Appellate Division of the Supreme Court of New York, 1971

Shelley v. Carrier Bus Corp.

Shelley v. Carrier Bus Corp.
Appellate Division of the Supreme Court of New York · Decided April 26, 1971
36 A.D.2d 862; 321 N.Y.S.2d 829; 1971 N.Y. App. Div. LEXIS 4218
Shelley v. Carrier Bus Corp.

Opinion of the Court

*863Rabin, P. J., Munder, Martuscello and Gulotta, JJ., concur; Shapiro, J., concurs, with the following memorandum: I agree with the dissent of Mr. Justice Hopkins in Zleinman v. Frank, 34 A D 2d 121, 124, but in view of the majority opinion in that case which was affirmed by the Court of Appeals (28 N Y 2d 603), I am constrained to concur. The result of a reversal here is to immunize the owner of the vehicle, Ingle, from liability merely because the suit here is directly by the bailee-passenger plaintiff against him. If the plaintiff had sued McKenna, the driver of the automobile, his liability would have been unassailable and the verdict against him would have had to be paid by Ingle's insurer, since McKenna as the operator was an assured under the Ingle liability policy (Vehicle and Traffic Law, § 345). I submit that this fact pattern warrants a narrowing of the scope of Gochee v. Wagner, 257 N. Y. 344, but it is for the Court of Appeals to make such a determination.

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