Opinion
February 1, 1979
Appeal from the Supreme Court, New York County.
The infant plaintiff in this action allegedly was struck by a taxi owned by Yip Cab Corp. and driven by Felix Rosa. The infant was then hit again by a vehicle driven by Nelson Gonzalez. Yip and Rosa had failed to appear for examination before trial and were afforded a final opportunity by this court to do so (Johnson v. Gonzalez, 60 A.D.2d 513). Upon Rosa's failure once again to appear, the court directed that the answer of Rosa be stricken, the action against him severed, and that an assessment of damages be held. We would reverse the portion of the order appealed from; namely, the direction of a severance and assessment of damages. Yip Cab Corp., as the owner of the vehicle involved in the accident, would only be derivatively liable for damages, and the amount awarded against each defendant should be the same. A severance of the action against Rosa would possibly produce a contrary result and should not therefore have been granted (Kilpatrick v. Maya, 14 A.D.2d 751). In the interest of fairness and economy of time to both the parties and the court, we have directed that the trial be conducted against all the defendants simultaneously with the participation of the defendant Rosa limited to that permitted a defaulting defendant upon an inquest in a personal injury action.
Concur — Kupferman, J.P., Sandler, Lane, Markewich and Silverman, JJ.