Maurillo v. Park Slope U-Haul

• Decision Date: 27 December 1993
• Docket Number: U-HAUL
• Citation: 606 N.Y.S.2d 243,194 A.D.2d 142
• Parties: Michael MAURILLO, etc., et al., Respondents, v. PARK SLOPE, et al., Defendants-Appellants, Amerco Lease Company, etc., et al., Defendants and Third-Party Plaintiffs-Appellants; Overhead Door Corporation, etc., et al., Third-Party Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 243

606 N.Y.S.2d 243

194 A.D.2d 142

Michael MAURILLO, etc., et al., Respondents, v. PARK SLOPE U-HAUL, et al., Defendants-Appellants Amerco Lease Company, etc., et al., Defendants and Third-Party Plaintiffs-Appellants Overhead Door Corporation, etc., et al., Third-Party Defendants-Appellants.

Supreme Court, Appellate Division Second Department.

Dec. 27, 1993.

Skadden, Arps, Slate, Meagher & Flom, New York City (Jeffrey S. Lichtman and Steven F. Napolitano, of counsel), for appellants Park Slope U-Haul, U-Haul Lease Co., U-Haul Co. of Metro New York, Inc., and U-Haul Intern., Inc.

Newman, O'Malley & Epstein, P.C., New York City (Lawrence Epstein, of counsel), for appellant Alex Maurillo, Jr.

O'Connor, McGuinness, Conte, Doyle, Oleson & Collins, White Plains (Kevin M. Loftus, of counsel), for appellants Overhead Door Corp., Todco Products Group, and Todco Door Products.

Gair, Gair, Conason Steigman & Mackauf, New York City (Herman Schmertz, of counsel), for respondents.

Before LAWRENCE, J.P., and EIBER, O'BRIEN and SANTUCCI, JJ.

SANTUCCI, Justice.

On this appeal we are asked to consider whether a cause of action for indemnification arising from a one-vehicle accident may be based upon an intrafamilial concept of principal and agency. On the facts of this case, we conclude that such a cause of action may be asserted.

On July 23, 1987, the plaintiff Alex Maurillo, Sr., asked his three sons, the coplaintiff Michael Maurillo, the defendant Alex Maurillo, Jr., and Christopher Maurillo, to remove certain furniture from the Maurillo family home in Brooklyn and transport it to the family's summer home on Shelter Island. Alex Maurillo, Jr., testified that his father specifically indicated that he should rent a U-Haul vehicle for this purpose, his father provided a credit card in his name to pay for the vehicle's rental, and his father "pointed out several things" which were to be transported.

Pursuant to his father's request and instructions, Alex Maurillo, Jr., rented a U-Haul vehicle from the defendant Park Slope U-Haul, and with the help of his brothers, loaded the furniture into the van. The trip to Shelter Island was uneventful, and after delivering the furniture, the sons began the return journey to Brooklyn later that same day. At the time of the accident, Alex Maurillo, Jr., was driving the vehicle, Christopher Maurillo was seated in the front passenger seat and Michael, the injured plaintiff, was a passenger in the cargo area of the van. Also in the van at that time were three unrelated individuals--friends of the Maurillo brothers--whom the brothers had agreed to drop off in Sag Harbor at a nightclub known as Bay Street. During the operation of the vehicle, Michael repeatedly stood up to close the cargo door, which opened and closed during the trip. At approximately 11:10 P.M., as the van was proceeding through the parking lot of the Bay Street nightclub, it came to a sudden and abrupt stop. When Alex stopped the vehicle, Michael was standing up in the cargo area attempting to close the rear cargo door. As a result of this sudden stop, Michael was propelled to the floor of the van, causing him to sustain severe injury to his cervical spine that rendered him a paraplegic.

In December 1987 the plaintiffs Michael Maurillo and his father Alex Maurillo, Sr., commenced the instant action against, inter alia, Park Slope U-Haul and Alex Maurillo, Jr., to recover for the personal injuries suffered as a result of the accident. Alex Maurillo, Sr., seeks to recover damages both individually and in a representative capacity as a parent and natural guardian of Michael. In March 1990 Alex Maurillo, Jr., filed an amended verified answer which contained a counterclaim against his father, Alex Maurillo, Sr. In November 1990 the defendants-appellants Park Slope U-Haul, Amerco Lease Company, U-Haul Co. of Metro New York, Inc. and U-Haul International, Inc., filed a third amended answer, which included a counterclaim against Alex Maurillo, Sr. Thereafter in March 1991 the third-party defendants-appellants Overhead Door Corporation, Todco Products Group and Todco Door Products, filed an answer to the third-party complaint which also alleged a counterclaim against Alex Maurillo, Sr.

The appellants' counterclaims against Alex Maurillo, Sr., seek indemnification and/or contribution on the ground that Alex Maurillo, Sr., engaged his son, Alex Maurillo, Jr., to serve as his agent in driving back and forth to Shelter Island to transport the family's furniture. The counterclaims further allege that Alex Maurillo, Sr., as principal, is liable for the negligent acts of his son as agent within the scope of that agency relationship.

In May 1991 the plaintiffs moved to dismiss the appellants' counterclaims against the plaintiff Alex Maurillo, Sr., essentially for failure to state a cause of action. The plaintiffs asserted that the counterclaims "are patently improper as a matter of law, and should be dismissed inasmuch as there is no doctrine of imputed negligence in the State of New York". In opposition, the appellants asserted that their counterclaims were not based upon the abolished theory of imputed contributory negligence, but rather upon traditional principal-agency law, and that triable issues of fact existed regarding an agency relationship between Alex Maurillo, Sr., and Alex Maurillo, Jr.

In the order appealed from the Supreme Court, Kings County, granted the plaintiffs' motion. This appeal ensued.

Upon a motion to dismiss, the sole criterion is whether the subject pleading states a cause of action, and if, from the four corners of the complaint, factual allegations are discerned which, taken together, manifest any cause of action cognizable at law, then the motion will fail (see, Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17; see also, U.B.A., Inc. v. New York City Taxi & Limousine Comm., 161 A.D.2d 202, 554 N.Y.S.2d 588; Fleming v. Allstate Ins. Co., 106 A.D.2d 426, 482 N.Y.S.2d 519, aff'd, 66 N.Y.2d 838, 498 N.Y.S.2d 365, 489 N.E.2d 252, cert. denied, 475 U.S. 1096, 106 S.Ct. 1493, 89 L.Ed.2d 894). Furthermore, upon a motion to dismiss for failure to state a cause of action, a pleading must be given the benefit of every possible favorable inference to be drawn, and every fact alleged must be assumed to be true (see, Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 389 N.Y.S.2d 314, 357 N.E.2d 970; Matter of Carroll v. Seacroft Plaza, 141 A.D.2d 724, 529 N.Y.S.2d 588).

Contrary to the plaintiffs' arguments, the issue on this appeal is not whether the counterclaims seek indemnification based upon the imputation of a driver's negligence to an owner. Rather, the issues are whether an agency relationship existed between Alex Maurillo, Sr., and his son at the time of the accident, and whether under that relationship, the principal can be held liable for the negligent acts of his agent (see, State of New York v. Boutin, 167 A.D.2d 697, 563 N.Y.S.2d 276; State of New York v. Popricki, 89 A.D.2d 391, 456 N.Y.S.2d 850; cf., Kalechman v. Drew Auto Rental, 33 N.Y.2d 397, 353 N.Y.S.2d 414, 308 N.E.2d 886). Under the facts of this case, we find that the appellants' counterclaims, with the exception of the one asserted by Alex Maurillo, Jr., state a cause of action for indemnification against the plaintiff, Alex Maurillo, Sr., based upon the liability of a principal for the acts of his agent.

Agency is a legal relationship between a principal and an agent. It is a fiduciary relationship which results from the manifestation of consent of one person to allow another to act on his or her behalf and subject to his or her control, and consent by the other so to act (see, Restatement [Second] of Agency § 1; see also, L. Smirlock Realty Corp. v. Title Guarantee Company, 70 A.D.2d 455, 421 N.Y.S.2d 232, rev'd on other grounds, 52 N.Y.2d 179, 437 N.Y.S.2d 57, 418 N.E.2d 650). The agent is a party who acts on behalf of the principal with the latter's express, implied, or apparent authority.

Under most circumstances, intrafamilial activity will not give rise to an agency...