) that applies, as it does, to “all persons liable” ( cf. Maurischat v. County of Nassau, 81 A.D.3d 793, 794, 916 N.Y.S.2d 235;Amsterdam Sav. Bank v. Marine Midland Bank, 140 A.D.2d 781, 782, 528 N.Y.S.2d 184).

Here, the issue Ford presented to the Supreme Court in its notice of cross motion was that the Hendricksons' complaint “failed to state a cause of action upon which relief can be granted,” and that all cross claims should be dismissed as well. Thus, Ford sought relief pursuant to CPLR 3211(a)(7). While such motions are usually addressed to the sufficiency of a complaint, a third-party complaint, a cross claim, or a counterclaim, as set forth within the four corners of such a pleading, and the allegations of such a pleading, which must be afforded a liberal construction, are accepted as true ( see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511;Trotta v. Ollivier, 91 A.D.3d 8, 933 N.Y.S.2d 66;Winkler v. Battery Trading, Inc., 89 A.D.3d 1016, 934 N.Y.S.2d 199;Gioeli v. Vlachos, 89 A.D.3d 984, 933 N.Y.S.2d 352), Ford did not specifically argue in its cross motion that the Hendricksons' complaint or any cross claim was deficient per se. Rather, Ford, which had earlier answered the Hendricksons' complaint, supported its cross motion with a copy of the Hendricksons' interrogatory responses, in which the Hendricksons conceded that the Ford automobile, as designed and manufactured, was not defective in a manner proximately related to the Hendricksons' accident, and further conceded the absence of any breach of an expressed or implied warranty. They further conceded the absence of any failure to warn of any dangers inherent in the Ford automobile and that Ford did not fail to provide them with any instructions necessary to operate the automobile safely. A reading of Ford's cross motion in its totality suggests a lack of clarity as to whether its cross motion was truly intended as a CPLR 3211(a)(7) cross motion to dismiss the complaints and all cross claims insofar as asserted against it and, thus, addressed only to the four corners of the pleadings, or whether it was, in reality, a CPLR 3212 cross motion for summary judgment that relied upon substantive discovery responses, and was merely mischaracterized by Ford as a cross motion governed by CPLR 3211.

Compounding the confusion over whether Ford's cross motion was governed by CPLR 3211...