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Cioffi v. S.M. Foods, Inc.

Supreme Court of New York, Second Department

December 24, 2019

Frederick M. Cioffi, et al., plaintiffs-respondents-appellants,
v.
S.M. Foods, Inc., et al., defendants third-party plaintiffs-respondents, Atlanta Foods International, et al., defendants-respondents, Russell McCall's, Inc., defendant-appellant-respondent, et al., defendants; Village of Tuckahoe, et al., third-party defendants-appellants-respondents. Index No. 55391/11

          Argued - October 5, 2018

         D58233 I/afa

          White & Quinlan, LLP, Garden City, NY (Terence M. Quinlan and Michael White of counsel), for defendant-appellant-respondent.

          Maynard O'Connor Smith & Catalinotto, LLP, Albany, NY (Edwin J. Tobin, Jr., of counsel), for third-party defendants-appellants-respondents.

          Grant & Longworth (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Kenneth J. Gorman], of counsel), for plaintiffs-respondents-appellants.

          Baxter Smith & Shapiro, P.C., White Plains, NY (Sim R. Shapiro of counsel), for defendants third-party plaintiffs-respondents.

          WILLIAM F. MASTRO, J.P. REINALDO E. RIVERA COLLEEN D. DUFFY VALERIE BRATHWAITE NELSON, JJ.

          DECISION & ORDER

         In an action to recover damages for personal injuries, etc., the defendant Russell McCall's, Inc., appeals, the third-party defendants separately appeal, and the plaintiffs cross-appeal, from an order of the Supreme Court, Westchester County (Mary H. Smith, J.), dated April 4, 2016. The order, insofar as appealed from by the defendant Russell McCall's, Inc., denied that branch of the motion of the defendants Russell McCall's, Inc., and Doug Jay which was for summary judgment dismissing the complaint (other than the second cause of action) insofar as asserted against the defendant Russell McCall's, Inc. The order, insofar as appealed from by the third-party defendants, denied that branch of their motion which was for summary judgment dismissing the third-party complaint on the ground, among others, that the third-party action was barred by the Workers' Compensation Law. The order, insofar as cross-appealed from by the plaintiffs, inter alia, denied those branches of their motion which were pursuant to CPLR 3025 for leave to serve a supplemental summons and amended complaint and for summary judgment on the issue of liability on the first and second causes of action insofar as asserted against the defendant Daniel Burke, granted those branches of the motion of the defendants Russell McCall, Inc., and Doug Jay which were for summary judgment dismissing the complaint insofar as asserted against Doug Jay and the second cause of action insofar as asserted against the defendant Russell McCall's, Inc., and granted that branch of the motion of the defendants SM Foods, Inc., GFI Boston, LLC, PLM Trailer Leasing, Daniel Burke, and Ryder Truck Rental, Inc., which was for summary judgment dismissing the complaint insofar as asserted against the defendants PLM Trailer Leasing and Ryder Truck Rental, Inc.

         ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying those branches of the plaintiffs' motion which were for summary judgment on the issue of liability on the first and second causes of action insofar as asserted against the defendant Daniel Burke, and substituting therefor a provision granting those branches of the motion, (2) by deleting the provision thereof granting that branch of the motion of the defendants Russell McCall's Inc., and Doug Jay which was for summary judgment dismissing the second cause of action insofar as asserted against the defendant Russell McCall, Inc., and substituting therefor a provision denying that branch of the motion, and (3) by deleting the provision thereof denying that branch of motion of the third-party defendants which was for summary judgment dismissing so much of the third-party complaint as was predicated upon the alleged negligence of the third-party defendant Vincent Pinto in the manner in which he parked his vehicle on the subject roadway, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with one bill of costs to the third-party defendants, payable by the defendants third-party plaintiffs, one bill of costs payable to the plaintiffs by the defendant Daniel E. Burke, and one bill of costs to the defendants SM Foods, Inc., GFI Boston, LLC, PLM Trailer Leasing, and Ryder Truck Rental, Inc., payable by the plaintiffs.

         On May 22, 2009, the plaintiff Frederick M. Cioffi (hereinafter the injured plaintiff), a police officer, allegedly was injured while conducting a traffic stop on foot when he was struck by a tractor trailer operated by the defendant Daniel Burke. The tractor was owned by the defendant Ryder Truck Rental, Inc. (hereinafter Ryder), and the trailer was owned by the defendant PLM Trailer Leasing (hereinafter PLM). Each had been leased to the defendant GFI Boston, LLC (hereinafter GFI), Burke's employer, pursuant to 30-day rental agreements, each of which, by its respective terms, had expired prior to the accident. Prior to the accident, police officer Vincent Pinto had stopped his vehicle on the roadway in order to ask the injured plaintiff whether he wanted assistance and to assist with a developing traffic delay. At his deposition, Burke testified that he was focused on avoiding Pinto's vehicle while attempting to execute a turn, and that after he had completed the turn, he saw the injured plaintiff on the ground through his side-view mirror.

         The injured plaintiff, and his wife suing derivatively (hereinafter together the plaintiffs), commenced this personal injury action against, among others, the defendants GFI, Ryder, PLM, and Burke, and certain of GFI's corporate parents and their principals, including SM Foods, Inc. (hereinafter SM Foods), Russell McCall's, Inc. (hereinafter RMI), and Doug Jay, the president of RMI. The amended complaint alleged that Burke's negligence and violation of General Municipal Law § 205-e caused the accident, and that the other defendants, among other things, are vicariously liable for his negligence. SM Foods, GFI, PLM, and Burke commenced a third-party action seeking contribution and indemnification against the third-party defendants, Village of Tuckahoe and Officer Pinto, based on the alleged negligence of the injured plaintiff and Pinto.

         The defendants SM Foods, GFI, PLM, Burke, and Ryder moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against the defendants PLM and Ryder. The defendants RMI and Jay moved for summary judgment dismissing the complaint insofar as asserted against them. The third-party defendants moved for summary judgment dismissing the third-party complaint. The plaintiffs moved, inter alia, pursuant to CPLR 3025 for leave to serve a supplemental summons and amended complaint and for summary judgment on the issue of Burke's liability. In the order appealed from, insofar as relevant to these appeals, the Supreme Court denied the plaintiffs' motion and granted that branch of the motion of the defendants SM Foods, GFI, PLM, Burke, and Ryder which was for summary judgment dismissing the complaint insofar as asserted against the defendants PLM and Ryder. The court also granted those branches of the motion of the defendants RMI and Jay which were for summary judgment dismissing the complaint insofar as asserted against Jay and the second cause of action, alleging a violation of General Municipal Law § 205-e, insofar as asserted against RMI. In addition, the court denied the third-party defendants' motion, except to the extent that the third-party complaint alleged that Pinto had negligently directed Burke to make the left turn. The defendant RMI and the third-party defendants separately appeal, and the plaintiffs cross-appeal.

         The plaintiffs contend that the Supreme Court erred in denying that branch of their motion which was for summary judgment on the issue of Burke's liability. As to the first cause of action, alleging common-law negligence, the court denied the plaintiffs' motion for summary judgment on the ground that they had failed to establish that the injured plaintiff was free from comparative fault. Since the order appealed from was entered, the Court of Appeals has clarified that a plaintiff moving for summary judgment on the issue of a particular defendant's liability "does not bear the double burden of establishing a prima facie case of defendant's liability and the absence of his or her own comparative fault" (Rodriguez v City of New York, 31 N.Y.3d 312, 324-325; see Tsyganash v Auto Mall Fleet Mgt., Inc., 163 A.D.3d 1033, 1034; Poon v Nisanov, 162 A.D.3d 804, 807). Thus, the plaintiffs were not required to demonstrate that the injured plaintiff was free from comparative negligence in order to obtain summary judgment on the issue of Burke's liability on the first cause of action.

         General Obligations Law § 11-106 allows a police officer to bring a tort claim for injuries suffered in the line of duty as the result of, inter alia, the negligence of any person other than the police officer's employer or co-employee (see Williams v City of New York, 2 N.Y.3d 352, 363; Rodriguez v County of Rockland, 43 A.D.3d 1026, 1028). The evidence submitted on the plaintiffs' motion established that, at the time of the accident, the injured plaintiff was standing in the southbound lane of Midland Avenue on the driver's side of a car which he had stopped at the intersection of Midland Avenue and Winter Hill Road. Burke was stopped at the traffic light at the corner of eastbound Winter Hill Road and Midland Avenue. When the light changed, Burke began his left turn onto northbound Midland Avenue. Prior to beginning his turn, Burke was aware that ...


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