Mabb v. McIntyre

Appellate Division of the Supreme Court of New York

Mabb v. McIntyre

137 A.D.2d 943, 525 N.Y.S.2d 68, 1988 N.Y. App. Div. LEXIS 1774

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 25, 1988

StatusPublished

This text of 137 A.D.2d 943 (Mabb v. McIntyre) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mabb v. McIntyre, 137 A.D.2d 943, 525 N.Y.S.2d 68, 1988 N.Y. App. Div. LEXIS 1774 (N.Y. Ct. App. 1988).

Pincite

Opinion

Weiss, J.

Appeal from an order of the Supreme Court (Hughes, J.), entered March 12, 1987 in Albany County, which denied plaintiffs’ motion to dismiss the affirmative defense and counterclaim set forth in defendant’s amended answer.

The complaint in this negligence action alleged that plaintiff Duane E. Mabb was operating a motor vehicle in which his wife, plaintiff Carol Mabb, was a passenger. Their automobile struck the rear of a motor vehicle driven by defendant causing injuries to both plaintiffs. Defendant’s amended answer alleged the affirmative defense of failure to wear available seat belts and a counterclaim for contribution and/or indemnification from Duane Mabb in the event that Carol Mabb recovers a judgment against defendant. Plaintiffs moved to dismiss the affirmative defense on the ground that it was without merit and to dismiss the counterclaim for failure to state a cause of action. Supreme Court rejected, as "patently ridiculous”, plaintiffs’ argument that the affirmative defense was defective for failure to give sufficient notice of what defendant intended to prove. The court also stated that the counterclaim constituted a "model pleading”.

The order denying dismissal of the affirmative defense and counterclaim should be affirmed. The affirmative defense gave plaintiffs adequate notice of what defendant will attempt to prove (see, Rich v Lefkovits, 56 NY2d 276, 280; see also, CPLR 3013). Plaintiffs’ argument that the seat belt defense should be dismissed on the ground that it has no factual foundation is premature. That is a question to be determined at trial. In [944]*944addition, the counterclaim sufficiently alleges a cause of action for contribution, namely, that the alleged negligence of Duane Mabb as operator of plaintiffs’ car contributed to or caused the accident. The specific acts of his negligence may be demanded in a bill of particulars.

Order affirmed, with costs. Mahoney, P. J., Casey, Weiss and Yesawich, Jr., JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

Weiss, J.

Appeal from an order of the Supreme Court (Hughes, J.), entered March 12, 1987 in Albany County, which denied plaintiffs’ motion to dismiss the affirmative defense and counterclaim set forth in defendant’s amended answer.

The complaint in this negligence action alleged that plaintiff Duane E. Mabb was operating a motor vehicle in which his wife, plaintiff Carol Mabb, was a passenger. Their automobile struck the rear of a motor vehicle driven by defendant causing injuries to both plaintiffs. Defendant’s amended answer alleged the affirmative defense of failure to wear available seat belts and a counterclaim for contribution and/or indemnification from Duane Mabb in the event that Carol Mabb recovers a judgment against defendant. Plaintiffs moved to dismiss the affirmative defense on the ground that it was without merit and to dismiss the counterclaim for failure to state a cause of action. Supreme Court rejected, as "patently ridiculous”, plaintiffs’ argument that the affirmative defense was defective for failure to give sufficient notice of what defendant intended to prove. The court also stated that the counterclaim constituted a "model pleading”.

The order denying dismissal of the affirmative defense and counterclaim should be affirmed. The affirmative defense gave plaintiffs adequate notice of what defendant will attempt to prove (see, Rich v Lefkovits, 56 NY2d 276, 280; see also, CPLR 3013). Plaintiffs’ argument that the seat belt defense should be dismissed on the ground that it has no factual foundation is premature. That is a question to be determined at trial. In [944]*944addition, the counterclaim sufficiently alleges a cause of action for contribution, namely, that the alleged negligence of Duane Mabb as operator of plaintiffs’ car contributed to or caused the accident. The specific acts of his negligence may be demanded in a bill of particulars.

Order affirmed, with costs. Mahoney, P. J., Casey, Weiss and Yesawich, Jr., JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

137 A.D.2d 943, 525 N.Y.S.2d 68, 1988 N.Y. App. Div. LEXIS 1774, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mabb-v-mcintyre-nyappdiv-1988.

Opinion

Related

Cite This Page — Counsel Stack