| Conigliaro v Premier Poultry, Inc. |
| 2009 NY Slip Op 08776 [67 AD3d 954] |
| November 24, 2009 |
| Appellate Division, Second Department |
| Andrew Conigliaro et al., Plaintiffs, v Premier Poultry,Inc., et al., Defendants and Third-Party Plaintiffs-Appellants. City of New York, Third-PartyDefendant-Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Leonard Koerner and StephenJ. McGrath of counsel), for third-party defendant-respondent.
In a consolidated action to recover damages for personal injuries, the defendants andthird-party plaintiffs appeal, as limited by their brief, from so much of an order of the SupremeCourt, Kings County (Rothenberg, J.), dated October 29, 2008, as, upon granting the motion ofthe plaintiff Andrew Conigliaro for summary judgment on the issue of liability, in effect,searched the record and awarded summary judgment in favor of the third-party defendantdismissing the third-party complaint.
Ordered that the order is modified, on the law, by deleting the provision thereof, in effect,searching the record and awarding summary judgment to the third-party defendant dismissingthe third-party cause of action for contribution for the injuries sustained by the plaintiff AndrewConigliaro; as so modified, the order is affirmed insofar as appealed from, with one bill of costspayable to the defendants third-party plaintiffs.
This case involves a motor vehicle accident, in which the plaintiff Andrew Conigliaro, apassenger in a vehicle operated by the plaintiff Joseph Siciliano and owned by the City of NewYork (hereinafter the City), was injured in a collision with a vehicle operated by the defendantStephen M. Flynn and owned by the defendant Premier Poultry, Inc. In two actions, which werelater consolidated, the plaintiffs sued the defendants Premier Poultry, Inc., and Stephen M. Flynn(hereinafter the appellants). The appellants in turn sought contribution from the plaintiff JosephSiciliano to the extent that any injuries and damages were found to be due to his comparativenegligence, and also commenced a third-party action against the City based on its vicariousliability as the owner of the vehicle operated by Joseph Siciliano.
Subsequently, Conigliaro moved for summary judgment on the issue of liability. Upongranting that motion, the Supreme Court, in effect, searched the record and awarded summaryjudgment to the City dismissing the third-party complaint.[*2]
As the City correctly concedes, this was error (seeMowczan v Bacon, 92 NY2d 281 [1998]). The fact that Conigliaro, as an innocentpassenger, was awarded summary judgment as to the appellants' liability does not preclude alater apportionment of fault between the drivers of the two vehicles involved in the accident(see Garcia v Tri-County Ambulette Serv., 282 AD2d 206 [2001]). Accordingly, thecourt should not have, in effect, searched the record and awarded summary judgment dismissingthe third-party cause of action for contribution asserted against the City, based on its vicariousliability as an owner, for the injuries sustained by Conigliaro to the extent that it could be shownthat the plaintiff Joseph Siciliano was comparatively negligent. Rivera, J.P., Florio, Miller andHall, JJ., concur.