Jackson v. Melvey
| Decision Date | 07 March 1977 |
| Parties | Reuben JACKSON, Plaintiff, v. Sharon MELVEY and Felton Owens, Jr., Defendants Third-Party Plaintiffs-Respondents, v. GENERAL MOTORS CORPORATION, Third-Party Defendant-Appellant, George Buick Corporation, Third-Party Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Simpson Thacher & Bartlett, New York City (Roy L. Reardon, Anthony E. Satula, Jr., New York City, and Frazer F. Hilder, Detroit, Mich., of counsel), for appellant General Motors Corp.
O'Brien, Kelly & Rode, Mineola (John D. Kelly and Stephen P. Burke, Mineola, of counsel), for respondent George Buick Corp.
Rivkin, Leff & Sherman, Garden City (Harvey Weinig, Hempstead, of counsel), for respondents Melvey and Owens.
Before HOPKINS, Acting P.J., and MARTUSCELLO, DAMIANI and TITONE, JJ.
MEMORANDUM BY THE COURT.
In a negligence action to recover damages for personal injuries, third-party defendant General Motors Corporation (GM) appeals, as limited by its brief, from so much of an interlocutory judgment of the Supreme Court, Suffolk County, dated July 29, 1975, as (1) is in favor of third-party plaintiffs and against it, upon a jury verdict on the issue of liability only, for 35% Of plaintiff's damages and (2) is in favor of third-party defendant George Buick Corporation (Buick) and against third-party plaintiffs, upon the trial court's dismissal of the third-party complaint as against Buick at the close of all the evidence.
Interlocutory judgment reversed insofar as appealed from, on the law, without costs or disbursements, and new trial granted as between third-party plaintiffs and third-party defendant Buick, initially on the issue of liability for breach of warranty, and then, if that issue is decided in third-party plaintiffs' favor, on the issue of apportionment. In the event the issue of liability is decided in favor of Buick, the new interlocutory judgment to be entered thereon shall apportion liability in the same manner in which it is apportioned in the judgment under review; otherwise, a new apportionment shall be made. Third-party defendant GM shall have the right to participate in the new trial.
The accident giving rise to the alleged injuries occurred on June 30, 1968, when a vehicle driven by defendant Owens and owned by defendant Melvey, in which plaintiff Jackson was a passenger, veered to the right off the highway and onto a shoulder, struck two utility poles, and overturned. Jackson sued Owens and Melvey, claiming negligence. The latter, in turn, commenced a third-party action against GM, the manufacturer of the vehicle, and Buick, the dealer from whom Melvey had purchased the vehicle just three weeks prior to the accident, alleging that the accident occurred by reason of a defect in the steering mechanism, which caused the steering wheel to lock as Owens proceeded from the left to the right lane at a speed of about 65 miles per hour.
At the close of the third-party plaintiffs' case, the trial court dismissed those causes of action in the third-party complaint sounding in negligence for failure of proof. At the close of the entire case, the remaining cause of action, sounding in breach of warranty, was dismissed as to Buick as well. Thereafter, the jury returned a verdict in favor of plaintiff and against Melvey and Owens in the main action, and in favor of the latter and against GM in the third-party action. Liability was apportioned at 65% For Owens and Melvey and 35% For GM.
In our view, it was error to dismiss the third-party complaint as against Buick. The uncontradicted evidence established that, aside from the dealer's presale inspection, Buick inspected and/or repaired the vehicle just one week after purchase and two weeks prior to the accident, when Melvey...
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