Fuscaldo v Jaiman

[*1] Fuscaldo v Jaiman 2006 NY Slip Op 51317(U) [12 Misc 3d 1179(A)] Decided on July 7, 2006 Supreme Court, Richmond County Minardo, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 7, 2006
Supreme Court, Richmond County

Lauren Fuscaldo, Plaintiff,

against

James Jaiman,ADOLPH JAIMAN, GRACE JAIMAN, JOSEPH CORSO, and MICHAEL CORSO, Defendant(s).



12295/04

Philip G. Minardo, J.

Defendants Joseph and Michael Corso move for summary judgement dismissing plaintiff's complaint and any cross claims.

Plaintiff was a passenger in Defendant James Jaiman's motor vehicle who was allegedly in the mist of an illegal street race with Defendant Michael Corso on Hylan Boulevard, Staten Island, NY According to the deposition testimony of Defendant Jaiman, he admits he was engaged in a street race with Co-defendant Corso. This is confirmed by the testimony of the plaintiff and a nonparty eye witness Joseph Scala. It is the Plaintiff and Defendant Jaiman's contention that the nonverbal communication of revving the engine at numerous traffic lights, the screeching of tires, engine noises ("spooling up the turbo blow off valves") of two high performance motor vehicles implied Defendant Corso wanted to race and that he challenged Defendant Jaiman to engage in a drag race. Non party Joseph Scala, an eye witness to this accident gave a detailed and vivid description of the course of events leading up to the horrific crash.

According to Mr. Scala, he was driving behind the parties observing both drivers revving their engines and peeling out at numerous traffic lights. Just before the accident both drivers were approximately abreast of one another when Defendant Jaiman's motor vehicle fish-tailed, almost hitting Codefendant Corso, and then crashed into the woods. Scala estimated that the vehicles [*2]were traveling at approximately one hundred miles per hour [FN1]. It is conceded by the parties that

the Defendants Corso and Jaiman's motor vehicle never made contact.

"Concerted action liability rest upon the principle that all those who in pursuance of a common plan or design to commit a tortious act, actively take part in it, or further it by cooperation or request, or who lend aid or encouragement to the wrong doer,... are equally liable with him". (Shea v. Kelly, 121 AD2d 620 (2nd Dept. 1986) citing Herman v. Westgate, 94 AD2d 938, quoting Bichler v. Lilly & Co., 55 Ny2d 571, 580-581, quoting from Prosser, Torts §46 at 292 [4th Ed.]). The theory being is that "participation in a concerted activity is equivalent to participation in the accident resulting in the injury" (Id)

Accordingly, under the facts presented, this court finds there is sufficient evidence to present a question of fact as to whether the Defendant drivers implicitly agreed to engage in a particular course of conduct which created an unreasonable danger to other users of the highway and was a significant factor in causing the accident and Plantiff's injuries (Polocastro v. Savarese, 171 AD2d 849, 853 (2nd Dept. 1991))

Accordingly, the Defendants Joseph and Michael Corso's motion for summary judgment dismissing the complaint is denied in its entirety.

E N T E R,

______________________________

J.S.C. Footnotes

Footnote 1: This court takes Judicial notice that Hylan Boulevard is a residential/commercial roadway with a top speed limit of 35 mph.