Kaplan v. Dart Towing, Inc.
| Decision Date | 19 March 1990 |
| Citation | 159 A.D.2d 610,552 N.Y.S.2d 665 |
| Parties | David M. KAPLAN, Appellant, v. DART TOWING, INC., et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
David M. Kaplan, Flushing, appellant pro se.
James S. Rowen, New York City (Michael J. Nicita, of counsel), for respondents.
Before KUNZEMAN, J.P., and KOOPER, SULLIVAN and MILLER, JJ.
MEMORANDUM BY THE COURT.
In an action sounding in tort, the plaintiff appeals (1) from an order of the Supreme Court, Queens County (Joy, J.), dated November 3, 1988, which denied his motion for partial summary judgment and granted the defendants' cross motion for summary judgment dismissing the complaint, and (2) as limited by his brief, from so much of an order of the same court, dated January 26, 1989, as, upon reargument, adhered to the original determination and denied the plaintiff leave to serve an amended complaint.
ORDERED that the plaintiff is awarded one bill of costs.
On December 30, 1987, the plaintiff was driving his automobile on the Whitestone Bridge when he experienced engine trouble. He pulled the disabled vehicle to the side of the road and called the defendant Dart Towing, Inc. (hereinafter Dart) for assistance. The defendant Singleton arrived in a Dart tow car, hooked-up the plaintiff's vehicle, and permitted the plaintiff to accompany him in the tow car cab.
Singleton radioed his employer, the defendant Martucci, to find out the cost of towing the car to the plaintiff's destination, Flushing Meadows, Queens, and was told that the cost was $75. The plaintiff indicated that he could pay $65 immediately and the balance of $10 on arrival at his destination. Upon being informed of this, the defendant Martucci instructed Singleton to leave the plaintiff and his vehicle where they were. Singleton left the plaintiff and his vehicle on the shoulder of the Whitestone Expressway.
The plaintiff alleges that, due to the extreme weather conditions at the time, he suffered frostbite and severe emotional distress. He filed a claim with the New York City Police Department License Division, and, after an administrative hearing, the defendants were issued a warning.
The plaintiff subsequently instituted the present action, alleging causes of action sounding in prima facie tort, and intentional infliction of severe emotional distress, and demanding punitive damages. The defendants served an answer containing a general denial. The plaintiff then moved for partial summary judgment on the issue of liability, asserting that the determination of the New York City Police Department License Division collaterally estopped the defendants from denying liability. The defendants cross-moved for summary judgment dismissing the plaintiff's complaint.
By order dated November 3, 1988, the Supreme Court denied the plaintiff's motion for partial summary judgment, finding that the issues determined at the administrative hearing were not identical to those at bar and that the defendants had not had a full and fair opportunity to litigate the issues. The defendants' cross motion was granted, and the complaint dismissed. The plaintiff moved for reargument and for leave to serve an amended complaint. In the order appealed from, dated January 26, 1989, the court granted reargument, upon reargument, adhered to the original determination, and denied the plaintiff leave to serve an amended complaint.
We find that the plaintiff's cause of action sounding in prima facie tort was properly...
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