Berrios v. Wheels, Inc.

75 A.D.2d 775, 428 N.Y.S.2d 1002, 1980 N.Y. App. Div. LEXIS 11351

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 22, 1980
• Status: Published

Opinion

Order of the Supreme Court, New York County, entered August 6, 1979, granting defendant Carbonaro’s motion for reargument but adhering to its original decision as contained in the order entered March 9, 1979 granting the motion by United States Surgical Corp. (Surgical) for leave to serve an amended answer to deny paragraphs 7, 8 and 9 of the complaint that the vehicle involved in the accident was being operated by the defendant Carbonaro with the permission and consent of Surgical and that Carbonaro was acting within the scope and in the course of his employment with Surgical, unanimously affirmed, without costs or disbursements, and without prejudice to the following: (1) An appropriate motion made at Special Term to strike the cross claim interposed in the amended answer by Surgical against Carbonaro as beyond the authority for which leave was sought; (2) An appropriate motion by Carbonaro for leave to interpose a cross claim against Surgical for indemnity for the alleged breach of the agreement with Surgical through its officer and general counsel, Fischer, to protect Carbonaro in return for his co-operation; (3) Reserving to the trial court any rulings with respect to the propriety of the meeting between Carbonaro and the private attorneys for Surgical and the admissibility of any information disclosed thereat. The appeal from the order of March 9, 1979 is dismissed, without costs or disbursements, as subsumed in the appeal from the order of August 6, 1979. Concur—Murphy, P. J., Kupferman, Birns, Markewich and Yesawich, JJ.