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HENDRICKSON v. PHILBOR MOTORS

2011-01567.

102 A.D.3d 251 (2012)

955 N.Y.S.2d 384

2012 NY Slip Op 8489

ROSEANNE HENDRICKSON et al., Respondents, v. PHILBOR MOTORS, INC., Doing Business as HEMPSTEAD FORD, et al., Defendants, and COOPER TIRE AND RUBBER COMPANY, Appellant. (Action No. 1.) WILLIAM MALONE, Plaintiff, v. PHILBOR MOTORS, INC., Doing Business as HEMPSTEAD FORD, et al., Defendants, and COOPER TIRE AND RUBBER COMPANY, Appellant, and ROSANNE HENDRICKSON, Respondent. (Action No. 2.)

Appellate Division of the Supreme Court of New York, Second Department.

Decided December 12, 2012.

Attorney(s) appearing for the Case

Devitt Spellman Barrett, LLP, Smithtown ( Diane K. Farrell and David H. Arntsen of counsel), for appellant.

Kenneth J. Ready , Mineola ( Anthony Orcel of counsel), for respondents.

LOTT, ROMAN and COHEN, JJ., concur.

OPINION OF THE COURT

DILLON, J.P.

We address, for the first time at an appellate level, whether a defendant's failure to oppose a codefendant's motion to dismiss a complaint and cross claims pursuant to CPLR 3211 precludes that party from later asserting that its liability is limited under CPLR article 16. For the reasons set forth below, we hold that, in this instance, it does not.

On August 4, 2005,...

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