Jorja C. Carr Granted Dismissal of Third-Party Action in Nassau County Wrongful Death Claim

Jorja C. Carr successfully moved for dismissal of third-party action against our client in a wrongful death lawsuit brought in Supreme Court, Nassau County. The action for monetary damages was a result of a motor vehicle accident in which an impaired driver of our client’s vehicle collided with an allegedly illegally parked truck. The passenger in our client’s vehicle died as a result of the impact. Our client’s insurer disclaimed coverage on the basis that the impaired driver, a mechanic hired to perform repairs, did not have permission or consent to drive our client’s vehicle for his personal use while it was being repaired.  Almost two and a half years following the commencement of the original action, the illegally parked truck owner commenced a third-party action seeking contribution from our client and to contest the ‘permissive use defense.’  During the two and a half year delay, the impaired driver of our client’s vehicle was deported from the United States due to the manslaughter charges related to the accident.  We moved for dismissal pursuant to CPLR §1010 arguing that the third party plaintiff truck owner became aware of our client’s identity no later than one year prior and that the delay in bringing the third party action caused substantial prejudice to our client since he could no longer depose or cross-examine the now deported driver regarding the use of the subject vehicle. The Court held that “inasmuch as [our client] is wholly unable to prepare his defense as a direct result of the lengthy delay in filing the second third-party complaint…. [T]he only appropriate remedy is dismissal.”

       
 

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