| Charles v William Hird & Co., Inc. |
| 2013 NY Slip Op 00450 [102 AD3d 907] |
| January 30, 2013 |
| Appellate Division, Second Department |
| Renata Charles, Respondent, v William Hird &Co., Inc., et al., Respondents-Appellants, and Transcare Corporation et al.,Appellants-Respondents. |
—[*1] Law Office of Steven G. Fauth, LLC, New York, N.Y. (Gregory Day of counsel), forrespondents-appellants. Hecht, Kleeger, Pintel & Damashek (Ephrem J. Wertenteil, New York, N.Y., ofcounsel), for respondent.
In an action to recover damages for personal injuries, the defendants William Hird &Co., Inc., and Daniel Murray appeal, as limited by their brief, from so much of an orderof the Supreme Court, Kings County (Battaglia, J.), dated July 27, 2011, as granted thatbranch of the motion of the defendants Transcare Corporation and Michael Young whichwas for summary judgment dismissing the complaint insofar as asserted against thosedefendants and that branch of the plaintiff's cross motion which was for summaryjudgment on the issue of liability against the defendants William Hird & Co., Inc., andDaniel Murray, and the defendants Transcare Corporation and Michael Youngcross-appeal, as limited by their brief, from so much of the same order as denied thatbranch of their motion which was for summary judgment dismissing all cross claimsinsofar as asserted against them.
Ordered that the appeal by the defendants William Hird & Co., Inc., and DanielMurray from so much of the order as granted that branch of the motion of the defendantsTranscare Corporation and Michael Young which was for summary judgment dismissingthe complaint insofar as asserted against them is dismissed, as the defendants WilliamHird & Co., Inc., and Daniel Murray are not aggrieved by that portion of the order(see CPLR 5511; Mixonv TBV, Inc., 76 AD3d 144, 156-157 [2010]); and it is further,
Ordered that the order is modified, on the law, by deleting the provision thereofdenying that branch of the motion of the defendants Transcare Corporation and MichaelYoung which was for summary judgment dismissing all cross claims insofar as assertedagainst them, and substituting therefor a provision granting that branch of that motion; asso modified, the order is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the defendants Transcare Corporation[*2]and Michael Young, payable by the defendantsWilliam Hird & Co., Inc., and Daniel Murray, and one bill of costs is awarded to theplaintiff, payable by the defendants William Hird & Co., Inc., and Daniel Murray.
On October 23, 2008, on Rockaway Parkway in Brooklyn, near its intersection withRutland Road, a van operated by the defendant Daniel Murray and owned by thedefendant William Hird & Co., Inc. (hereinafter William Hird), attempted a U-turn infront of an oncoming ambulance operated by the defendant Michael Young and ownedby the defendant Transcare Corporation (hereinafter Transcare), resulting in a collision.The ambulance was propelled into a parked vehicle, which then struck another parkedvehicle in which the plaintiff was a passenger. The plaintiff alleges that she sustainedpersonal injuries as a result of the defendants' negligence.
The plaintiff made a prima facie showing of entitlement to judgment as a matter oflaw on the issue of liability against William Hird and Murray by demonstrating that,while operating his employer's vehicle, Murray was negligent in failing to see Young'svehicle approaching and in crossing the path of Young's vehicle when it was hazardousto do so (see Vazquez v NewYork City Tr. Auth., 94 AD3d 870 [2012]; Almonte v Tobias, 36 AD3d 636 [2007]; Torro v Schiller, 8 AD3d364 [2004]).
In opposition, William Hird and Murray failed to raise a triable issue of fact as toMurray's negligence in crossing Young's path and failing to see Young's vehicle.Furthermore, William Hird and Murray's contention that their liability was notestablished because Murray was not issued a violation by the police at the time of theaccident is without merit. Accordingly, the Supreme Court properly granted that branchof the plaintiff's cross motion which was for summary judgment on the issue of liabilityagainst William Hird and Murray.
The defendants William Hird and Murray asserted cross claims against Transcare andYoung for contribution and common-law indemnification. "The critical requirement forapportionment by contribution under CPLR article 14 is that the breach of duty by thecontributing party must have had a part in causing or augmenting the injury for whichcontribution is sought" (Raquet v Braun, 90 NY2d 177, 183 [1997] [internalquotation marks omitted]). "Similarly, the key element of a common-law cause of actionfor indemnification is not a duty running from the indemnitor to the injured party, butrather is a separate duty owed the indemnitee by the indemnitor. The duty that forms thebasis for the liability arises from the principle that every one is responsible for theconsequences of his own negligence, and if another person has been compelled. . . to pay the damages which ought to have been paid by the wrongdoer,they may be recovered from him" (id. at 183 [internal quotation marks andcitations omitted]).
The defendants Transcare and Young made a prima facie showing of entitlement tojudgment as a matter of law dismissing all cross claims insofar as asserted against themby demonstrating that they were free from fault in the happening of the accident (see Astarita v Flintlock Constr.Servs., LLC, 69 AD3d 888, 889 [2010]; cf. Weitz v Anzek Constr. Corp., 65 AD3d 678, 681[2009]). Transcare and Young established, prima facie, that they did not cause oraugment the injuries for which contribution is sought and that, since it was Murray'snegligence in the operation of William Hird's vehicle that caused the accident and theplaintiff's resulting injuries, Murray and William Hird have no right to indemnificationfrom Transcare and Young.
In opposition, William Hird and Murray failed to raise a triable issue of fact as to thealleged negligence of the defendants Transcare and Young. Accordingly, the SupremeCourt should have granted that branch of the motion of Transcare and Young which wasfor summary judgment dismissing all cross claims insofar as asserted against them (see Martin v Huang, 85 AD3d1132, 1134 [2011]). Rivera, J.P., Dillon, Roman and Cohen, JJ., concur.