State v. Boutin

• Decision Date: 21 November 1990
• Citation: 563 N.Y.S.2d 276,167 A.D.2d 697
• Parties: STATE of New York, Appellant, v. Daniel BOUTIN, et al., Respondents. (And Two Other Related Actions.)
• Court: New York Supreme Court — Appellate Division

Page 276

563 N.Y.S.2d 276

167 A.D.2d 697

STATE of New York, Appellant, v. Daniel BOUTIN, et al., Respondents.

(And Two Other Related Actions.)

Supreme Court, Appellate Division,

Third Department.

Nov. 21, 1990.

Robert Abrams, Atty. Gen. (Dennis Hurley, of counsel), Albany, for appellant.

Miller, Mannix & Pratt (John C. Mannix, of counsel), Glens Falls, for respondents.

W. Donald Carola (Gary A. Lefkowitz of William A. Sekellick, Albany, of counsel), Mechanicville, for Yvan Lemieux and another, plaintiffs in action No. 3.

Before KANE, J.P., and WEISS, MIKOLL, YESAWICH and HARVEY, JJ.

KANE, Justice Presiding.

Appeal from an order of the Supreme Court (Ford, J.), entered July 22, 1988 in Saratoga County, which denied plaintiff's motion for summary judgment.

This action is one of three civil actions joined for trial which stem from the tragic events of November 26, 1985 when defendant Daniel Boutin drove a tractor-trailer owned by, among others, defendant J.C. Transport, Inc. into the rear of a State Police vehicle parked behind a disabled truck located partially in the far right southbound lane of Interstate Route 87 in Saratoga County. The police vehicle was crushed between the disabled truck and the tractor-trailer, killing the occupants, Trooper Thomas Hudson and Yvan Lemieux, the driver of the disabled truck. The action at issue herein was commenced by plaintiff to recover for damages sustained by the police vehicle as a result of Boutin's negligence. Defendants' answer denied any negligence on Boutin's part and asserted the affirmative defense of negligence on the part of Hudson which caused the damage. Plaintiff thereafter moved for summary judgment which Supreme Court subsequently denied, finding issues of fact as to the negligence of Hudson. This appeal ensued.

We affirm. There is presented the question of whether Hudson's actions were reasonable under all the circumstances, since there is evidence that the police vehicle was stopped partially in the highway (see, Andre v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131, 320 N.E.2d 853). Thus, plaintiff could not escape liability under the theory of impermissible imputation of negligence to an absentee owner, as argued by plaintiff, but in fact, is liable for any culpable conduct of its employee in the course of his employment (see, Court of Claims Act § 8; State of New York v. Popricki, 89 A.D.2d 391, 393-394, 456 N.Y.S.2d 850). Accordingly, summary judgment was properly denied.

Order...