Naso v. Lafata
Opinion of the Court
In an action to recover damages for personal injuries, the appeal is from so much of a judgment entered after a jury trial as is in favor of respondent against appellant. Judgment insofar as appealed from affirmed, with costs. Respondent was a passenger in a motor vehicle owned by appellant and operated by defendant. Respondent and defendant were coemployees of a corporation of whieh appellant was president. Appellant was not present at the time and place of the collision of his vehicle with a parked car. Under this proof, appellant was neither respondent’s employer nor his fellow employee insofar as the operation of the vehicle was concerned. The fellow-servant rule, immunizing an employee from suit by his fellow employee (Workmen’s Compensation Law, § 29, subd. 6), does not apply to the owner of the vehicle where the master’s duty to transport the servant is performed by such owner acting on behalf of the master, even if the owner of the vehicle bears some relationship either to the driver or to the master (Puccio v. Carr, 177 Misc. 706, affd. 263 App. Div. 1042; Goldwasser v. Ranieri, 2 Misc 2d 606; Milone v. Bono, 8 Misc 2d 826). The driver’s immunity from suit does not inure to the absent owner of the vehicle (cf. Schubert v. Schubert Wagon Co., 249 N. Y. 253) since the latter’s liability arises, not from his relationship to the driver or master, but as a statutory consequence of derivative liability imposed by the provisions of the vehicle and traffic statutes (cf. Baugh v. Rogers, 24 Cal. 2d 200; Elfeld v. Burkham Auto Renting Co., 299 N. Y. 336). The owner' of the vehicle is thus to be treated as a third party whose liability is not eliminated by the provisions of the Workmen’s Compensation Law even though the negligence of a fellow employee was a concurring proximate cause of plaintiff’s injury (Caulfield v. Elmhurst Contr. Co., 268 App. Div. 661, affd. 294 N. Y. 803). Wenzel, Acting P. J., Beldock and Hallinan, JJ., concur; Murphy and Ughetta, JJ., dissent and vote to reverse the judgment and to dismiss the complaint, with the following memorandum: While appellant was the owner of the automobile in which respondent was a passenger when the accident occurred, it is conceded that the ear was being operated by a fellow
Case-law data current through December 31, 2025. Source: CourtListener bulk data.