Hulme v. Patchogue Motors, Inc.

• Citation: 562 N.Y.S.2d 549,168 A.D.2d 425
• Parties: Mildred HULME, et al., Respondents-Appellants, v. PATCHOGUE MOTORS, INC., Appellant-Respondent, Ford Motor Company, Defendant.
• Decision Date: 03 December 1990
• Court: New York Supreme Court Appellate Division

Page 549

562 N.Y.S.2d 549

168 A.D.2d 425

Mildred HULME, et al., Respondents-Appellants, v. PATCHOGUE MOTORS, INC., Appellant-Respondent Ford Motor Company, Defendant.

Supreme Court, Appellate Division Second Department.

Dec. 3, 1990.

Thomas J. Walsh, New York City (Siff, Rosen & Parker, P.C. [Ignatius John Melito and Karen E. Heller], of counsel), for appellant-respondent.

Mulholland, Minion & Roe, Williston Park (Robert C. Minion, of counsel), for respondents-appellants.

Before BRACKEN, J.P., and SULLIVAN, O'BRIEN and RITTER, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for negligence, breach of warranty and strict products liability, (1) the defendant Patchogue Motors, Inc., appeals, as limited by its brief, (a) from so much of an order of the Supreme Court, Suffolk County (Mazzei, J.), entered December 13, 1988, as denied those branches of its motion which were for leave to conform the answer to the proof, to vacate a trial ruling awarding the plaintiffs judgment as a matter of law against it with respect to the second cause of action to recover damages for breach of warranty, and to dismiss that cause of action insofar as it is asserted against it, and (b) from so much of a judgment of the same court dated January 24, 1989, as was entered on the aforenoted provisions of the order entered December 13, 1988, and (2) the plaintiffs filed notices of cross appeal from the order and the judgment.

ORDERED that the cross appeals by the plaintiffs are dismissed as abandoned; and it is further,

ORDERED that the appeal by the defendant Patchogue Motors, Inc., from the order dated December 13, 1988, is dismissed; and it is further,

ORDERED that the judgment is reversed insofar as appealed from, on the law, the provisions of the order entered December 13, 1988, which are appealed from are vacated, those branches of the motion of Patchogue Motors, Inc., which were to conform its answer to the proof, to vacate the trial ruling awarding the plaintiffs judgment as a matter of law against it with respect to the second cause of action, and to dismiss that cause of action insofar as it is asserted against it, are granted, and the complaint is dismissed insofar as it is asserted against Patchogue Motors, Inc., and it is further,

ORDERED that the appellant-respondent is awarded one bill of costs, payable by the plaintiffs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501[a][1].

The plaintiffs sued the appellant-respondent Patchogue Motors, Inc. (hereinafter Patchogue) and the codefendant Ford Motor Company (hereinafter Ford) and requested damages against both those defendants on theories of negligence, breach of warranty, and strict products liability. In its answer, Patchogue failed to deny the allegations made in the ninth paragraph of the plaintiffs' complaint, which were to the effect that the codefendant Ford had negligently "designed, tested, manufactured, assembled and inspected" the subject vehicle. The codefendant Ford, in its answer, explicitly denied these allegations.

During the course of trial, the court orally granted judgment as a matter of law in favor of the plaintiffs and against Patchogue with respect to the plaintiffs' causes of action based on breach of warranty and strict products liability. This ruling was evidently based on the trial court's belief that the admission contained in Patchogue's answer, noted above, warranted the entry of judgment in favor of the plaintiffs and against Patchogue on these two causes of action as a matter of law (see, CPLR 4401).

The jury subsequently returned a verdict unanimously finding that the Ford vehicle in question was not defective, that the defendant Ford was not negligent in the manufacture of the vehicle, and that Patchogue was not negligent in the servicing or repair of the vehicle. The court thereafter denied the plaintiffs' motion to set aside this verdict (CPLR 4404[a]. The court also denied a cross motion by Patchogue for leave to conform the pleadings to the proof, and to vacate a trial ruling granting the plaintiffs' motion made during trial for judgment as a matter of law against Patchogue and in favor of the plaintiffs as to liability with respect to the breach of warranty and strict products liability causes of action.

A judgment was subsequently signed by the court. This document does not expressly provide for judgment in favor of the plaintiffs and against Patchogue as to liability,...