Meade v. Roberts

• Decision Date: 08 August 1972
• Citation: 335 N.Y.S.2d 349,71 Misc.2d 120
• Parties: Eunice R. MEADE, Individually and as Mother and Natural Guardian of Russell MEADE, an Infant, Plaintiff, v. John E. ROBERTS, Defendant.
• Court: New York Supreme Court

Page 349

335 N.Y.S.2d 349

71 Misc.2d 120

Eunice R. MEADE, Individually and as Mother and Natural Guardian of Russell MEADE, an Infant, Plaintiff, v. John E. ROBERTS, Defendant.

Supreme Court, Broome County.

Aug. 8, 1972.

Camille M. Roach, Endicott, for Russell Meade, infant plaintiff.

Night, Keller & O'Connor, Binghamton, Kevin F. McDonough, Binghamton, of counsel, for plaintiff, Eunice R. Meade.

Hinman, Howard & Kattell, Binghamton, John M. Keeler, Binghamton, of counsel, for defendant.

PAUL J. YESAWICH, Jr., Justice.

DECISION

Defendant has moved for leave to serve an amended answer so as to assert a cross-claim against the plaintiff Eunice R. Meade for the apportionment of any recovery which may be obtained against defendant by plaintiff's infant son, Russell Meade. Meade.

This action, which presently is No. 98 on the Trial Term calendar of the Broome County Supreme Court, arises out of a two-car collision which occurred on August 17, 1964 when vehicles owned and operated by the plaintiff Eunice R. Meade and defendant John E. Roberts collided at an intersection. As a result of that collision, plaintiff Eunice R. Meade as well as her infant son, who was a passenger in her vehicle, where allegedly injured. Thereafter, Eunice R. Meade commenced an action, as parent, to recover damages for the infant's personal injuries, and on her derivative claim. By the other two causes of action in the complaint she seeks to recover for her own personal injuries and for property damage to her vehicle.

This motion is prompted by reason of the new concept of shared responsibility evolved in Dole v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288, and although designated as a cross-claim this application will be considered as seeking leave to amend to assert a counter-claim, CPLR 3019(a); DeLucia v. Bundock, N.Y.L.J., July 19, 1972, p. 13, col. 4; Yarish v. Dowling, 70 Misc.2d 467, 333 N.Y.S.2d 508, 1972; Sorrentino v. United States of America and Harry Proctor, 344 F.Supp. 1308, 1972.

The accident having occurred nearly 8 years ago counsel for the liability insurance carrier representing Eunice R. Meade urge that it would be unduly prejudicial to permit defendant to amend its answer at this time. The issue of whether, under the circumstances, the statute of limitations would constitute an affirmative defense is not presented here, see Jenkins v. L. F. Electrical Installations Corp., N.Y.L.J., July 6, 1972, p. 2, col. 4 and Sanchez v. Hertz Rental Corp., 70 Misc.2d 449, 333 N.Y.S.2d 699, 1972.

It is claimed that when this accident occurred the carrier had made only a preliminary investigation of the occurrence because it had no obligation in connection with Eunice Meade's bodily injury claim and being prior to Gelbman v. Gelbman, 23 N.Y.2d 297 N.Y.S.2d 529, 245 N.E.2d 192, no obligation to her unemancipated infant son. As a result, the carrier has no photographs of the accident, or of the vehicles involved, nor does it have signed statements or interviews from the drivers or from any of the five passengers in the two vehicles. In addition it has no physical examination of the plaintiff, Russell Meade.

The prejudice occasioned by the absence of these items, can be lessened, by requiring that defendant, as a condition to the granting of this application, make copies of its photographs of the scene and the vehicles, as well as copies of reports of its medical examination of the infant plaintiff, if any, available to the plaintiff's carrier. Further Eunice R. Meade upon becoming a party defendant in the action would be entitled to obtain a physical examination...