Opinion
April 5, 1985
Appeal from the Supreme Court, Allegany County, Kuszynski, J.
Present — Dillon, P.J., Callahan, Denman, Green and Schnepp, JJ.
Order unanimously modified, on the law, and, as modified, affirmed, without costs, in accordance with the following memorandum: On July 16, 1981 a car owned by defendant Walter Nesbit and operated by defendant Joyce Nesbit collided with a tractor owned by plaintiff Karl Holt and operated by his employee, third-party defendant James Jordan. Neither owner was present at the time of the accident. Plaintiff sued defendants for property damage and defendants asserted as an affirmative defense that Jordan's negligence should be imputed to the plaintiff to bar or diminish his recovery.
Special Term properly ruled that the negligence of the driver of plaintiff's vehicle shall not bar plaintiff's recovery, but erred in holding that the driver's negligence "may to the extent proved at trial be asserted in diminution of the plaintiff HOLT'S award of damages."
The general rule is that a driver's negligence should not be imputed to an absentee owner so as to bar or diminish the owner's recovery for property damage ( see, Kalechman v. Drew Auto Rental, 33 N.Y.2d 397; Continental Auto Lease Corp. v. Campbell, 19 N.Y.2d 350). The defendants' contention, apparently adopted by Special Term, that the respondeat superior relationship is an exception to this rule is without merit ( see, Smalley v Associated Transp., 52 A.D.2d 979; Hedge v. Sachs, 50 A.D.2d 855). The Kalechman court held "that the general rule should be applied without exception * * * no matter what [plaintiff's] relationship to the driver may be" ( 33 N.Y.2d 397, 405, supra; emphasis added). There is no justification to retain imputed contributory negligence when the master-servant relationship is involved ( see, Bibergal v. McCormick, 101 Misc.2d 794, 798-799; cf. State of New York v. Popricki, 89 A.D.2d 391). We hold, therefore, that the negligence of an employee may not be imputed to an absent plaintiff employer so as to bar, or diminish, his recovery for property damage. An owner should be held accountable only for his own actual negligence. Accordingly, we modify the order appealed from by deleting from the second decretal paragraph the language "but may to the extent proved at trial be asserted in diminution of the plaintiff HOLT'S award of damages" and, otherwise, we affirm.