Opinion
December 22, 1975
In a negligence action to recover damages for personal and property injuries, etc., plaintiffs appeal from so much of an order of the Supreme Court, Kings County, entered March 24, 1975, as denied the branch of their motion which was for summary judgment. Order modified, on the law, by inserting in the first decretal paragraph thereof, immediately after the word "denied", the following: "except that the motion is granted as to the property damage cause of action of plaintiff Colonial Bus Service, Inc., on the issue of liability, with the amount to be determined after an assessment trial; said cause of action is severed; and, as to the remaining causes of action, the liability issue shall be limited to the question of whether plaintiff William Hedge was contributorily negligent". As so modified, order affirmed insofar as appealed from, with $50 costs and disbursements to Colonial Bus Service, Inc., against defendants. It has been established on this motion that defendant Martin Sachs negligently drove his automobile across the intersection where the accident occurred. Admittedly he failed to obey the stop sign there located. Thus, as between plaintiffs William and Irene Hedge and defendants, the sole liability issue that ought to be tried is whether William Hedge was contributorily negligent (CPLR 3212, subd [g]). Any contributory negligence of William Hedge, as the driver of plaintiff Colonial Bus Service, Inc.'s vehicle, is not imputable to Colonial so as to bar recovery by it of its property damages (Continental Auto Lease Corp. v Campbell, 19 N.Y.2d 350; Mills v Gabriel, 284 N.Y. 755; Molino v County of Putnam, 29 N.Y.2d 44, 49). Hopkins, Acting P.J., Cohalan, Christ, Brennan and Shapiro, JJ., concur.