APPEAL by the plaintiff, in an action to recover damages for personal injuries, from an order of the Supreme Court (Christine A. Sproat, J.), dated June 9, 2008, and entered in Dutchess County, which granted the motion of the defendant Carmen M. Perry for leave to serve an amended answer to add a counterclaim.
The opinion of the court was delivered by: Dickerson, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
ROBERT A. SPOLZINO, J.P., JOSEPH COVELLO, DANIEL D. ANGIOLILLO and THOMAS A. DICKERSON, JJ.
The question before this Court is whether Vehicle and Traffic Law § 388(1) may be invoked by the defendant Carmen M. Perry, an allegedly negligent operator of one vehicle involved in a two-vehicle collision, in order to interpose a counterclaim against the plaintiff, who was both the owner of and the passenger in the other vehicle, thus imposing vicarious liability upon the plaintiff for the negligent acts of the operator of the plaintiff's vehicle, and thereby reducing the recovery to which the plaintiff may otherwise be entitled. We answer the question in the negative.
On September 13, 2005, the plaintiff was a passenger in a vehicle she owned, which was being driven by her then-boyfriend, the defendant Michael G. DiMicco. It is undisputed that DiMicco was operating the plaintiff's vehicle with the plaintiff's permission.
At the intersection of Holmes Road and South White Rock Road in Pawling, the plaintiff's vehicle collided with a vehicle driven by Perry. The plaintiff allegedly sustained injuries as a result of the collision.
The plaintiff commenced this action by the filing of a summons and verified complaint dated April 18, 2006. In the sole cause of action, the plaintiff asserted that, on or about September 13, 2005, the vehicle she owned, which was being operated by DiMicco, collided with the vehicle operated by Perry. The plaintiff claimed that the accident and the serious injuries she sustained as a result of the accident were caused by the defendants' negligence.
Perry served an answer, largely denying all material allegations in the complaint. In a cross claim against DiMicco, Perry asserted that, if the plaintiff did sustain damages as a result of any negligence other than her own, these damages resulted from DiMicco's negligence. Accordingly, Perry asserted that, in the event that the plaintiff was awarded a judgment against her, ...