Storch v. Moritsky

• Decision Date: 20 December 1965
• Citation: 266 N.Y.S.2d 54,24 A.D.2d 1027
• Court: New York Supreme Court — Appellate Division
• Parties: Julius STORCH, Carl Kristein et al., Plaintiffs, v. Rose MORITSKY et al., Defendants. Rose MORITSKY, Third-Party Plaintiff-Appellant; A & B CAB CORP. and Delio Feliciano, Third-Party Defendants-Respondents.

Page 54

266 N.Y.S.2d 54

24 A.D.2d 1027

Julius STORCH, Carl Kristein et al., Plaintiffs, v. Rose MORITSKY et al., Defendants Rose MORITSKY, Third-Party Plaintiff-Appellant; A & B CAB CORP. and Delio Feliciano, Third-Party Defendants-Respondents.

Supreme Court, Appellate Division, Second Department.

Dec. 20, 1965.

Emanuel Morgenbesser, New York City, for appellant; Lewis I. Wolf, New York City, of counsel.

Cohen & Ruttenberg, New York City, for respondent; Neil Huttner, New York City, of counsel.

Before BELDOCK, P. J., and UGHETTA, CHRIST, HILL, and HOPKINS, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injury, the third-party plaintiff appeals from an order of the Supreme Court, Kings County, entered December 11, 1964, which granted the third-party defendants' motion to dismiss her third-party complaint for insufficiency.

Order affirmed, without costs.

On June 4, 1963, an automobile, owned by defendant Moritsky and driven by her co-defendant (Andrews), collided with a taxicab owned by third-party defendant A & B Cab Corp. and driven by third-party defendant Feliciano. Plaintiffs Storch and Kristein (passengers in the taxi) instituted an action to recover damages against Moritsky and Andrews only. Moritsky thereafter brought this third-party action against the taxi owner and its driver.

In our opinion, this third-party action for indemnification is not maintainable. The third-party plaintiff, although a passive tortfeasor as between herself and the driver of the car, is by statute liable for his negligence. As such, she is placed in pari delicto as a joint tortfeasor with the third-party defendants. No obligation to indemnify may be implied as between joint tortfeasors (Bush Term. Bldgs. Co. v. Luckenbach S.S. Co., 9 N.Y.2d 426, 214 N.Y.S.2d 428, 174 N.E.2d 516; Petzold v. Avis Rent-A-Car System, Inc., 9 N.Y.2d 989, 218 N.Y.S.2d 65, 176 N.E.2d 514).

BELDOCK, P. J., and UGHETTA, CHRIST and HILL, JJ., concur.

HOPKINS, J., concurs in the result.

HOPKINS, Justice (concurring in the result).

The weight of authority supports the view that one joint tortfeasor cannot obtain indemnity from his fellow tortfeasor in an automobile collision case (Note, 68 Yale L.J., 964, 983-984), and our state is in accord with the majority view (Petzold v. Avis Rent-A-Car System, 12 A.D.2d 118, 209 N.Y.S.2d 121, affd. 9 N.Y.2d 989, 218 N.Y.S.2d 65, 176 N.E.2d 514; Anderson v. Liberty Fast Freight Co., 285 App.Div. 44, 135 N.Y.S.2d 559). At least, this is the result where indemnity is sought by one driver (or owner) from another driver (or owner); our court has recognized an exception and has allowed indemnity by an owner of an automobile where a defect in the mechanism causing the accident was the result of the negligence of a repairman or manufacturer (Alfano v. Amchir, 23 A.D.2d 659, 257 N.Y.S.2d 2; Lipsman v. Warren, 10 A.D.2d 868, 199 N.Y.S.2d 761).

Indemnity shifts the entire burden of the loss from a party held liable for an injury suffered through the negligence of several to the party said to be primarily or actively responsible on the equitable principle that a wrongdoer substantially causing the injury should bear the loss (Leflar, Contribution and Indemnity between Tortfeasors, 81 U. of P., L.R., 130, 131). Though an owner of an automobile liable under section 388 of the Vehicle and Traffic Law for the loss sustained by one injured as the result of the negligence of the operator driving with permission is not barred by any theory of imputed negligence from recovering for damage to his automobile from an owner or driver of an automobile jointly responsible for the accident (Mills v. Gabriel, 259 App.Div. 60, 18 N.Y.S.2d 78, affd. 284 N.Y. 755, 31 N.E.2d 512), reasons of public policy sustain the denial of indemnity for the loss suffered by the owner as...