Padlo v. Spoor

• Decision Date: 15 July 1977
• Citation: 90 Misc.2d 1002,396 N.Y.S.2d 798
• Parties: Joan Gardner PADLO, Plaintiff, v. Margaret SPOOR, Thomas Spoor, and Stanley A. Laskowski, Defendants.
• Court: New York Supreme Court

Page 798

396 N.Y.S.2d 798

90 Misc.2d 1002

Joan Gardner PADLO, Plaintiff, v. Margaret SPOOR, Thomas Spoor, and Stanley A. Laskowski, Defendants.

Supreme Court, Erie County.

July 15, 1977.

Irwin N. Davis, P. C., Buffalo, for plaintiff.

Hurwitz, Seigel & Hurwitz, Buffalo (Sheldon Hurwitz, Buffalo, of counsel), for defendant Thomas Spoor.

Edward F. Ehrman, Buffalo, for defendant Stanley A. Laskowski.

DECISION

FRANK R. BAYGER, Justice.

This is an action for personal injuries allegedly suffered in a February 14, 1973 collision involving vehicles owned by the defendants Thomas Spoor and Stanley Laskowski. The plaintiff was a passenger in the Spoor automobile which was then being operated with the owners permission by Mrs. Margaret Spoor. The plaintiff and Mrs. Spoor were employees of the United States Army and were acting within the scope of their employment when the collision occurred. The action was therefore removed to the United States District Court pursuant to applicable federal law (cf. 28 U.S.C.A. §§ 2679 (d) and 1346(b)). The complaint was subsequently dismissed as against Mrs. Spoor by reason of her immunity from suit under the Federal Drivers Act (28 U.S.C.A. § 2679(b)-(e)) and the bar of the Federal Employees Compensation Act ("FECA", 5 U.S.C.A. §§ 8101 et seq.). The action was thereupon remanded to this court on the grounds that the remaining claims were without federal jurisdiction. The defendant, Thomas Spoor, has now moved for a dismissal of the complaint and the defendant Laskowski's cross claim on the grounds that his wife's immunity from civil liability for this accident also exempts him from any derivative liability under section 388 of the Vehicle and Traffic Law (L.1959, ch. 775).

The Federal Drivers Act (supra ) immunizes federal employees from civil liability for the negligent operation of any vehicle while in the course of their employment. A claimant's exclusive remedy as against the negligent federal employee is an action against the federal government and any suit brought against the employee individually is deemed to be an action against the United States. In this case, however, the claimant is also a federal employee and suit against the United States is barred by FECA. Thus, as between the plaintiff and the defendant, Margaret Spoor, the latter is immunized from liability for this accident and the plaintiff is restricted to a claim for compensation under FECA. It does not follow, however, that the plaintiff may not proceed against other persons legally responsible for her injuries. Unlike the law of New York, workmen's compensation is not the exclusive remedy of a federal employee injured in the course of his or her employment by the negligence of another employee (compare Workmen's Compensation Law, § 29, subd. 6; and 5 U.S.C.A. § 8116(c)). Compensation is the injured employee's exclusive remedy as against the United States, but not as against other parties who may be liable for the injuries sustained (Seligman v. Gerlach, 28 Misc.2d 632, 215 N.Y.S.2d 634, aff'd 15 A.D.2d 926, 226 N.Y.S.2d 678).

Section 388 of the Vehicle and Traffic Law (L.1959, chp. 775) imposes upon the owner of a vehicle, a statutory liability for the negligence of any person using or operating that vehicle in this state with the permission of the owner, express or implied. The statute creates a cause of action in favor of an injured party against the insured, financially responsible owner for the negligence of the operator (Ingle v. Mark, 58 Misc.2d 895, 296 N.Y.S.2d 664). The liability thus imposed upon the absent owner is purely statutory and is vicarious or derivative in nature. It is not founded upon any fault of the owner but solely upon the negligence of the operator. ". . . . (T)he owner's liability depends upon and springs from the operator's liability; . . . ." (Sikora v. Keillor, 17 A.D.2d 6, at 8, 230 N.Y.S.2d 571, at 574). In this case the allegedly negligent operator is immune from any civil liability and recovery against her is barred by the Federal Drivers Act (supra ). The question to be decided upon this motion is whether that immunity extends to the non negligent, absentee owner so as to exempt him from any derivative liability under section 388.

In support of his position, the moving defendant has cited the Sikora case, supra as well as Naso v. LaFata, 4 N.Y.2d 585, 176 N.Y.S.2d 622, 152 N.E.2d 59 and Rauch v. Jones, 4 N.Y.2d 592, 176 N.Y.S.2d 628, 152 N.E.2d 63. In the Naso and Rauch cases employees injured by the vehicular negligence of co-employees were denied recovery against the respective vehicle owners under the former section 59 (now section 388) of the Vehicle and Traffic Law. I do not believe those holdings are controlling in this case, however, as they were based upon the "exclusive remedy" provision of section 29, subdivision 6 of the Workmen's Compensation Law which represents a legislative prohibition of any suit founded upon the negligence of a co-employee. As stated by Chief Judge Conway, "It...