Nolechek v. Gesuale

• Decision Date: 25 July 1977
• Parties: Walter L. NOLECHEK, Individually and as administrator, etc., Plaintiff, v. Thomas GESUALE et al., Defendants-Respondents, et al., Defendants. Walter L. NOLECHEK, Third-Party Plaintiff-Respondent, v. Paul NEIMAN et al., Third-Party Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 881

396 N.Y.S.2d 881

58 A.D.2d 885

Walter L. NOLECHEK, Individually and as administrator, etc., Plaintiff, v. Thomas GESUALE et al., Defendants-Respondents, et al., Defendants.

Walter L. NOLECHEK, Third-Party Plaintiff-Respondent, v. Paul NEIMAN et al., Third-Party Defendants-Appellants.

Supreme Court, Appellate Division, Second Department.

July 25, 1977.

Montfort, Healy, McGuire & Salley, Mineola (E. Richard Rimmels, Jr., Mineola, of counsel), for third-party defendants-appellants.

Benjamin Purvin, Lake Success (Charles F. Brady, Baldwin, of counsel), for third-party plaintiff-respondent.

Reid & Alio, Melville (Joseph D. Ahearn, New York City, of counsel), for defendants-respondents.

Before LATHAM, J. P., and RABIN, TITONE and O'CONNOR, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for wrongful death, etc., the third-party defendants appeal from an order of the Supreme Court, Suffolk County, dated September 28, 1976, which denied their motion to dismiss the third-party complaint for failure to state a cause of action.

Order reversed, on the law, with $50 costs and disbursements payable by third-party plaintiff to appellants, motion granted, and third-party complaint dismissed.

On October 29, 1957 the deceased's right eye was enucleated and he was provided with a glass eye. As a result of the loss of his right eye, the deceased's vision at long distance was uncorrectable. In January, 1971, the deceased's father, plaintiff and third-party plaintiff Walter L. Nolechek, purchased a motorcycle for the deceased. The deceased never possessed or applied for a driver's license of any type.

On September 30, 1973, the deceased and others were riding their motorcycles on Lawrence Road when he came into contact with a steel cable suspended across the road and was killed. At the time of his death the deceased was not riding the motorcycle purchased for him by his father, but was riding the motorcycle owned by the third-party defendants. The deceased and third-party defendant Paul Neiman had apparently exchanged motorcycles prior to the accident.

After plaintiff commenced the wrongful death action, the defendants Thomas Gesuale and Star Sand and Gravel Company counterclaimed against the deceased's father, seeking contribution from him of an equitable share of any judgment which might be had against them. Those defendants alleged that any damages sustained by the estate of the deceased were in part due to Walter Nolechek's providing a motorcycle to the deceased infant, knowing that he was not competent or qualified to operate the motorcycle and had the propensity to operate it in a manner dangerous to himself and to others. The plaintiff, in a third-party complaint alleged against the third-party defendants the same acts of negligence in substance as were alleged against him in the counterclaim and seeks contribution for any judgment against him on the counterclaim.

The essence of the counterclaim...