Ryder v. Cue Car Rental, Inc.

• Decision Date: 15 May 1969
• Parties: Harry RYDER, Plaintiff, v. CUE CAR RENTAL, INC., a/k/a National Car Rental of Syracuse, Defendant-Respondent, and Thomas C. Liberatore, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 17

302 N.Y.S.2d 17

32 A.D.2d 143

Harry RYDER, Plaintiff, v. CUE CAR RENTAL, INC., a/k/a National Car Rental of Syracuse Defendant-Respondent, and Thomas C. Liberatore Defendant-Appellant.

Supreme Court, Appellate Division, Fourth Department.

May 15, 1969.

Bond, Schoeneck & King, Syracuse, for appellant (Robert E. Moses, Syracuse, of counsel).

Alan J. Goldberg, Syracuse, for respondent.

Before DEL VECCHIO, J.P., and WITMER, GABRIELLI, MOULE and HENRY, JJ.

OPINION

DEL VECCHIO, Justice Presiding.

In this action to recover damages for personal injuries the jury returned a verdict in favor of plaintiff against both the owner and the operator of an automobile. Plaintiff was an insured person; defendant Liberatore, the driver, carried no insurance and MVAIC appeared on his behalf. Implicit in the verdict was a finding that the driver was operating the car with the permission and consent of its owner, co-defendant Cue Car Rental Inc. (Cue Car). Upon motion by Cue Car, the court set aside the verdict as against that defendant upon the ground it was contrary to the weight of the evidence and dismissed the complaint. Liberatore and MVAIC, as its interest appears, appeal from the order and judgment entered thereon. Plaintiff did not appeal. Cue Car moved to dismiss the appeal upon the ground that defendants are joint tortfeasors with a right of contribution, relying on cases which hold that one defendant may not appeal from a dismissal of the complaint against a co-defendant as not being an aggrieved party within the meaning of CPLR 5511. (Ward v. Iroquois Gas Corp., 258 N.Y. 124, 179 N.E. 317; Schultz v. Alfred, 11 A.D.2d 266, 203 N.Y.S.2d 201; Fornagiel v. Wacholder, 247 App.Div. 305, 285 N.Y.S. 1010.) We denied the motion with leave to renew upon argument of the appeal.

Contrary to Cue Car's claim, we do not have an active joint tortfeasor situation involving a right of contribution. Rather, this is an indemnification situation in which the right existing between the co-defendants is one by which the absentee owner of the vehicle (Cue Car) may recover from the negligent driver (Liberatore) the entire amount of any judgment paid by Cue Car to the injured plaintiff. (Naso v. Lafata, 4 N.Y.2d 585, 590, 176 N.Y.S.2d 622, 626, 152 N.E.2d 59, 61.) In this circumstance, there would be even less reason to consider the driver (with no right of contribution from the co-defendant owner) an aggrieved party under CPLR 5511 who might appeal a dismissal against his co-defendant than there would be to consider an active joint tort-feasor co-defendant an aggrieved party with a right to appeal.

However, this appeal is taken not only by the driver, Liberatore, but also by MVAIC, as its interest may appear. While never actually named a party to the action, MVAIC served an answer on behalf of both the driver and itself and the same law firm which served the pleading appeared at and participated fully in the trial. Attorneys for both defendants have executed a stipulation that there is no policy of insurance which would insure the driver, Liberatore, other than the policy issued to the owner. Thus, if Liberatore was not driving with the owner's permission at the time of the accident so as to be protected by the owner's insurance, he was an uninsured motorist and MVAIC would become responsible for a judgment against him to the extent of its liability. The purpose of the MVAIC endorsement on an insurance policy is to provide indemnification to an insured who is legally entitled to recover damages from the owner or operator of an uninsured automobile. (McCarthy v. Motor Vehicle Acc. Ind. Corp., 16 A.D.2d 35, 224 N.Y.S.2d 909, affd. 12 N.Y.2d 922, 238 N.Y.S.2d 101, 188 N.E.2d 405.) For this reason, the attorney who appeared on behalf of Liberatore was largely protecting MVAIC's interest at the trial. One of the principal issues litigated was the issue of permissive use; this was the critical issue which determined MVAIC's responsibility or lack thereof, for, if permissive use were established, the driver would not be uninsured and MVAIC would be relieved of liability. It was this very issue on which the Trial Judge set aside the jury's determination and substituted his own conclusion.

In these circumstances it would be entirely unrealistic to say that MVAIC is not 'aggrieved' by the judgment setting aside the verdict against Cue Car. The fact that it was not a nominal party in the action should not prevent its qualifying under CPLR 5511 to prosecute this appeal. 'The statutory provision (authorizing appeal by an aggrieved party) does not preclude an appeal by persons aggrieved who, though not strictly parties, are so connected with the litigation that they may be termed quasi parties.' (10 Carmody Wait 2d, New York Practice, § 70:69.) Instances in which persons not originally made parties have been permitted to prosecute appeals because aggrieved by the determination sought to be reviewed may be found in Attorney-General v. North America Life Insurance Company, 77 N.Y. 297, and in Soto v. Lenscraft Optical Corp., 7 N.Y.2d 747, 193 N.Y.S.2d 655, 162 N.E.2d 740. For all practical purposes, MVAIC is and has been since the submission of an answer a real party in this action. It would be an extremely technical and harsh result now to dismiss the present appeal and thereby to confirm the imposition of liability upon MVAIC-- which is under a statutorily based obligation to respond for Liberatore's negligence--by reason of an alleged erroneous determination by the Trial Judge.

There is a further reason why the present appeal is proper. Insurance Law § 609(b) specifically authorizes MVAIC to enter an appearance 'on its own behalf and on behalf of the defendant', file a defense, appear at the trial, conduct the defense, and 'take recourse to any appropriate method of review on behalf of, and in the name of, the corporation, and the defendant'. In view of this express provision conferring upon MVAIC the right to appeal--which is obviously directed to actions in which it does not have standing to...