Lipsman v. Warren

• Decision Date: 11 April 1960
• Citation: 10 A.D.2d 868,199 N.Y.S.2d 761
• Parties: Stephen LIPSMAN, an infant over the age of fourteen years, by Abe lipsman, his guardian ad litem, and Abe Lipsman, individually; Neil Golden, an infant over the age of fourteen years, by Irving Golden, his guardian ad litem, and Irving Golden; Stephen Fischgrund, an infant, by his guardian ad litem, Max Fischgrund, and Max Fischgrund; Leonard Zimmerman, an infant, by his guardian ad litem, Benjamin Zimmerman, and Benjamin Zimmerman; Malvin Ziegler, an infant, by his guardian ad litem, Irving Ziegler, and Irving Ziegler, Plaintiffs, v. Marlene R. WARREN, Barry Ribman, an infant, by his guardian ad litem, Blanche Monisoff, Defendants-Appellants, and Ace Motors Flatbush Corp., Defendant-Respondent. Marlene R. WARREN and Barry Ribman, an infant, by his guardian ad litem, Blanche Monisoff, Third-Party Plaintiffs-Appellants, v. ACE MOTORS FLATBUSH CORP., Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 761

199 N.Y.S.2d 761

10 A.D.2d 868

Stephen LIPSMAN, an infant over the age of fourteen years,

by Abe lipsman, his guardian ad litem, and Abe Lipsman,

individually; Neil Golden, an infant over the age of

fourteen years, by Irving Golden, his guardian ad litem, and

Irving Golden; Stephen Fischgrund, an infant, by his

guardian ad litem, Max Fischgrund, and Max Fischgrund;

Leonard Zimmerman, an infant, by his guardian ad litem, Benjamin Zimmerman, and Benjamin Zimmerman; Malvin Ziegler, an infant, by his guardian ad litem, Irving Ziegler, and Irving Ziegler, Plaintiffs, v. Marlene R. WARREN, Barry Ribman, an infant, by his guardian

ad litem, Blanche Monisoff, Defendants-Appellants,

and Ace Motors Flatbush Corp.,

Defendant-Respondent.

Marlene R. WARREN and Barry Ribman, an infant, by his guardian ad litem, Blanche Monisoff, Third-Party Plaintiffs-Appellants, v. ACE MOTORS FLATBUSH CORP., Third-Party Defendant-Respondent.

Supreme Court, Appellate Division, Second Department.

April 11, 1960.

Reargument and Appeal Denied May 16, 1960. See 202 N.Y.S.2d 252.

Emile Z. Berman and A. Harold Frost, New York City, for appellants, Emile Z. Berman, New York City, of counsel.

John J. O'Connor, New York City, for respondent, James M. Gilleran, New York City, of counsel.

Before NOLAN, P. J., and UGHETTA, KLEINFELD, CHRIST and BRENNAN, JJ.

MEMORANDUM BY THE COURT.

In a consolidated action by infants, passengers in a motor vehicle, and by their fathers, against the owner of the vehicle, its operator and the mechanic who is alleged to have negligently adjusted and repaired the brakes of the vehicle, the owner and operator, alleging that at most they were guilty of passive negligence only, jointly served a cross complaint and a third-party complaint on the mechanic for judgment over. The appeal is by the owner and operator from an order granting the respondent-mechanic's motion, pursuant to rule 106 of the Rules of Civil Practice, to dismiss the said cross complaint and third-party complaint, on the ground that they fail to state facts sufficient to constitute a cause of action.

Order modified by striking from the first and second ordering paragraphs the words 'granted in all respects' and by substituting therefor the following words: 'granted as to the defendant and third-party plaintiff Barry Ribman and denied as to the defendant and third-party plaintiff Marlene R. Warren.' As so modified, order unanimously affirmed, without costs.

A claim over may properly be pleaded if a 'right to indemnification may be predicated upon any version of the accident permitted by the pleadings' (Weisman v. Hyams, 5 A.D.2d 1000, 173 N.Y.S.2d 396, 398). Respondent, the mechanic, may be held liable only if the accident was caused by defective brakes. Even if appellant owner, who was not in the car, had no notice of the defect, nevertheless if the driver had...