State v. Popricki

• Decision Date: 10 November 1982
• Citation: 456 N.Y.S.2d 850,89 A.D.2d 391
• Parties: STATE of New York, Appellant, v. Robert C. POPRICKI, Defendant and Third-Party Plaintiff-Respondent; James D. Piatt, Third-Party Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 850

456 N.Y.S.2d 850

89 A.D.2d 391

STATE of New York, Appellant, v.Robert C. POPRICKI, Defendant and Third-Party Plaintiff-RespondentJames D. Piatt, Third-Party Defendant-Appellant.

Supreme Court, Appellate Division Third Department.

Nov. 10, 1982.

Robert Abrams, Atty. Gen. (Michael S. Buskus, Albany, of counsel), for appellant and third-party defendant-appellant.

Hesson, Ford, Sherwood & Whalen, Albany (Donald P. Ford, Jr., Albany, of counsel), for defendant and third-partyplaintiff-respondent.

Before MAHONEY, P.J., and SWEENEY, MAIN, CASEY and WEISS, JJ.

WEISS, Justice.

On April 29, 1979, an automobile accident occurred involving a State-owned vehicle operated by James Piatt and an automobile owned and operated by Robert Popricki.It is conceded that Piatt was a State employee acting within the scope of his employment.In the main action, the State sued Popricki for property damage, contending that the accident resulted from his negligence.In his answer, Popricki interposed as an affirmative defense that the accident resulted from the negligence of the State or "some other person".Popricki then commenced a third-party action against Piatt, seeking judgment for contribution in the event the State was successful in the main action.After joinder of issue, third-party defendant Piatt moved pursuant to CPLR 3212 to dismiss the third-party complaint.

Special Term denied the motion for summary judgment, summarizing the third-party defendant's arguments for dismissal as follows:

(1) under section 388 of the Vehicle and Traffic Law the negligence of Piatt will be imputed to the plaintiff and any recovery by plaintiff will be reduced in proportion to Piatt's negligence and, thus, there is no need for a third-party action; (2) under the principle of respondeat superior, the negligence of Piatt will be imputed to the plaintiff and since the plaintiff's recovery will be reduced by any negligence attributable to Piatt, there is no basis for the third-party action; and (3) since the State must indemnify Piatt pursuant to section 17 of the Public Officers Law, the third-party complaint is a direct action against the State which must be pursued in the Court of Claims.

Special Term rejected each of these arguments, citing Ferrigan v. United Traction Co., 36 A.D.2d 667, 318 N.Y.S.2d 239, to discount argument (1), Smalley v. Associated Transport, 52 A.D.2d 979, 383 N.Y.S.2d 108, to discount argument (2), and Olmstead v. Britton, 48 A.D.2d 536, 370 N.Y.S.2d 269, as refuting argument (3).This appeal ensued.

The issue on this appeal is whether Special Term properly denied the third-party defendant's motion for summary judgment.Although we agree that Special Term correctly rejected the arguments advanced by Piatt for dismissal of the third-party complaint, we conclude, nonetheless, that the third-party complaint should have been dismissed for other reasons.We recognize that section 17 of the Public Officers Law merely indemnifies State employees for their tortious conduct and does not by its terms preclude a third-party action against a State employee in Supreme Court(Olmstead v. Britton, supra;De Vivo v. Grosjean, 48 A.D.2d 158, 160, 368 N.Y.S.2d 315).Moreover, the negligence of an operator of a vehicle will not be imputed to a passenger-owner plaintiff even though a master-servant relationship exists between the two (seeKalechman v. Drew Auto Rental, 33 N.Y.2d 397, 353 N.Y.S.2d 414, 308 N.E.2d 886;Smalley v. Associated Transport, supra;Bibergal v. McCormick, 101 Misc.2d 794, 421 N.Y.S.2d 978).Nor may the negligence of an operator be imputed to a vehicle-owner under section 388 of the Vehicle and Traffic Law in an action by the owner to recover for damages to the vehicle (seeContinental Auto Lease Corp. v. Campbell, 19 N.Y.2d 350, 280 N.Y.S.2d 123, 227 N.E.2d 28;Ferrigan v. United Traction Co., supra ).These cases repudiated the doctrine of imputed contributory negligence, particularly where the passenger-owner sued for damages, because the doctrine relies on the implausible fiction that the owner has control over the operator's conduct.In our view, no tenable justification exists to retain imputed contributory negligence in either the principal-agent or master-servant relationship (Bibergal v. McCormick, supra ).We agree that theoretical control fails to justify the imputation of liability to an innocent employer.

The instant case, however, is factually distinguishable and requires consideration of CPLR 1007, which, although not raised at Special Term, should be applied by this court.Here, the State is not a passenger-owner, nor is this an instance of imputed contributory negligence.The instant impleader action must be dismissed not because of any imputed negligence, but because the cause of action does not satisfy the requirements of CPLR 1007.That section permits third-party complaints against a person not a party"who is or may be liable" to the defendant(seeGeorge Cohen Agency v. Perlman Agency, 51 N.Y.2d 358, 365, 434 N.Y.S.2d 189, 414 N.E.2d 689).Our query must be whether there is any basis of recovery against Piatt as a third-party defendant.In this respect, the State's responsibility for the negligent acts of its employees becomes determinative.The general rule of agency is that a principal is liable for the tortious acts of his agent committed within the scope of employment (see3 N.Y.Jur.2d, Agency, § 254, p. 76).The Court of Claims Act not only waived the State's immunity from liability, but also made applicable the rule of respondeat superior to all employees of the State(Court of Claims Act, § 8;Becker v. New York, 2 N.Y.2d 226, 159 N.Y.S.2d 174, 140 N.E.2d 262;55 N.Y.Jur., State of New York, § 201, p. 734).The State is clearly liable for the negligent operation of State-owned vehicles (see55 N.Y.Jur., State of New York, § 201, p. 739).Under the doctrine of respondeat superior, the State will be liable for the negligence of an employee committed while the employee is acting within the scope of his employment (seeLundberg v. State of New York, 25 N.Y.2d 467, 470, ...