Greenberg v. City of Yonkers

• Decision Date: 08 July 1974
• Parties: George GREENBERG, etc., et al., Plaintiffs, v. CITY OF YONKERS, Defendant. The FEDERATION OF JEWISH PHILANTHROPIES, INC., and the Jewish Community Center, Respondents, v. AMERICAN CYANAMID CO., INC., Appellant (and a third-party action) (and four other titles). Action #1.
• Court: New York Supreme Court — Appellate Division

Page 453

358 N.Y.S.2d 453

45 A.D.2d 314

George GREENBERG, etc., et al., Plaintiffs, v. CITY OF YONKERS, Defendant.

The FEDERATION OF JEWISH PHILANTHROPIES, INC., and the

Jewish Community Center, Respondents, v. AMERICAN CYANAMID CO., INC., Appellant (and a third-party

action) (and four other titles).

Action #1.

Supreme Court, Appellate Division, Second Department.

July 8, 1974.

King, Edwards & O'Connor, White Plains (Benjamin H. Siff and Thomas R. Newman, New York City, of counsel), for appellant

Clark, Gagliardi & Miller, White Plains (Henry G. Miller, White Plains, and Morris Zweibel, New York City, of counsel), for respondents Federation of Jewish Philanthropies, Inc. and Yonkers Jewish Community Center.

McCarthy, Fingar, Donovan & Glatthaar, White Plains (Daniel G. Donovan, White Plains, of counsel), for respondent Rabineau.

Before HOPKINS, Acting P.J., and MARTUSCELLO, SHAPIRO, CHRIST and BENJAMIN, JJ.

SHAPIRO, Justice.

In five consolidated wrongful death and personal injury actions, defendant American Cyanamid Co., Inc. (hereafter 'Cyanamid') appeals from the portions of an amended judgment which are in favor of defendants Federation of Jewish Philanthropies of Yonkers, Inc. and Yonkers Jewish Community Center (hereafter collectively called 'Center') for $597,975 against Cyanamid. We affirm the said portions of the judgment.

THE FACTS

On December 20, 1965, a fire of incendiary origin in the building of Center caused the deaths of nine children and two women and injured several other persons who were trapped on the fourth floor of the Center's renovated building. In accordance with architectural plans drawn by defendant Rabineau, plastic panels made of Acrylite, Cyanamid's product, had been installed as decorative screening around the building's third floor balcony, which overlooked the second floor auditorium. The fire ignited the Acrylite panels and, in the conflagration, the deaths and injuries were caused.

THE TRIALS

The various issues raised by the pleadings resulted in a trifurcated trial. The first segment of the trial was on the issue of liability with respect to defendants Center, Cyanamid and Rabineau. The actions against the other named defendants were ultimately dismissed by the trial court, as were the cross claims and third-party complaints, except for those interposed in the answers served on behalf of defendants Center and Rabineau against Cyanamid. In that first portion of the trial, the Trial Justice granted Cyanamid's motion to dismiss the Negligence causes of action asserted against it by the plaintiffs, for failure of proof, but he denied Cyanamid's motion to dismiss with respect to the cause of action alleging breach of warranty. Thereafter he explained his reasons for the dismissal, saying, 'There was never submitted to this jury any issue of fact respecting the negligence of American Cyanamid' and 'I dismissed the negligence because it was not litigated.'

The first phase of the trial resulted in a verdict in favor of the plaintiffs against defendants Center and Rabineau and in favor of Cyanamid against the plaintiffs. The question of apportionment of liability between the defendants was not submitted to the jury at this phase of the trial.

The respective plaintiffs then, on the record, settled their claims against defendants Center and Rabineau and their respective carriers for a total sum of $915,500. This sum was made up of the net proceeds of the Rabineau insurance policy in the sum of $207,500 plus a further payment by Rabineau, individually, of $8,000, and $700,000 paid on behalf of Center. The settlement stipulation provided that it was entered into without prejudice on the part of the settling defendants to proceed on their cross claims against defendant Cyanamid; and Rabineau's right of indemnity against Cyanamid was transferred to Center.

The trial court then submitted to the Same jury the second phase of the case, to wit, the apportionment of responsibility between defendants The proof on the second phase included evidence which the plaintiffs had offered in rebuttal in the first phase of the case but which had then been refused admission by the trial court. The jury, having this further evidence bearing on the issue of Cyanamid's negligence, rendered a verdict finding it to have been negligent.

Center and Rabineau, as well as the cross claims interposed by these defendants against defendant Cyanamid. The jury under a Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288, charge, apportioned the responsibility of Center and Rabineau, finding Center liable for 30% And Rabineau for 70%.

On the cross claims of defendants Center and Rabineau against Cyanamid, the jury's verdict apportioned the responsibility in the following ratios: on Center's obligation, Cyanamid was held liable for 60%, and on Rabineau's portion, for 70%.

Since Cyanamid refused to concede the reasonableness of the settlements entered into between the plaintiffs and defendants Center and Rabineau, that issue was submitted to the jury in the third phase of the trial. The jury found that all of the settlements were reasonable, except the following: that Mrs. McKinley's case was reasonably worth the sum of $12,000 instead of the $22,500 for which it had been settled; that Mr. McKinley's case was reasonably worth the sum of $12,000 instead of the $20,000 for which it had been settled; and that Miss Metcalf's case was reasonably worth $500 instead of the $5,000 for which it had been settled.

Since as part of the settlement it was agreed between the settling defendants that any right of indemnity 'which may be had on behalf of Rabineau, shall be transferred and is hereby transferred to the carrier for the defendants Center and Federation', judgment was entered in favor of Center and against Cyanamid in the total sum of $597,975 in accordance with the proportions found by the jury.

THE ISSUES ON THIS APPEAL

Cyanamid raises no factual issue concerning the jury's second stage verdict that its negligence was a proximate cause of the plaintiffs' damages. ^* Instead, Cyanamid treats the first stage verdict as a prophylactic...