Arthur Venneri Co. v. Central Heating & Plumbing Co.

• Decision Date: 28 June 1963
• Docket Number: No. 1,No. 2,1,2
• Court: New York Supreme Court
• Parties: ARTHUR VENNERI COMPANY, Plaintiff, v. CENTRAL HEATING & PLUMBING COMPANY and Thomas C. Vincent, Incorporated, Defendants. Action THOMAS C. VINCENT INC., a Connecticut Corporation, authorized to do business in the State of New York, Plaintiff, v. CENTRAL HEATING & PLUMBING CO., Defendant. Action

Page 812

242 N.Y.S.2d 812

40 Misc.2d 125

ARTHUR VENNERI COMPANY, Plaintiff, v. CENTRAL HEATING & PLUMBING COMPANY and Thomas C. Vincent, Incorporated, Defendants.

Action No. 1.

THOMAS C. VINCENT INC., a Connecticut Corporation,

authorized to do business in the State of New

York, Plaintiff, v. CENTRAL HEATING & PLUMBING CO., Defendant.

Action No. 2.

Supreme Court, Special and Trial Term, New York County, Part I.

June 28, 1963.

Max E. Greenberg, New York City, for Arthur Venneri Co., plaintiff in Action No. 1.

Raymond J. MacDonnell, New York City, for Central Heating & Plumbing Co., defendant in Action No. 1.

John W. Olmstead, New York City, for Thomas C. Vincent, Inc., defendant in Action No. 1.

Gillespie & O'Connor, New York City, for Thomas C. Vincent Inc., plaintiff in Action No. 2.

John B. Gilleran, White Plains, for Central Heating & Plumbing Co., defendant in Action No. 2.

HARRY B. FRANK, Justice.

Both defendants in Action Number 1 having, each independently of the other, consummated separate settlements with the plaintiff in that action, the instant motion for a severance and other related relief brings into question the extent to which the remainder of this consolidated action must be held to be affected by the dispositive consequences of the settlements.

The aforementioned codefendants in Action No. 1, Thomas C. Vincent Inc. and Central Heating & Plumbing Co., also appear as adversary parties in Action Number 2; and said Vincent, the plaintiff in the latter action, is the moving party herein. It contends that the settlements in Action Number 1 covered the 'identical negligence cause of action claimed by Central Heating against Vincent' in the second counterclaim in Action Number 2, and that by reason of this duplication the operative effects of the settlements must be extended to the cause of action pleaded in such counterclaim so as to constitute a final adjustment and compromise thereof precluding its severance and restoration to the calendar.

The essential weakness in the movant's position is the assumption that the causes of action in both cases are identical. An examination of the specific liabilities involved indicates otherwise.

These companion actions stem from the involvement of all the parties in a particular construction project. The general contractor of the project, Arthur Venneri Company, engaged Central, under a written subcontract agreement, to perform a portion of the job, and Central in turn further sublet parts of the work to Vincent. Venneri sued both Central and Vincent, in Action Number 1, for the recovery of property damages which were sustained in the course of the performance of the subcontracted work. The action was predicated upon the provisions of the subcontract agreement between the plaintiff (Venneri) and Central, and upon general allegations of negligence against both Central and Vincent in that they 'caused or permitted' the wrongful act and resultant damage.

Under the allegations of the complaint in Action Number 1, while both defendants might be held liable to Venneri, it would be possible, in such instance, for the liability of each defendant to be based upon a distinctly different type of misconduct. As an independent contractor having no contractual relations with Venneri, Vincent could be held responsible only if some acts of negligence on its part caused, or contributed to, the alleged damage, and consequently Vincent's liability to Venneri, if at all, would be as an active tortfeasor. (See Garden Party House, Inc. v. Sheehan Equipment Co., Inc., 10 A.D.2d 902, 200 N.Y.S.2d 148; 2 A Warren's Negligence 216-217, Contractors § 1; cf. Brooklyn Yarn Co. v. Krauss, 15 Misc.2d 727, 182 N.Y.S.2d 882.) The possible liability of the codefendant Central, on the other hand, would not similarly be limited to active negligence only, since it had assumed certain contractual obligations to Venneri relative to the performance of the subcontracted work. By virtue of these contractual undertakings, Central could be rendered liable, even though it was itself without actual fault, for damages caused solely by Vincent's negligence, and under that vantage of the complaint Central's liability to Venneri would be founded upon passive negligence. (See Hewlett Arcade Inc. v. Five Towns Refrigeration Corp., 3 A.D.2d 728, 159 N.Y.S.2d 771; May v. 11 1/2 East 49th Street Co., 269 App.Div. 180, 54 N.Y.S.2d 860.)

Where the respective culpabilities of tortfeasors to a third person assumes this pattern, an additional issue of liability may come into play, that of the wrongdoers as to each other in distinction to their legal liabilities to the person directly injured. Such further liability is based upon an implied contract of indemnity which arises in favor of a passive tortfeasor who has been caused exposure to liability and the sufferance of damages by reason of the active misconduct of another. The one actively negligent is, in such case, considered the primary or principal wrongdoer and, in addition to his responsibility to the party directly harmed, he is also held to stand in the relation of an indemnitor to the one whom he has caused to be cast in damages by operation of law for his wrongdoing. (Bush Term. Bldgs. v. Luckenbach S. S. Co., 9 N.Y.2d 426, 214 N.Y.S.2d 428, 174 N.E.2d 516; Putvin v. Buffalo Elec. Co., 5 N.Y.2d 447, 186 N.Y.S.2d 15, 158 N.E.2d 691; Tipaldi v. Riverside Memorial Chapel, 273 App.Div. 414, 78 N.Y.S.2d 12, affd. 298 N.Y. 686, 82 N.E.2d 585.) The cause of action for indemnity is not the same as the directly injured third party's action; it is not brought in any representative capacity on behalf of such party nor does it seek to recover that party's damages; it is instead the assertion by the passive tortfeasor of his own right of recovery of the breach of an alleged independent duty or obligation owed to him by the active wrong-doer as indemnitor. (See Putvin v. Buffalo Elec. Co., supra; McFall v. Compagnie Maritime Belge, 304 N.Y. 314, 107 N.E.2d 463; Stafford v. Sibley, Lindsay & Curr Co., 280 App.Div. 495, 114 N.Y.S.2d 177.)

The right to indemnity may be asserted by way of a cross claim where, as in Action Number 1 herein, the tortfeasors are sued severally by the injured party, or by an impleader of the alleged indemnitor where he is not sued as a party in the original action. (Civil Practice Act, §§ 264 and 193-a; See Galka v. City of Albany, 285 App.Div. 27, 135 N.Y.S.2d 249.) Such relief was, in fact, sought by Central in Action Number 1 wherein it cross claimed against Vincent for judgment over in the event of a recovery by the plaintiff Venneri. Indemnification may also be sought, however, separate and apart from the litigation instituted by the injured third party. To that end, the passive tortfeasor may sue the active wrongdoer directly in an independent action predicated upon the indemnity claim, or he may seek to enforce...