Kleinman v. Frank

Martuscello, J. The issue raised by this appeal is whether the doctrine of Gochee v. Wagner (257 N. Y. 344), namely, that the negligence of the driver of a motor vehicle will be imputed to an owner present in the vehicle, bars this action by a sub-lessee-passenger of an automobile against the driver, the owner and the lessor. On August 26, 1966, the respondent, Ranz, subleased an automobile from the appellant Manhattan Beach Auto Rental, Inc., which had leased the vehicle from the owner, the appellant Chasey Auto Rental, Inc. On August 28, 1966, while the appellant Frank was driving the automobile with the permission of the respondent, who was seated in the front right seat, the car was involved in a collision with another vehicle. The respondent sued all three appellants and the other driver, charging the appellants with negligence in the operation and control of the Frank-driven vehicle. The appellants moved for summary judgment dismissing the respondent’s complaint, on the ground that the respondent was barred from recovering against them because if the driver-appellant was negligent her negligence would be imputed to the respondent (sublessee) in her action against the driver, the lessor and the owner. The Special Term denied the motion in all respects. It noted that the rule that the negligence of the driver will be imputed to the owner present in the car does not apply to an action by the owner (sublessee here) against the driver. Clearly, the learned Justice at Special Term was correct in so holding (Webb v. Elmira Water, Light & R. R. Co., 144 Misc. 506). Accordingly, the Special Term properly denied the motion with respect to the appellant-driver Frank. However, it is also clear that the driver’s negligence is imputed to an owner present in the car in an action against third parties (Gochee v. Wagner, 257 N. Y. 344, supra). The rationale for this rule is that the owner present in the car has the legal right to control its operation and the mere fact that he allows another to drive does not change his rights or limit his liability (Gochee v. Wagner, supra, p. 348). With these two rules in mind, the decisive issue in this case is whether the lessor and the owner of the car are to be treated [123] as third parties. If they are to be so treated, the respondent may not prevail against them, since the negligence of the driver would be imputed to her in a suit against third parties. The recent case of Ullery v. National Car Rental System (28 A D 2d 1111, revd. 23 N Y 2d 677) appears to be decisive on the issue of whether the appellants Manhattan Beach and Chasey are to be treated as third parties in the respondent’s suit against them. There, as appears from the memorandum decision of the Appellate Division, First Department, the plaintiff leased a truck from the defendant National Car Rental. He was injured when he was a passenger in the truck and it . was in an accident. He sued National for the injuries he sustained and National moved for summary judgment. The Special Term denied the motion and on appeal the Appellate Division reversed and granted the motion. The Appellate Division held that the plaintiff did not have a cause of action against National because the negligence of the driver would be imputed to him, since he (the plaintiff lessee) was a passenger at the time of the accident and had the legal right to control the truck’s operation. The decision was based on Gochee v. Wagner (257 N. Y. 344, supra). The Court of Appeals reversed and denied National’s motion. The State Reporter’s syllabus (23 N Y 2d 677) indicates that the complaint alleged that the truck had been rented jointly to the plaintiff and the driver, William Cameron; that National’s employee had agreed to rent to the plaintiff only on condition that Cameron would drive, since the plaintiff’s license was valid only in New Jersey; and that Cameron was in complete charge of the truck, with National’s specific permission to drive. On these allegations the Court of Appeals held that a triable issue was presented as to whether, in renting the truck to the plaintiff, National had imposed as a condition a requirement that it be operated by Cameron, adding that if this condition were actually imposed the plaintiff did not have complete legal control of the vehicle so as to bring the case within the doctrine of Gochee v. Wagner (supra). However, the Court of Appeals in no way cast doubt on the holding of the Appellate Division that the negligence of one driving with the permission of the sole and unconditional lessee would be imputed to the lessee in an action by the lessee against the lessor. In the case at bar no question is raised as to the claim that the respondent was the sole and unconditional sublessee and thus in complete control. [124] I am of the opinion that the law is clear that the appellants Manhattan Beach and Chasey are to be treated as third parties in the respondent’s action against them. Accordingly, under the doctrine of Gochee v. Wagner (supra), the driver-appellant’s negligence is imputed to the respondent sublessee in her action against the appellants Manhattan Beach and Chasey. The order of Special Term should be modified, on the law, by limiting its decretal provision, which denied the motion, to defendant Frank and by adding a provision that the motion is granted insofar as made by defendants Chasey and Manhattan Beach and that the respondent’s action against the latter two defendants is severed from the other causes in the action. As so modified, the order should be affirmed, without costs.