Matera v. Mystic Transportation9/22/2003
This opinion is uncorrected and subject to revision before publication in the Official Reports.
(*1)
Argued - May 19, 2003
DECISION & ORDER
(Index No. 19220/97); (Index No. 5205/98); (Index No. 7405/98); (Index No. 00227/00); (Index No. 00271/99; (*3)(Index No. 00280/99); (Index No. 00325/99); (Index No. 19004/99)
In eight related actions, inter alia, to recover damages for wrongful death, (1) Mystic Transportation, Inc., and Mystic Bulk Carriers, Inc. (the plaintiffs in Action No. 2, the defendants in Action Nos. 1, 4, 5, 6, and 7, and defendants third-party plaintiffs in Action No. 8), and Frank P. Gangone, (a defendant in Action Nos. 1, 4, 5, 6, and 7, and a defendant third-party plaintiff in Action No. 8), appeal from so much of an order of the Supreme Court, Westchester County (LaCava, J.), entered January 29, 2002, as denied that branch of their motion which was for summary judgment dismissing the negligence causes of action insofar as asserted against them, denied that branch of their motion which was for summary judgment on their causes of action against Michael Matera, David Matera, and Stephanie Laughlin as co-executors of the estate of Doris Matera, denied that branch of their motion which was for summary judgment dismissing the causes of action to recover damages pursuant to Navigation Law article 12 insofar as asserted against them, granted those branches of the separate motions of the New York State Thruway Authority (the plaintiff in Action No. 8), CNA Insurance Companies, a/s/o New York State Thruway Authority (the plaintiff in Action (*5)No. 4), Zurich Insurance Company, a/s/o New York State Thruway Authority (the plaintiff in Action No. 5), Travelers Indemnity Company of Illinois , a/s/o New York State Thruway Authority (the plaintiff in Action No. 6), and Reliance National Insurance Company, a/s/o New York State Thruway Authority (the plaintiff in Action No. 7) which were for summary judgment dismissing the affirmative defenses of comparative negligence against them, and granted the motion of the City of Yonkers (the defendant in Action Nos. 2, 3, 4, 5, 6, and 7 and the third-party defendant in Action No. 8) which was for summary judgment dismissing all of the claims and the third-party complaint insofar as asserted against it by Mystic Transportation, Inc., Mystic Bulk Carriers, Inc., and Frank P. Gangone, and (2) the New York State Thruway Authority (the plaintiff in Action No. 8) cross-appeals, as limited by its brief, from so much of the same order as denied that branch of its motion which was, in effect, for summary judgment on the issue of liability against Mystic Transportation, Inc., and Mystic Bulk Carriers, Inc., on its cause of action to recover damages pursuant to Navigation Law article 12.
ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion of the New York State Thruway Authority which was, in effect, for summary judgment on the issue of liability against Mystic Transportation, Inc., and Mystic Bulk Carriers, Inc., on its cause of action to recover damages pursuant to Navigation Law article 12 and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with one bill of costs to the New York State Thruway Authority and the City of Yonkers payable by Mystic Transportation, Inc., and Mystic Bulk Carriers, Inc.
On the night of October 8, 1997, Frank Gangone was driving a truck for Mystic Transportation, Inc., and Mystic Bulk Carriers, Inc. (hereinafter collectively Mystic), pulling a tanker filled with gasoline owned by Texaco, Inc. He
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