| Schiffman v Hann Auto Trust |
| 2008 NY Slip Op 09063 [56 AD3d 650] |
| November 18, 2008 |
| Appellate Division, Second Department |
| Bruria Schiffman, Respondent, v Hann Auto Trust et al.,Respondents-Appellants, and Lawrence H. Schiffman,Appellant-Respondent. |
—[*1] Bee Ready Fishbein Hatter & Donovan, LLP, Mineola, N.Y. (Robert M. Conti of counsel),for respondents-appellants.
In an action to recover damages for personal injuries, (1) the defendant Lawrence H.Schiffman appeals, as limited by his brief, from so much of an order of the Supreme Court,Nassau County (Palmieri, J.), entered June 2, 2006, as conditionally granted the motion of thedefendants Hann Auto Trust and Hann Financial Services Corporation for summary judgment ontheir cross claim against him for contractual indemnification, and the defendants Hann AutoTrust and Hann Financial Services Corporation cross-appeal, as limited by their notice of appealand brief, from so much of the same order as limited their recovery on the cross claim to anamount in excess of the minimum amount of liability insurance required to be carried by law, and(2) the defendants Hann Auto Trust and Hann Financial Services Corporation appeal from ajudgment of the same court (Brandveen, J.), dated January 3, 2007, which, upon a jury verdict, isin favor of the plaintiff and against them in the principal sum of $650,000.[*2]
Ordered that the appeal from the judgment is dismissedas abandoned; and it is further,
Ordered that the order entered June 2, 2006 is reversed insofar as appealed andcross-appealed from, on the law, the motion of the defendants Hann Auto Trust and HannFinancial Services Corporation for summary judgment on their cross claim against the defendantLawrence H. Schiffman for contractual indemnification is denied, the cross claim is severed, andthe matter is remitted for further proceedings in accordance herewith; and it is further,
Ordered that one bill of costs is awarded to the defendant Lawrence H. Schiffman payable bythe defendants Hann Auto Trust and Hann Financial Services Corporation.
The defendant Lawrence H. Schiffman (hereinafter the appellant) leased a vehicle from PennToyota, LTD, which assigned the lease to the defendant Hann Auto Trust and/or the defendantHann Financial Services Corporation (hereinafter together Hann). Subsequently, DanielSchiffman, the appellant's son, was involved in an accident while using the vehicle with theappellant's permission. The plaintiff Bruria Schiffman, Daniel's wife and a passenger in thevehicle, was injured in the accident. The plaintiff commenced this action against the appellantand Hann, alleging that they were liable for her injuries pursuant to Vehicle and Traffic Law§ 388. Hann asserted a cross claim against the appellant for contractual indemnificationpursuant to a provision in the vehicle lease, and moved for summary judgment on its cross claim.
The Supreme Court should have denied Hann's motion for summary judgment on its crossclaim for contractual indemnification. In opposition to Hann's prima facie showing of itsentitlement to summary judgment on its cross claim, the appellant raised a triable issue of factconcerning whether the type size of the indemnification provision of the subject lease fails tomeet the requirements of CPLR 4544 and is thus unenforceable (see CPLR 105 [t];Gulf Ins. Co. v Kanen, 13 AD3d 579, 580 [2004]; Matter of Filippazzo v GardenState Brickface Co., 120 AD2d 663, 665 [1986]).
On its cross appeal, Hann contends that because Vehicle and Traffic Law § 370 (3),which requires those engaged in the business of renting or leasing "rental vehicles" to provide aminimum amount of primary insurance to their renters, does not apply to those engaged in thebusiness of leasing "leased vehicles," the Supreme Court should not have limited Hann's recoveryon its cross claim to an amount in excess of the minimum amount of liability insurance requiredto be carried by law (see Vehicle and Traffic Law §§ 121-d, 137-a;ELRAC, Inc. v Ward, 96 NY2d 58, 78 [2001]). It cannot be determined on this recordwhether the subject vehicle was a "rental vehicle" within the meaning of Vehicle and Traffic Law§ 370 (3). Therefore, if the lease is found to meet the type-size requirements of CPLR4544, thereby entitling Hann to recover on its cross claim for contractual indemnification, theSupreme Court shall hold a hearing to determine whether the subject vehicle was a "rentalvehicle" within the meaning of Vehicle and Traffic Law § 370 (3), and thus, whetherHann's recovery should be limited to an amount in excess of the minimum amount of liabilityinsurance required by that statute (see ELRAC, Inc. v Ward, 96 NY2d at 78).
The parties' remaining contentions are without merit.[*3]
Motion by the defendants Hann Auto Trust and HannFinancial Services Corporation, inter alia, to dismiss an appeal by the defendant Lawrence H.Schiffman from an order of the Supreme Court, Nassau County, entered June 2, 2006. Bydecision and order on motion of this Court dated May 5, 2008 [2008 NY Slip Op 71016(U)], thatbranch of the motion which was to dismiss that appeal was held in abeyance and referred to thepanel of Justices hearing the appeals and cross appeal for determination upon the argument orsubmission thereof.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, andupon the argument of the appeals and cross appeal, it is
Ordered that the branch of the motion which was to dismiss the appeal by Lawrence H.Schiffman from the order entered June 2, 2006, is denied. Skelos, J.P., Santucci, Balkin andChambers, JJ., concur. [See 12 Misc 3d 1164(A), 2006 NY Slip Op 51060(U).]