| Miller v Richardson |
| 2008 NY Slip Op 01244 [48 AD3d 1298] |
| February 8, 2008 |
| Appellate Division, Fourth Department |
| Susan Miller, Appellant-Respondent, v Lorraine Richardson et al.,Respondents-Appellants, and Richmond Farms Dairy, LLC, et al., Respondents, et al.,Defendant. (Appeal No. 1.) |
—[*1] Sliwa & Lane, Buffalo (Michael J. Pastrick of counsel), fordefendants-respondents-appellants. Walsh, Roberts & Grace, Buffalo (Keith N. Bond of counsel), for defendants-respondentsRichmond Farms Dairy, LLC and John Richmond, Individually and Doing Business asRichmond Farms Dairy, LLC and/or Doing Business as Richmond and Sons. Jaeckle Fleischmann & Mugel, LLP, Buffalo (Bradley A. Hoppe of counsel), fordefendant-respondent Louis F. Kaminski.
Appeal and cross appeal from an order of the Supreme Court, Erie County (John A.Michalek, J.), entered July 19, 2006 in a personal injury action. The order, insofar as appealedand cross-appealed from, denied those parts of plaintiff's motion for partial summary judgmenton liability against defendants Richmond Farms Dairy, LLC, and John Richmond, individuallyand doing business as Richmond Farms Dairy, LLC and/or doing business as Richmond andSons, and to compel discovery against defendant Louis F. Kaminski, granted the cross motion ofdefendant Louis F. Kaminski for summary judgment, and denied the cross motion of defendantsLorraine Richardson and Dwayne Richardson seeking a determination with respect to vicariousliability.
It is hereby ordered that said appeal from the order insofar as it denied that part of the motionof plaintiff for partial summary judgment on liability against defendants Richmond Farms Dairy,LLC, and John Richmond, individually and doing business as Richmond Farms Dairy, LLCand/or doing business as Richmond and Sons, and the cross appeal are unanimously [*2]dismissed and the order is affirmed without costs.
Memorandum: Plaintiffs Susan Miller and George W. Rapson, Jr. commenced these actions,which were joined for trial, seeking damages for injuries they sustained when a vehicle driven bydefendant Lorraine Richardson and owned by defendant Dwayne Richardson (Richardsondefendants) made a sudden left turn in front of the motorcycle driven by Rapson, on which Millerwas a passenger. According to plaintiffs, the Richardson vehicle was towing a hay wagon ownedby defendants Richmond Farms Dairy, LLC, and John Richmond, individually and doingbusiness as Richmond Farms Dairy, LLC and/or doing business as Richmond and Sons(collectively, Richmond defendants). Although Rapson was driving in the proper lane of traveland applied his brakes, he was unable to avoid the collision.
In appeal No. 1, Miller contends that Supreme Court erred in denying that part of her motionfor partial summary judgment on liability against the Richmond defendants. She further contendsthat the court erred in denying that part of her motion to compel discovery against defendantLouis F. Kaminski and in granting the cross motion of Kaminski for summary judgmentdismissing Miller's complaint against him. The Richmond defendants contend in appeal No. 1that the court erred in denying their cross motion for summary judgment against Miller, and theRichardson defendants, as limited by their brief, contend that the court erred in denying theircross motion seeking a determination that the Richmond defendants are vicariously liable for anynegligence on the part of the Richardson defendants with respect to the collision.
In appeal No. 2, Rapson contends that the court erred in denying that part of his motionfor partial summary judgment on the issue of liability against the Richardson defendants and theRichmond defendants. The Richmond defendants contend that the court erred in denying theircross motion for summary judgment against Rapson, and the Richardson defendants contend thatthe court erred in denying their cross motion seeking a determination that the Richmonddefendants are vicariously liable for any negligence on the part of the Richardson defendants withrespect to the collision.Finally, in appeal No. 3, Miller contends that the court, upon granting her motion for leave toreargue and that part of the cross motion of the Richardson defendants for leave to renew theiropposition to Miller's prior motion, erred in adhering to its prior decision denying that part ofMiller's motion for partial summary judgment on liability against the Richmond defendants andin denying that part of Miller's motion for partial summary judgment on liability against theRichardson defendants. The Richardson defendants contend that, upon granting that part of theircross motion for leave to reargue with respect to the Richmond defendants, the court erred indenying their cross motion seeking a determination that the Richmond defendants are vicariouslyliable for any negligence on the part of the Richardson defendants with respect to the collision.
We note that the Richmond defendants cross-moved for leave to reargue their cross motionfor summary judgment on liability against Miller in appeal No. 1. Because the court by its orderin appeal No. 3 granted leave to reargue and, upon reargument, adhered to its priordetermination, the Richmond defendants should have appealed from the order in appeal No. 3,which superseded the initial order, rather than from the order in appeal No. 1 (see Loafin'Tree Rest. v Pardi [appeal No. 1], 162 AD2d 985 [1990]). Nevertheless, we exercise ourdiscretion to treat the notice of appeal of the Richmond defendants as valid and deem their appealas taken from the order in appeal No. 3 (see CPLR 5520 [c]; Kanter v Pieri, 11 AD3d 912[2004]). Similarly, the appeal of Miller from the order in appeal No. 1 insofar as it denied thatpart of her motion for partial summary judgment on liability against the Richmond defendantsand the cross appeal of the Richardson defendants must be dismissed (see Loafin' TreeRest., 162 AD2d 985 [1990]).[*3]
We conclude with respect to the orders in appealNos. 2 and 3 that the court erred in denying that part of the motion of Miller seeking partialsummary judgment on liability against the Richardson defendants and that part of the motion ofRapson seeking partial summary judgment on liability against the Richardson defendants. Wetherefore modify the orders in appeal Nos. 2 and 3 accordingly. Miller and Rapson met theirburden on their motions "by establishing as a matter of law 'that the sole proximate cause of theaccident was [Lorraine Richardson's] failure to yield the right of way' to [Rapson]" (Pomietlasz v Smith, 31 AD3d1173, 1174 [2006]), and the Richardson defendants failed to raise a triable issue of fact(see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Indeed,Lorraine Richardson admitted at her deposition that she did not see Rapson's motorcycle until shehad already begun to turn, and Miller and Rapson thus established as a matter of law thatLorraine Richardson "was negligent in failing to see that which, under the circumstances, [s]heshould have seen, and in crossing in front of [Rapson's] vehicle when it was hazardous to do so"(Stiles v County of Dutchess, 278 AD2d 304, 305 [2000]).We further conclude with respect to the orders in appeal Nos. 2 and 3 that the courterred in denying the cross motions of the Richmond defendants for summary judgment againstMiller and Rapson, respectively, and we therefore further modify the orders in appeal Nos. 2 and3 accordingly. The Richmond defendants, as a matter of law, are not liable for injuries sustainedby Miller and Rapson by virtue of the Richmond defendants' ownership of the hay wagon beingtowed by Lorraine Richardson at the time of the collision. While Vehicle and Traffic Law§ 388 (1) imposes joint and several liability for negligence on the part of the owners ofboth a towing vehicle and the vehicle being towed, and a trailer is a "vehicle" within the meaningof Vehicle and Traffic Law § 388 (2), we nevertheless conclude as a matter of law that thehay wagon is not a "trailer" as that term is defined in Vehicle and Traffic Law § 156. Thehay wagon is "designed and primarily used for [non-highway] purposes and [is] only occasionallydrawn by . . . a motor vehicle" (id.).Finally, we conclude with respect to the order in appeal No. 1 that the court properly grantedthe cross motion of Kaminski for summary judgment dismissing Miller's complaint against him.We agree with the court's determination that "there is no evidence which would render any theoryof liability applicable to [him]." Present—Scudder, P.J., Smith, Centra, Lunn andPeradotto, JJ.