holding that plaintiff who did not hire a substitute bus but rather used one of its reserves could still recover for loss of useSummary of this case from Mahar v. U.S. Xpress Enterprises, Inc.
June 18, 1984
Appeal from the Supreme Court, Dutchess County, Vincent Gurahian, J.
George A. Roland for appellant.
Owen Grogan ( Thomas N. O'Hara of counsel), for respondent.
Plaintiff appeals from so much of a judgment of the Supreme Court, Dutchess County, as dismissed its claim for damages for loss of use of a bus placed out of service as a result of defendant's negligence. The core issue is whether damages for loss of use are interdicted because plaintiff did not hire a substitute bus, utilizing one it maintained in reserve instead. We hold that loss of use damages are recoverable in such circumstances and decline to follow two Third Department cases to the contrary ( Mountain View Coach Lines v. Gehr, 80 A.D.2d 949; Mountain View Coach Lines v. Hartnett, 99 Misc.2d 271, affd 69 A.D.2d 1020, as amd 70 A.D.2d 977, mot for lv to app den 47 N.Y.2d 710).
On October 28, 1980, a collision occurred between a bus owned by the plaintiff and a motor vehicle owned by the defendant. The parties stipulated that the defendant was negligent, that the cost of repairs was $983.23, that the damages sustained for loss of use were $3,200, and that the facts supporting the claim for loss of use were the same as those in the two Third Department cases ( Mountain View Coach Lines v. Gehr, supra; Mountain View Coach Lines v. Hartnett, supra), i.e., that no substitute was hired by the plaintiff during the period of repairs, plaintiff having substituted one of its own buses for the damaged bus. The loss of use claim was thus submitted to the Supreme Court as an issue of law, and was dismissed solely on constraint of the Third Department cases. We reverse the judgment insofar as appealed from and remit the case to the Supreme Court, Dutchess County, for entry of a judgment awarding plaintiff damages for loss of use.
At the outset, we note that if the Third Department cases were, in fact, the only New York authorities on point, the trial court followed the correct procedural course in holding those cases to be binding authority at the nisi prius level. The Appellate Division is a single State-wide court divided into departments for administrative convenience (see Waldo v Schmidt, 200 N.Y. 199, 202; Project, The Appellate Division of the Supreme Court of New York: An Empirical Study of its Powers and Functions as an Intermediate State Court, 47 Ford L Rev 929, 941) and, therefore, the doctrine of stare decisis requires trial courts in this department to follow precedents set by the Appellate Division of another department until the Court of Appeals or this court pronounces a contrary rule (see, e.g., Kirby v. Rouselle Corp., 108 Misc.2d 291, 296; Matter of Bonesteel, 38 Misc.2d 219, 222, affd 16 A.D.2d 324; 1 Carmody-Wait 2d, N Y Prac, § 2:63, p 75). This is a general principle of appellate procedure (see, e.g., Auto Equity Sales v. Superior Ct. of Santa Clara County, 57 Cal.2d 450, 455; Chapman v. Pinellas County, 423 So.2d 578, 580 [Fla App]; People v. Foote, 104 Ill. App.3d 581), necessary to maintain uniformity and consistency (see Lee v. Consolidated Edison Co., 98 Misc.2d 304, 306), and, consequently, any cases holding to the contrary (see, e.g., People v. Waterman, 122 Misc.2d 489, 495, n 2) are disapproved.
Such considerations do not pertain to this court. While we should accept the decisions of sister departments as persuasive (see, e.g., Sheridan v. Tucker, 145 App. Div. 145, 147; 1 Carmody-Wait 2d, N Y Prac, § 2:62; cf. Matter of Ruth H., 26 Cal.App.3d 77, 86), we are free to reach a contrary result (see, e.g., Matter of Johnson, 93 A.D.2d 1, 16, revd on other grounds 59 N.Y.2d 461; State v. Hayes, 333 So.2d 51, 53 [Fla App]; Glasco Elec. Co. v. Department of Revenue, 87 Ill. App.3d 1070, affd 86 Ill.2d 346). Denial of leave to appeal by the Court of Appeals is, of course, without precedential value ( Giblin v. Nassau County Med. Center, 61 N.Y.2d 67, 76, n). We find the Third Department decisions little more than a "conclusory assertion of result", in conflict with settled principles, and decline to follow them ( People v. Hobson, 39 N.Y.2d 479, 490).
It is beyond dispute that where a motor vehicle is harmed as a result of a tortious act, the plaintiff is entitled to damages for loss of use during the time reasonably required to make repairs ( Johnson v. Scholz, 276 App. Div. 163; Restatement, Torts 2d, § 928; 10 Fuchsberg, Encyclopedia N Y Law, Damages, § 875). While some early lower court cases held that recovery for loss of use was barred unless a substitute was actually hired (e.g., Murphy v. New York City Ry. Co., 58 Misc. 237), the Appellate Term, Second Department, later noted that these holdings were at variance with the rule generally prevailing in this State and elsewhere ( Dettmar v. Burns Bros., 111 Misc. 189; see, also, Recovery for Loss of Use of Motor Vehicle Damaged or Destroyed, Ann., 18 ALR3d 497, 528). Dettmar states the correct rule and is in accord with subsequent New York authority ( Nicholas v. Mellon Constr. Co., 241 App. Div. 771; Denehy v Pasarella, 230 App. Div. 707; Sellari v. Palermo, 188 Misc. 1057; Pittari v. Madison Ave. Coach Co., 188 Misc. 614; 10 Fuchsberg, op. cit., § 878).
There is no logical or practical reason why a distinction should be drawn between cases in which a substitute vehicle is actually hired and those in which the plaintiff utilizes a spare. The point is well illustrated by then Justice Cardozo's opinion in Brooklyn Eastern Term. v. United States ( 287 U.S. 170, 176-177), explaining the so-called "spare boat" doctrine applied in admiralty: "Shipowners at times maintain an extra or spare boat which is kept in reserve for the purpose of being utilized as a substitute in the contingency of damage to other vessels of the fleet. There are decisions to the effect that in such conditions the value of the use of a boat thus specially reserved may be part of the demurrage * * * If no such boat had been maintained, another might have been hired, and the hire charged as an expense. The result is all one whether the substitute is acquired before the event or after."
It is true that the Supreme Court declined to extend the "spare boat" doctrine to a boat acquired and maintained for the general uses of the business, limiting recoverable damages to "the additional wear and tear on the over-worked vessels" (Dobbs, Remedies, § 5.11, p 389). While that result has been criticized (Note, 39 Harv L Rev 760), that portion of the holding is irrelevant to the case now before us as plaintiffs utilized a spare bus and the parties have stipulated the amount of damages incurred as a result of the loss of use.
This reasoning is persuasive and is fully applicable to the case before us. The rule has the support of the Restatement of Torts, Second (§ 931, Comment c) and numerous commentators (11 Blashfield, Automobile Law Practice [rev 3d ed], § 429.2; Dobbs, Remedies, § 5.11, pp 387-389; 10 Fuchsberg, op. cit., § 878; McCormick, Damages, § 124, pp 470-476; 1 Sedgwick, Damages [9th ed], §§ 195, 243b). Moreover, it has been consistently followed in this department (see Nicholas v. Mellon Constr. Co., supra; Denehy v. Pasarella, supra; Dettmar v. Burns Bros., 111 Misc. 189, supra), in the United States Court of Appeals for the Second Circuit applying New York law ( Koninklijke Luchtvaart Maatschaapij, N.V. v. United Technologies Corp., 610 F.2d 1052), and is in accord with the overwhelming weight of authority elsewhere ( Malinson v. Black, 83 Cal.App.2d 375; Hillman v. Bray Lines, 41 Col App 493, affd ___ Col ___, 625 P.2d 364; Graf v. Rasmussen Co., 39 Or. App. 311; Holmes v. Raffo, 60 Wn.2d 421; Recovery for Loss of Use of Motor Vehicle Damaged or Destroyed, Ann., 18 ALR3d 497, § 13).
After this opinion was filed we became aware of CIT Int. v Lloyds Underwriters ( 735 F.2d 679) in which the Second Circuit retreated from this decision on constraint of Mountain View Coach Lines v. Gehr ( 80 A.D.2d 949), and Mountain View Coach Lines v. Harnett ( 99 Misc.2d 271, affd 69 A.D.2d 1020, as amd 70 A.D.2d 977, mot for lv to app den 47 N.Y.2d 710). As we have previously explained, these decisions are contrary to settled New York authority.
For these reasons, the judgment should be reversed insofar as appealed from, with costs, and the matter remitted to the Supreme Court, Dutchess County, for entry of an appropriate judgment awarding damages for loss of use in accordance with the stipulation.
MOLLEN, P.J., WEINSTEIN and RUBIN, JJ., concur.
Judgment of the Supreme Court, Dutchess County, entered July 12, 1983, reversed insofar as appealed from, on the law, with costs, and matter remitted to the Supreme Court, Dutchess County, for entry of an appropriate judgment in the principal sum of $3,200.