Moreno v. Galdorisi

• Decision Date: 24 October 1972
• Citation: 39 A.D.2d 450,336 N.Y.S.2d 646
• Parties: Lawrence J. MORENO et al., Respondents, v. Martin GALDORISI et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 646

336 N.Y.S.2d 646

39 A.D.2d 450

Lawrence J. MORENO et al., Respondents, v. Martin GALDORISI et al., Appellants.

Supreme Court, Appellate Division, Second Department.

Oct. 24, 1972.

Louis J. Castellano, Jr., Valley Stream, for appellants.

Henesy, Kerwick & Hodges, Baldwin (H. William Hodges, III, Baldwin, of counsel), for respondents.

Before MARTUSCELLO, Acting P.J., and SHAPIRO, GULOTTA, BRENNAN and BENJAMIN, JJ.

BRENNAN, Justice.

The defendants, Martin Galdorisi and Anthony Galdorisi, appeal from an order denying their motion for leave to serve a second amended answer alleging a second counterclaim against plaintiff Lawrence J. Moreno.

The action was instituted by Lawrence J. Moreno and Annette M. Moreno, his wife, to recover damages for personal injuries and loss of services. The action arose out of an accident which occurred on August 24, 1968 in which an automobile owned and operated by Lawrence J. Moreno was in an intersection collision with an automobile owned by defendant Anthony Galdorisi and operated by defendant Martin Galdorisi. Moreno's wife was a passenger in his automobile. The defendant operator testified at his examination before trial that the plaintiff operator did not stop for a full stop sign controlling traffic on the highway on which he was proceeding. For reasons affecting coverage, the plaintiff wife sought no recovery against her husband.

Following the decision of the Court of Appeals in Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (dec. March 22, 1972) the defendants made the motion under review to serve a second amended answer including a counterclaim against plaintiff Lawrence J. Moreno for judgment apportioning negligence and damages between him and the defendants in the event the defendants were held liable at the trial to plaintiff Annette M. Moreno. The Special Term denied the motion, stating, 'The Dole case does not apply to the facts in this action, and in addition, the holding therein does not apply retro-actively (sic)'.

In our view, the Special Term erred in reaching this conclusion.

In effect, Dole determined that a jury had the right to apportion damages between codefendants based upon their degree of culpability, without regard to whether the alleged negligence was active-passive or primary-secondary. This principle was subsequently reaffirmed in Kelly v. Long Island Lighting Co., 31 N.Y.2d 25, 334 N.Y.S.2d 851, 286 N.E.2d 241 (dec. June 8, 1972). The principle enunciated was in no respect confined to a particular factual situation. Since the date of the Dole decision the principle has been applied in a construction accident (Kelly v. Long Island Lighting Co., Supra); in vehicular accidents (Sanchez v. Hertz, Rental Corp., 70 Misc.2d 449 (Supreme Court, Kings County)); Yarish v. Dowling, 70 Misc.2d 467, 333 N.Y.S.2d 508 (Supreme Court, Queens County); Sorrentino v. United States, (U.S.Dist.Ct., Eastern Dist. of N.Y., 1972) 344 F.Supp. 1308; in a products liability case involving causes of action for negligence and breach of implied and express warranties (Walsh v. Ford Motor Co., 70 Misc.2d 1031, 335 N.Y.S.2d 110 (Supreme Court, Nassau County 1972)); in a premises liability case (Vaughan v. B & B Supermarket, 39 A.D.2d 825, 333 N.Y.S.2d 53); and in an attorney malpractice case (Langner v. Eschwege, 39 A.D.2d 653, 332 N.Y.S.2d 16). (See, also, the enlightening articles by Dean Joseph M. McLaughlin ('New York Trial Practice') appearing in the New York Law Journal on May 12, 1972, July 13, 1972 and Sept. 8, 1972, noting the extensive impact of the Dole decision and its far-reaching remifications.)

We feel that the Dole principle may lend itself fairly and equitably to the present case. We see merit to the defendants' claim, subject of course to proof, that the accident was caused in large part by the negligence of Lawrence J. Moreno, a plaintiff, in operating his motor vehicle through a stop sign. Since the negligence of the operator-husband may not be imputed to the wife- passenger, in order to recover, plaintiff Annette M. Moreno need only show some negligence on the part of the defendants, regardless of the fact that her husband's culpability in passing the stop sign may far exceed that of the defendants. In such circumstances, and in the event of recovery by plaintiff Annette M. Moreno against the defendants at the trial, we hold that the degree of culpability between the respective operators should be resolved at the trial and the damages apportioned accordingly.

We see no defect in the procedural method employed by the defendants in...