Ingrassia v. Lividikos

• Citation: 864 N.Y.S.2d 449,54 A.D.3d 721,2008 NY Slip Op 6800
• Decision Date: 09 September 2008
• Docket Number: No. 2007-05466.,No. 2007-03212.,2007-03212.,2007-05466.
• Parties: LEONARD INGRASSIA, JR., Respondent, v. DEMOSTHENES LIVIDIKOS et al., Respondents, and ARBEN SELMANI, Defendant and Third-Party Plaintiff-Respondent. JENNIFER RODRIGUEZ, Third-Party Defendant-Appellant. (Action No. 1.) GEICO GENERAL INSURANCE COMPANY, Plaintiff, v. VASILIS LIVIDIKOS et al., Defendants. (Action No. 2.) LEONARD INGRASSIA, Jr., Respondent, v. JENNIFER RODRIGUEZ, Appellant. (Action No. 3.)
• Court: New York Supreme Court Appellate Division

54 A.D.3d 721

864 N.Y.S.2d 449

2008 NY Slip Op 6800

LEONARD INGRASSIA, JR., Respondent, v. DEMOSTHENES LIVIDIKOS et al., Respondents, and ARBEN SELMANI, Defendant and Third-Party Plaintiff-Respondent.

JENNIFER RODRIGUEZ, Third-Party Defendant-Appellant. (Action No. 1.)

GEICO GENERAL INSURANCE COMPANY, Plaintiff, v. VASILIS LIVIDIKOS et al., Defendants. (Action No. 2.) LEONARD INGRASSIA, Jr., Respondent, v. JENNIFER RODRIGUEZ, Appellant. (Action No. 3.)

No. 2007-03212.

No. 2007-05466.

Appellate Division of the Supreme Court of the State of New York, Second Department.

September 9, 2008.

In three related actions, inter alia, to recover damages for wrongful death and conscious pain and suffering, which were joined for trial, Jennifer Rodriguez appeals, as limited by her brief, from (1) so much of an order of the Supreme Court, Richmond County (McMahon, J.), dated February 28, 2007, as denied her motion for summary judgment dismissing all claims and cross claims insofar as asserted against her, and (2) so much of an order of the same court dated April 17, 2007, as, upon reargument, adhered to the original determination.

Ordered that the appeal from the order dated February 28, 2007, is dismissed, as the portion of the order appealed from was superseded by the order dated April 17, 2007, made upon reargument; and it is further,

Ordered that the order dated April 17, 2007, is reversed insofar as appealed from, on the law, upon reargument, so much of the order dated February 28, 2007, as denied the appellant's motion for summary judgment dismissing all claims and cross claims insofar as asserted against her is vacated, and the appellant's motion for summary judgment is granted; and it is further,

Ordered that the appellant is awarded one bill of costs payable by the plaintiff Leonard Ingrassia, Jr., and the defendants Demosthenes Lividikos and Vasilis Lividikos appearing separately and filing separate briefs.

On April 4, 2004, the decedent, Leonardo Ingrassia, III, was a passenger in a black Pontiac Bonneville driven by the defendant Rudy N. Cantarini. The appellant, Jennifer Rodriguez, was driving her mother's white Acura, with two girlfriends as passengers, including the defendant Katherine Lividikos. The Cantarini vehicle pulled up next to the appellant's vehicle, which was stopped at a red light. The boys in the Cantarini vehicle yelled at the girls in the appellant's vehicle and threw objects at her car.

Katherine Lividikos called her brother, the defendant Demosthenes Lividikos, and asked him to come and say something so the boys would stop bothering them. While Katherine Lividikos was on her cell phone with Demosthenes Lividikos, the appellant followed the Cantarini vehicle because "Kathy [Lividikos] said her brother was going to come and say something to them, to stop and whatever else."

Cantarini testified at his deposition that Demosthenes Lividikos's vehicle cut him off and forced him to stop. Demosthenes Lividikos and his passengers exited the vehicle. One of those passengers, Joe Milrud, swung a baseball bat at the side door of the Cantarini vehicle, shattering the rear window on the passenger side. The shattering glass struck the decedent's face. The Cantarini vehicle "took off" down Amboy Road at a high rate of speed. The Rodriguez and Lividikos vehicles proceeded to a diner to get ice for Demosthenes Lividikos's hand, which was red and bleeding. The diner was in the same direction as the Cantarini vehicle had traveled, but the appellant did not see the Cantarini vehicle as she drove toward the diner. The Cantarini vehicle was subsequently involved in an accident in which the decedent was killed.

As a result of this incident, Joe Milrud was convicted upon his plea of guilty of assault in the third degree, his copassenger Arben Selmani was convicted upon his plea of guilty of criminal possession of a weapon in the fourth degree, and Demosthenes Lividikos was convicted upon his plea of guilty of menacing in the third degree.

The decedent's father, the plaintiff Leonard Ingrassia, Jr. (hereinafter the plaintiff), commenced an action against the owner and driver of the Cantarini vehicle and the occupants and owners of the Lividikos vehicle. Selmani commenced a third-party action against the appellant, claiming that her negligence was a proximate cause of the ensuing events, which included his own criminal conduct. Over a year later, the plaintiff commenced a separate action against the appellant alleging, inter alia, that she "solicited the assistance" of Selmani and the other occupants of the Lividikos vehicle. The appellant moved for summary judgment dismissing all claims and cross claims insofar as asserted against her. The Supreme Court denied her motion, finding that the appellant should have foreseen the conduct of the occupants of the Lividikos vehicle. The Supreme Court further found that there was an issue of fact as to whether the appellant followed the Cantarini vehicle after the altercation, causing Cantarini to speed. Upon reargument, the Supreme Court adhered to its original determination.

The...