Rye v. Kolter

Appellate Division of the Supreme Court of New York

Rye v. Kolter

39 A.D.2d 821, 333 N.Y.S.2d 96, 1972 N.Y. App. Div. LEXIS 4587

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

DecidedMay 18, 1972

StatusPublished

Cited by2 cases

This text of 39 A.D.2d 821 (Rye v. Kolter) 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

Rye v. Kolter, 39 A.D.2d 821, 333 N.Y.S.2d 96, 1972 N.Y. App. Div. LEXIS 4587 (N.Y. Ct. App. 1972).

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Opinion

Order unanimously affirmed, with costs. Memorandum: Plaintiff’s intestate, an Ontario resident, was fatally injured while a passenger in an automobile owned by an Ontario resident and operated by another Ontario resident in an accident which occurred in New York State with an. automobile owned and operated by a New York resident. ]f Special Term held that section 388 of the Vehicle and Traffic Law which provides that, “Every owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries * * * resulting from negligence ” prevented the Canadian defendant from pleading the Ontario Guest Statute. We find that section inapplicable since its purpose is to impute the negligence of the driver to an absentee owner (Continental Auto Lease Corp. v. Campbell, 19 N Y 2d 350). It does not establish a choice of law rule for accidents occurring in New York State. (Cf. Farber v. Smolack, 20 N Y 2d 198.) We affirm, however, on the authority of Fosillo v. Matthews (30 A D 2d 1049, affg. 59 Misc 2d 539, mot. for lv. to app. den. 23 N Y 2d 646, mot. for rearg. den. 24 N Y 2d 740) where this court held that the Massachusetts Guest Statute should not be applied where an accident involving Massachusetts residents and a Massachusetts automobile, occurred in New York State. (Appeal from order of Niagara Special Term, denying motion to serve amended answer in negligence action.) Present — Marsh, J. P., Witmer, Moule, Cardamone and Henry, JJ.

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Order unanimously affirmed, with costs. Memorandum: Plaintiff’s intestate, an Ontario resident, was fatally injured while a passenger in an automobile owned by an Ontario resident and operated by another Ontario resident in an accident which occurred in New York State with an. automobile owned and operated by a New York resident. ]f Special Term held that section 388 of the Vehicle and Traffic Law which provides that, “Every owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries * * * resulting from negligence ” prevented the Canadian defendant from pleading the Ontario Guest Statute. We find that section inapplicable since its purpose is to impute the negligence of the driver to an absentee owner (Continental Auto Lease Corp. v. Campbell, 19 N Y 2d 350). It does not establish a choice of law rule for accidents occurring in New York State. (Cf. Farber v. Smolack, 20 N Y 2d 198.) We affirm, however, on the authority of Fosillo v. Matthews (30 A D 2d 1049, affg. 59 Misc 2d 539, mot. for lv. to app. den. 23 N Y 2d 646, mot. for rearg. den. 24 N Y 2d 740) where this court held that the Massachusetts Guest Statute should not be applied where an accident involving Massachusetts residents and a Massachusetts automobile, occurred in New York State. (Appeal from order of Niagara Special Term, denying motion to serve amended answer in negligence action.) Present — Marsh, J. P., Witmer, Moule, Cardamone and Henry, JJ.

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39 A.D.2d 821, 333 N.Y.S.2d 96, 1972 N.Y. App. Div. LEXIS 4587, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rye-v-kolter-nyappdiv-1972.

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