Citation Numbers: 50 A.D.2d 830
Filed Date: 12/15/1975
Status: Precedential
Modified Date: 1/12/2022
— In an action by one who had leased an automobile, against the owner-lessor, a self-insurer, to recover the amount of a judgment rendered against the driver for personal injuries, plaintiff appeals from an order of the Supreme Court, Queens County, dated March 4, 1975, which denied his motion for . summary judgment. Order reversed, on the law, without costs, motion granted and judgment directed to be entered in favor of plaintiff and against defendant, the Hertz Corporation, in the amount of $75,292.86, plus interest. In January, 1968 plaintiff, Guercio, was seriously injured as a result of an accident which occurred while the leased vehicle was being driven by his friend, Raymond Frost, who was under the age of 21 years. In late 1970 the defendant in this action, Hertz, sued Guercio and Frost in the Civil Court of the City of New York to recover for the damage to the vehicle. Frost was charged with negligence in the operation of the vehicle and Guercio with breach of the rental contract (allowing an unauthorized [underage] individual to drive the vehicle). The jury was instructed, in accordance with the proffered defense, that if Hertz had actually granted permission to Guercio’s underage friends to operate the vehicle, the verdict must be for Guercio. The jury so found and the trial court dismissed the complaint against Frost (who had defaulted in appearing in the action) on the ground that he was protected by the collision damage waiver in the rental agreement. Guercio commenced an action to recover for his personal injuries against Frost and Hertz in the Supreme Court. In April, 1972 he recovered a judgment against Frost in the sum of $75,292.86. His complaint was dismissed as to Hertz upon the now overruled doctrine of Gochee v Wagner (257 NY 344). The judgment against Frost remains unsatisfied, Guercio having unsuccessfully sought to have Hertz satisfy it by way of proceedings pursuant to CPLR article 52 and section 167 of the Insurance Law. In the fall of 1974 Guercio