Lufrano v. Corte ( 1976 )

Kupferman, J. (dissenting)

If the new law on comparative negligence were to apply to this case, there would be no problem. (See CPLR article 14-A—Damage Actions: Effect of Contributory Negligence And Assumption of Risk.) However, it affects only actions accruing on or after September 1, 1975, CPLR 1413, and see Practice Commentary by Dean Joseph M. McLaughlin (McKinney’s Cons Laws of NY, Book 7B, CPLR 1413, Cumulative Annual Pocket Part, 1975-1976).

Lufrano was a passenger in Corte’s car. Corte and Minot had an accident. It seems clear that Lufrano is entitled to recover. From the evidence, the jury could have determined that Corte was negligent, or that Minot was negligent, or that they were both negligent. Lufrano sued Minot, and Minot cross-claimed against Corte for indemnity under Dole v Dow Chem. Co. (30 NY2d 143; CPLR 1401). Corte also sued Minot, and the actions were consolidated in 1972. In Lufrano’s action against Minot, the verdict was naturally in favor of Lufrano, but on the cross claim Minot was found 60% negligent and Corte 40% negligent. As between Corte and Minot, the jury found Minot negligent. This was obviously because Minot was considered more negligent than Corte as demonstrated by the apportionment in Lufrano’s action.

The problem arises because contributory negligence is a part of the law to be applied to this case (see Rossman v La Grega, 28 NY2d 300, 304), and if Corte is to some extent negligent, there cannot be any recovery against Minot. It is only logical, therefore, that the Judge at Trial Term dismissed the claim of Corte against Minot, and logic leads to an affirmance. This case does not have the complications to be found in Huston v De Leonardis (44 AD2d 110).

Markewich and Lupiano, JJ., concur with Nunez, J.; Stevens, P. J., and Kupferman, J., dissent in an opinion by Kupferman, J.

Order, Supreme Court, Bronx County, entered on June 27, 1975, and the judgment entered thereon on August 19, 1975, reversed, on the law, the judgment vacated, and a new trial directed, with $60 costs and disbursements of this appeal to abide the event.