Bierzynsky v. New York Cent. R. Co.

• Decision Date: 25 March 1969
• Court: New York Supreme Court
• Parties: Stanley A. BIERZYNSKI, Plaintiff, v. NEW YORK CENTRAL RAILROAD COMPANY and Chesapeake & Ohio Railway Company, Defendants. NEW YORK CENTRAL RAILROAD COMPANY and Chesapeake & Ohio Railway Company, Defendants and Third-Party Plaintiffs, v. SEMET SOLVAY DIVISION ALLIED CHEMICAL CORPORATION, Third-Party Defendants.

Page 584

298 N.Y.S.2d 584

59 Misc.2d 315

Stanley A. BIERZYNSKI, Plaintiff, v. NEW YORK CENTRAL RAILROAD COMPANY and Chesapeake & Ohio

Railway Company, Defendants.

NEW YORK CENTRAL RAILROAD COMPANY and Chesapeake & Ohio

Railway Company, Defendants and Third-Party Plaintiffs, v. SEMET SOLVAY DIVISION ALLIED CHEMICAL CORPORATION,

Third-Party Defendants.

Supreme Court, Erie County.

March 25, 1969.

Charles P. McCabe, Buffalo, for plaintiff.

Moot, Sprague, Marcy, Landy & Fernbach, Buffalo, for Chesapeake & Ohio Railway Co.

Brown, Kelly, Turner, Hassett & Leach, Buffalo, for New York Central Railroad Co.

DECISION

MICHAEL CATALANO, Justice.

Plaintiff seeks disclosure pursuant to CPLR 3124 against defendant, Chesapeake and Ohio Railway Company (C and O).

August 19, 1965 plaintiff started its action to recover damages for personal injuries sustained March 17, 1964. Thereafter third-parties, New York Central Railroad Company (Central) and C and O started their third-party action against third-party defendant, Semet Solvay Division, Allied Chemical Corporation (Semet). December 29, 1966, all issues were joined.

After a trial before a court and jury, September 28, 1967, at the close of plaintiff's case the court dismissed the case against Central and dismissed the case against Solvay. October 6, 1967, plaintiff received a verdict against C and O for $25,000, judgment being entered on February 16, 1968.

February 4, 1968, C and O moved to dismiss plaintiff's complaint; March 14, 1968, an order denying it was entered. C and O appealed. Whereupon, all parties appealed to the Appellate Division.

February 20, 1969, the Appellate Division entered its order unanimously modifying the judgment to the extent of reversing so much thereof as dismissed the complaint against Central and granted plaintiff recovery against C and O; and a new trial was granted against both defendants, and as so modified, the judgment was affirmed, 31 A.D.2d 294, 297 N.Y.S.2d 457.

November 9, 1966, plaintiff's attorney served a notice for discovery and inspection pursuant to CPLR 3120 upon defendants' attorneys who refused to allow same.

On February 20, 1969, Bastow, J., speaking for the Appellate Division, said, in part pp. 296--298, 297 N.Y.S.2d pp. 460--462:

'The trial proof presented a factual issue as to whether the eyelet had broken because of a defective weld therein. Plaintiff also made a feeble attempt to establish that the eyelet was not structually suited for its intended purpose because of the position of the eyelet to the angle on the front of the car. Upon all the proof the trial court properly limited submission to the jury of the issue that the eyelet had a defective weld. * * *'

'The record, however, contains no proof of any facts from which the jury could have concluded that C & O knew, or should have known of the alleged defect. There is no evidence as to when the car was built, when it was last in the possession of C & O or when it was last inspected * * * and when no facts were proven it was error to submit to the jury the issue of whether C & O had constructive notice of the alleged defect. It follows that the finding on this issue implicit in the verdict was based on pure speculation and the verdict may not stand. * * *'

'New York Central contends * * * that the proof established an improper design of the eyelet and not a defect discoverable by reasonable care in inspection and for such it is not responsible.' The trial court '* * * then proceeded to submit the case as one of a defect in the eyelet and impliedly rejected (correctly, we believe) plaintiff's contention that it had made prima facie proof of improper design of the eyelet. * * *'

'Inasmuch as the proof established that New York Central had the car in its possession from March 7th to March 15, 1964, when it was delivered to Semet-Solvay, a factual issue was presented as to whether it could have discovered the defect by reasonable care in inspection.'

C and O opposes this motion as 'untimely' because on April 10, 1967, a note of issue and a statement of readiness were filed; the action was tried in September, 1967; on February 20, 1969, the judgment was modified by the Appellate Division ordering a new trial; on March 17, 1969, C and O filed a notice of appeal to the Court of Appeals, from that part of the judgment affirming the dismissal of the third-party action.

On March 19, 1969, Travelers filed a similar notice of appeal to the Court of Appeals.

Generally, where plaintiff places a cause upon the calendar by the filing of a note of...