
    Robert Kramer et al., Plaintiffs, v City of New York, Respondent, and Alberto Auto, Inc., Defendant and Third-Party Plaintiff-Appellant. Frank Bertolotti, Third-Party Defendant-Respondent.
    [826 NYS2d 213]
   Order, Supreme Court, Bronx County (Sallie Manzanet, J.), entered July 28, 2005, which denied defendant and third-party plaintiffs motion for summary judgment on its common-law indemnification claims against defendant City of New York and third-party defendant Frank Bertolotti, unanimously affirmed, without costs.

This is an action to recover damages for personal injuries arising out of a one-car collision which occurred while third-party defendant, Frank Bertolotti, a New York City police officer, was operating a motor vehicle owned by defendant and third-party plaintiff Alberto Auto, Inc. Plaintiff, Officer Robert Kramer, was sitting in the front seat with Officer Bertolotti and the officers were taking the vehicle to the precinct for “vouchering” after its operator had been arrested for driving with a suspended license.

Officer Bertolotti testified that, while taking the vehicle to the precinct, he noticed that the vehicle had been “modified.” The modifications included, inter alia, a stiffness in the steering wheel and a softness to the brake pedal, signifying that the pedal was well worn.

Defendant and third-party plaintiff Alberto Auto, Inc., as the owner of the vehicle, seeks common-law indemnification from Officer Bertolotti, as the “active tortfeasor,” and the City of New York, under the doctrine of respondeat superior, for any damages recovered from it by plaintiffs.

Because factual issues remain as to whether the subject vehicle was in fact “modified” by Alberto Auto, Inc., it is not possible to conclude at this juncture that the accident was not caused by negligence on Alberto Auto’s part or that the accident was attributable to negligence by Officer Bertolotti. Accordingly, summary judgment upon Alberto Auto’s common-law indemnification claims was properly denied (see Lewis-Moore v Cloverleaf Tower Hous. Dev. Fund Corp., 26 AD3d 292 [2006]). Concur— Andrias, J.P., Saxe, Nardelli, Sweeny and McGuire, JJ.  