Brooks v. Horning

Reynolds, J. Appeal from an order of the Supreme Court, Fulton County, denying appellant’s motion to dismiss the complaints and granting respondents’ motion to strike appellant’s defense of the Statute of Limitations. On September 13, 1960 an automobile of respondent George Brooks, an absent owner, driven by respondent Patricia Brooks, his daughter-in-law, was involved in an accident with an automobile owned and operated by appellant Phoebe Homing. Elizabeth Jackson and Evelyn Rulison, passengers in the Brooks’ vehicle, commenced suit against respondent George Brooks and Phoebe Horning, the appellant here. Patricia Brooks was not sued. After trial of these actions the jury returned a verdict in favor of both passengers against respondent George Brooks and a no cause of action verdict in favor of appellant. Judgment entered on these verdicts was affirmed by this court (23 A D 2d 711). Meanwhile prior to the rendering of the above-mentioned verdicts respondent George Brooks commenced an action against appellant to recover damages to his car (Action No. 1), and a second suit was commenced against appellant, by Patricia Brooks seeking to recover for personal injuries and by George Stewart Brooks, her husband, seeking to recover for loss of his wife’s services and medical expenses (Action No. 2). Both suits are based on the 1960 accident and both are grounded in negligence. Thereafter appellant moved to dismiss Action No. 1 on the ground that it was barred by the Statute of Limitations and Action No. 2 on the grounds that both claims were barred by res judicata and that respondent George Stewart Brooks’ claim for loss of his wife’s services was additionally barred by 875 the Statute of Limitations. Respondents in turn cross-moved to strike the defense of the Statute of Limitations. Special Term denied appellant’s motions and granted respondents’ cross motion and the instant appeal ensued. With respect to the motion and cross motion directed to the issue of the Statute of Limitations, appellant submitted an affidavit by her attorney accompanied by her signed and winessed statement alleging that service of the summonses in both actions was not made until September 13, 1963, at which date the three years’ Statute of Limitations had expired. In contravention of this assertion respondents’ attorney averred by affidavit that he had personally served on appellant the summons in Action No. 1 on September 4, 1963 and in Action No. 2 on September 10, 1963. Special Term held that the allegations by respondents’ attorney as to the date of service had not been overcome by the affidavit of appellant’s attorney and her unsworn statement. We agree. On a motion to dismiss a defense the evidence to be submitted is governed by CPLR 3212 (subd. [b]) (CPLR 3211, subd. [e]) which provides that “A motion * * * shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions.” Once respondents’ attorney had submitted his affidavit indicating 'that he had personally served appellant within the period of limitations it became incumbent on appellant to come forward with matter of an evidentiary nature demonstrating the presence of triable issues (Hunt Foods & Inds. v. Doliner, 49 Misc 2d 246; 6 Carmody-Wait 2d, New York Practice, §§ 39:28, 39:29). This Special Term properly found had not been achieved. The general allegations of the answer raising the defense alone are not sufficient to warrant denial of the motion (Pribyl v. Van Loan & Co., 261 App. Div. 503, mot. for rearg. den. 262 App. Div. 711, affd. 287 N. Y. 749). Nor do the affidavit of appellant’s attorney or her unsworn statement appended thereto supply the necessary countering evidence. The affidavit of appellant’s attorney was made without any personal knowledge of the date of service and, therefore, is wholly without probative value as to that issue (Di Sabato v. Soffes, 9 A D 2d 297; Hood v. Murray, 25 A D 2d 163). Furthermore, since statements of parties having personal knowledge of the facts must be in affidavit form if they are to be considered, appellant’s unsworn statement is not sufficient. (CPLR 3212, subd. [b] ; Cushman & Wakefield v. John David, Inc., 25 A D 2d 133; 4 Weinstein-Korn-Miller, N. Y. Civ. Prac., pars. 3211.49, 3212.05.) We also concur with Special Term’s determination that the judgment in the previous litigation is not a bar to the causes of action advanced in Action No. 2. Neither Patricia Brooks nor George Stewart Brooks was a party in that previous action. Conceding that Patricia Brooks’ negligence was at issue in the previous action, although, of course, there are instances when recovery can be predicated upon an owner’s negligence not attributable to his driver, nevertheless we know of no case in which res judicata has been used against one who was not himself a litigant in the previous action. To hold otherwise would preclude Patricia Brooks from ever herself litigating the question of her negligence as a party and thus effectively deny her her day in court (Willsey v. Strawway, 44 Misc 2d 601, affd. 22 A D 2d 973). Nor should she be bound by the prior verdict absolving appellant from liability. In Glaser v. Huette (232 App. Div. 119, affd. 256 N. Y. 686), which is factually analogous to the present case except for the fact that in Glaser both litigants in the second action were litigants in the first and both codefendants in the first action were found negligent by the jury whereas here respondent George Brooks, the owner of the ear Patricia was driving, was found negligent and appellant was absolved from liability, the court in rejecting the applicability of the defense of res judicata stated (p. 119): “We think that since the parties now here were not adversaries in the former suits but codefendants wherein no duty existed to contest the issue of negligence as between 876 ■them and no pleadings existed between them, the decisions there settled nothing as to the liability of the codefendants to each other. Therefore, the plea of res adjudicata was not available to this defendant.” The test is thus whether the litigants in the second action were in an adversarial relation in the prior suit and such is clearly not the case here where Patricia and George Stewart Brooks were not even litigants in that suit. Once it is determined that the parties were not adversaries in the first action, the result actually rendered. in such action has no bearing whatsoever on the maintenance of a subsequent action. Cummings v. Dresher (18 N Y 2d 105) did not, in our opinion, overrule Glaser (see MacGilfrey v. Hotaling, 26 A D 2d 977), nor does B. R. De Witt, Inc., v. Hall (19 N Y 2d 141) portend a different result. The minority memorandum seems to rely to some extent on the “ concurring opinion ” of Justice Halpern in Ordway v. White (14 A D 2d 498). In essence, however, Justice Halpern dissented from the theory of the majority decision and expressed concurrence solely upon the ground that the scanty record was insufficient to permit the court to determine the “question of identity of issues” (p. 502); but even so the distinction between issues which Justice Halpern there emphasized, and which the minority memorandum cites as authority for reversal in this case, on the contrary supports affirmance here for, as Justice Halpern wrote, “ the issue of contributory negligence of the plaintiff in the present action is 'not necessarily identical with the issue of his negligence as a defendant in the passenger’s action.” Order affirmed, without costs. Gibson, P. J., Reynolds, Aulisi and Staley, Jr., JJ., concur in memorandum by Reynolds, J.; Gibson, P. J., in a separate memorandum in which Reynolds, Aulisi and Staley, Jr., JJ., concur. Herlihy, J., concurs in part and dissents in part, and votes to modify and affirm in a memorandum.