Hendrickson v. Philbor Motors

APPELLATE DIVISION
SECOND DEPARTMENT
Civil Practice

New York Law Journal

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Justice Mark Dillon

Hendrickson and Malone sued after their Ford Explorer—bought from Philbor Motors—crashed after Cooper Tire treads separated. Despite asserting that its liability should be limited under Civil Practice Law and Rules Article 16, Cooper did not oppose Philbor and Ford's motion to dismiss the complaint and cross claims under CPLR 3211. Supreme court granted Philbor summary judgment, and Ford "Rule 3211(a)(7) summary judgment." On an issue of first impression the Second Department held a defendant's failure to oppose a codefendant's motion to dismiss a complaint and cross claims under CPLR 3211 does not preclude that party from asserting its liability was limited under CPLR Article 16. No circumstance excusing the lower court's failure to provide CPLR 3211(c) notice applied. Absent such notice, Cooper was not aware that the lower court's disposition of Ford's cross motion might later be argued as being "on the merits" or the "functional equivalent of trial" warranting applicability of res judicata finality. As there was not evidence that Cooper was charting a summary judgment course, absent CPLR 3211 notice, the lower court's disposition of the cross motion could not be considered the functional equivalent of a trial.

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