Ibach v. Grant Donaldson Service, Inc.

• Decision Date: 09 December 1971
• Citation: 38 A.D.2d 39,326 N.Y.S.2d 720
• Parties: David IBACH, Sr., Individually and as Parent of David Ibach, Jr., an Infant, Plaintiffs, v. GRANT DONALDSON SERVICE, INC. and Hal Casey Motors, Inc., Defendants. David IBACH, Sr., Individually and as Father and Natural Guardian of Daniel Ibach, an Infant, Plaintiff v. GRANT DONALDSON SERVICE, INC., et al., Defendants. Arthur SZYMINSKI, Individually and as Father and Natural Guardian of Thomas Szyminski, an Infant, Plaintiff GRANT DONALDSON GRANT DONALDSON SERVICE, INC., et al., Defendants. HAL CASEY MOTORS, INC., Third-Party Plaintiff-Respondent, v. RENAULT, INC., Third-Party Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 720

326 N.Y.S.2d 720

38 A.D.2d 39

David IBACH, Sr., Individually and as Parent of David Ibach, Jr., an Infant, Plaintiffs, v. GRANT DONALDSON SERVICE, INC. and Hal Casey Motors, Inc.,

Defendants.

David IBACH, Sr., Individually and as Father and Natural Guardian of Daniel Ibach, an Infant, Plaintiff v. GRANT DONALDSON SERVICE, INC., et al., Defendants.

Arthur SZYMINSKI, Individually and as Father and Natural

Guardian of Thomas Szyminski, an Infant, Plaintiff

GRANT DONALDSON

GRANT DONALDSON SERVICE, INC., et al., Defendants.

HAL CASEY MOTORS, INC., Third-Party Plaintiff-Respondent, v. RENAULT, INC., Third-Party Defendant-Appellant.

Supreme Court, Appellate Division, Fourth Department.

Dec. 9, 1971.

Smith, Murphy & Schoepperle, Buffalo, for third party defendant-appellant (Frank G. Godson, Buffalo, of counsel).

Palmer, Heffernan, Wicker & Beyer, Buffalo, for third party plaintiff-respondent (John J. Heffernan, Buffalo, of counsel).

Before DEL VECCHIO, J.P., and MARSH, WITMER, MOULE and HENRY, JJ.

WITMER, Justice.

Renault, Inc., third party defendant in each of three third party actions, appeals from a Special Term order entered in each action denying its motion to dismiss the second and third causes of action in the third party complaint.

It appears that on August 19, 1966 the infant plaintiff in action No. 1 was driving a 1961 Renault automobile, with the infant plaintiffs in actions Nos. 2 and 3 as passengers, when the vehicle left the road and overturned, injuring all of them. They and their fathers in 1969 brought three separate actions against Hal Casey Motors, Inc. (Casey) et al., alleging that on July 23, 1966 Casey sold the vehicle to David Ibach, Jr. (plaintiff in Action No. 1); that it was a secondhand 1961 Renault automobile which Casey and its agents had inspected as required by the Vehicle and Traffic Law and to which Casey had affixed a certificate of inspection; that the inspection was negligently made and the car was in a defective condition, causing plaintiff's injuries. Casey then brought a third party action against Renault, Inc. in each of said three actions, alleging that Renault had originally sold the vehicle when new and placed it upon the market; and then setting forth three causes of action further alleging, (1) that if the vehicle was defective when plaintiffs were injured, it was owing to the primary active negligence of Renault, (2) that if plaintiffs recover from Casey because of the alleged defective condition, said condition existed from the date Renault sold and placed the vehicle upon the market and that Renault 'will be strictly liable in tort' to reimburse Casey and, (3) that plaintiffs have alleged that when Casey sold the vehicle to plaintiff David Ibach, Jr., Casey impliedly warranted to plaintiff that it was fit for use on the highway; that plaintiff relied thereon; and that the vehicle was not fit for such use; and Casey alleges that if it is found liable to plaintiffs in warranty under the original complaints, Renault will be liable over to Casey for such amount, because Renault in placing the vehicle upon the market (see Goldberg v. Kollsman Instrument Co., 12 N.Y.2d 432, 437, 240 N.Y.S.2d 592, 595, 191 N.E.2d 81, 83) impliedly warranty to any 'contemplated user' that the vehicle was fit for use on the highway.

Renault then moved under CPLR 3211 to dismiss the second and third causes of action in the third party complaints on the ground that they are barred by the statute of limitations. It supported the motions by an affidavit that its records prior to 1963 have been destroyed, but that in practice its 1961 automobiles were sold within 6 months of their receipt by it in 1961, so that more than 6 years have elapsed since it originally sold this vehicle. Special Term denied the motions upon the ground that if Casey is held liable to plaintiffs, it will be entitled to be indemnified by Renault, and that such actions do not accrue until Casey's liability is determined and thus that the statute of limitations could not have run against these causes of action. The Court added that to avoid multiplicity of actions the third party actions are permitted to be maintained concurrently with plaintiffs' actions, although Casey's liability, if any, has not yet been determined.

It is from the orders entered on such decision that Renault appeals. It did not move at Special Term against the first cause of action in the third party complaints, namely, the one founded in negligence; and it acknowledges that the Court's reason for denying its motions against the second and third causes of action would be valid to sustain the first cause of action (see Matter of Valstrey Serv. Corp. v. Bd. of Elec., 2 N.Y.2d 413, 161 N.Y.S.2d 52, 141 N.E.2d 565; Carl Gutmann & Co., Inc. v. Dan River Mills, Incorporated, 30 A.D.2d 646, 291 N.Y.S.2d 78; Musco v. Conte, 22 A.D.2d 121, 254 N.Y.S.2d 589; cf. W. T. Grant Co. v. Uneeda Doll Co., 19 A.D.2d 361, 364, 243 N.Y.S.2d 428, 431 dissenting opinion), but it contends that the principle of indemnity does not extend to the second and third causes of action.

For reasons later stated herein, we cannot approve the ground of Special Term's decision, but we agree with the result. In its moving papers Renault does not show when the original sale of the automobile was made by it, and hence it does not clearly appear that more than 6 years elapsed between that sale and the dates in 1969 when the third party actions were begun. Where a trial may disclose facts which sustain the complaint, the drastic remedy of summary judgment of dismissal should not be granted upon motion (Johnson v. Johnson, 33 A.D.2d 640, 305 N.Y.S.2d 126). Against a motion by defendant which is treated as one for summary judgment the plaintiff should come forward with an affidavit of some facts demonstrating that there is merit to his case (Shapiro v. Health Ins. Plan, 7 N.Y.2d 56, 194 N.Y.S.2d 509, 163 N.E.2d 333); and this Casey has not done. Since, however, the information as to the date when Renault originally sold the automobile when new is not. within Casey's knowledge, and is more likely available in some manner to Renault, this motion should not be granted (Marine Midland Trust Co. of Northern New York v. Macaluso, et al., 30 A.D.2d 932, 293 N.Y.S.2d 801). Denial of the motion will not work a hardship upon Renault, because it must defend the negligence actions in any event; and hence the orders appealed from should be affirmed.

Although the above conclusion is sufficient to dispose of these appeals, the paramount and most interesting point presented herein is whether the second and third causes of action in the third party complaints will be barred if it develops upon the trial that Renault sold the automobile more than six years prior to the commencement in 1969 of these third party actions against it. Because this question appears to be imminent in this case we express our views on it for the benefit of the trial justice.

A most important case to be considered in discussing this subject is Mendel v. Pittsburgh Plate Glass Co., 25 N.Y.2d 340, 305 N.Y.S.2d 490, 253 N.E.2d 207. It is not a third party action, but its holding, dicta and rationale virtually foreclose any New York lower court from establishing a different basis for liability than there declared. That decision was not unexpected, for similar rulings preceded it (Schwartz v. Heyden Newport Chem. Corp., 12 N.Y.2d 212, 215, 237 N.Y.S.2d 714, 715, 188 N.E.2d 142, 143; Munn v. Security Controls, Inc., 23 A.D.2d 813, 258 N.Y.S.2d 475). In Mendel the Pittsburgh Plate Glass Company (manufacturer) had manufactured, sold and installed in 1958 plate glass doors in the Central Trust Company building in Rochester, New York. In 1965 plaintiff was injured while walking through those doors, allegedly because of a defect therein. She sued the bank and the manufacturer in negligence, strict tort liability and breach of warranty. The manufacturer moved to dismiss plaintiff's breach of warranty action and strict liability action against it on the ground that they were outlawed by the then six year statute of limitations. The motion was granted at Special Term, and the order entered thereon was affirmed by this Court and affirmed by a 4--3 vote in the Court of Appeals. The opinion of the Court of Appeals has been criticized in a series of Law Review articles published in Volume 45 of...