Bundy v. City of New York

• Decision Date: 06 July 1965
• Citation: 23 A.D.2d 392,261 N.Y.S.2d 221
• Parties: Lillian BUNDY, Plaintiff-Respondent, v. The CITY OF NEW YORK, Consolidated Edison Company of New York, Lester T. Doyle, Trustee in Reorganization of Surface Transportation Corporation of New York Defendants-Respondents, Slattery Contracting Company, Inc., Defendant-Appellant, John Doe, said name being fictitious, true name being unknown, d/b/a Lipsett, Inc., and Wellsbach Corporation, Defendants. CONSOLIDATED EDISON COMPANY OF NEW YORK, Inc., Third-Party Plaintiff-Respondent, v. W. J. FITZGERALD PAVING COMPANY, Inc., Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 221

261 N.Y.S.2d 221

23 A.D.2d 392

Lillian BUNDY, Plaintiff-Respondent, v. The CITY OF NEW YORK, Consolidated Edison Company of New

York, Lester T. Doyle, Trustee in Reorganization of Surface

Transportation Corporation of New York

Defendants-Respondents, Slattery Contracting Company, Inc.,

Defendant-Appellant, John Doe, said name being fictitious,

true name being unknown, d/b/a Lipsett, Inc., and Wellsbach

Corporation, Defendants.

CONSOLIDATED EDISON COMPANY OF NEW YORK, Inc., Third-Party Plaintiff-Respondent, v. W. J. FITZGERALD PAVING COMPANY, Inc., Third-Party

Defendant-Respondent.

Supreme Court, Appellate Division, First Department.

July 6, 1965.

Harry H. Lipsig, New York City, for plaintiff-respondent.

Joseph D. Ahearn, New York City, of counsel (John M. Keegan, New York City, attorney) for defendant and third-party plaintiff-respondent Consolidated Edison Co. of New York, Inc.

Stuart Riedel, New York City, for defendant-respondent Lester T. Doyle.

Russell B. Greaves, New York City, of counsel (John J. Bradbury, New York City, on the brief; George J. Conway, New York City, attorney) for appellant Slattery Contracting Co., Inc.

David T. Walsh, New York City, for third-party defendant-respondent W. J. Fitzgerald Paving Co., Inc.

Before RABIN, J. P., and McNALLY, EAGER, STEUER and STALEY, JJ.

STEUER, Justice.

At the trial of this action all parties stipulated that plaintiff's injuries were reasonably compensable at $15,000. The accident occurred when plaintiff got off a bus operated by Surface Transportation Corporation (herein Surface, though the defendant is Lester T. Doyle, its trustee in reorganization). On alighting she was caused to fall by an obstruction in the roadway. The obstruction was due to an excavation made by defendant Consolidated Edison Company (Con Ed) pursuant to a permit from the defendant City of New York. The actual work on the excavation was done by defendant Slattery Contracting Company (Slattery). Plaintiff sued all four of these parties. Defendant city cross-complained against Con Ed. Con Ed cross-complained against Slattery. Con Ed also brought a third-party action against W. J. Fitzgerald Paving Company (Fitzgerald) which company had undertaken to pave the place but had failed to do so.

Plaintiff recovered against the four defendants she sued. The city recovered on its cross-claim against Con ed. Con Ed recovered on its cross-claim against Slattery, and also on its third-party complaint against Fitzgerald. Judgment was entered against each of the four defendants for one-fourth of $15,000, or $3,750, with one quarter of the interest and costs. There is no dispute about the items of interest and costs and the amounts will hereinafter be referred to without reference to those items. Appropriate entries were made on the cross-complaints. On appeal all of these dispositions were affirmed except that the judgment was corrected to provide that plaintiff's recovery was in the full amount of $15,000 against all defendants sued rather than one-fourth against each (18 A.D.2d 799, 237 N.Y.S.2d 138, affd. without opn. 13 N.Y.2d 1181, 248 N.Y.S.2d 220, 197 N.E.2d 618).

Surface promptly paid one-fourth ($3,750) to plaintiff. None of the other defendants paid anything due to a dispute as to what each was liable for. Plaintiff issued an execution against Slattery and upon levy Slattery paid the balance of the judgment ($11,250, or 75%). Slattery then moved against Surface, Con Ed and Fitzgerald for leave to enter judgments pursuant to CPLR 1401. Special Term denied the application.

As to Con Ed, Slattery concedes that it is not entitled to enter any judgment. However, it does claim that Con Ed is a proper, and perhaps a necessary, party for reasons to be discussed shortly.

As to Fitzgerald, Slattery contends that as Con Ed has recovered over against both Fitzgerald and itself, Fitzgerald should contribute one-half of Con Ed's liability. As will be seen, this amount will depend on what portion of the judgment Con Ed is responsible for, and would represent the total of Con Ed's and the city's liability. If all defendants sued by the plaintiff are chargeable in the same amount, this would be 50%, or $7,500. If Surface's proper proportion (as discussed below) is 50% rather than 25%, this would amount to one-third, or $5,000. Slattery claims it is entitled to enter judgment against Fitzgerald for one-half of whichever of these sums is found applicable.

However, we believe that Slattery has no right to contribution from Fitzgerald for any amount. CPLR 1401 provides that 'Where a money judgment has been recovered jointly against defendants in an action for a personal injury * * *, each defendant who has paid more than his pro rata share shall be entitled to contribution from the other defendants with respect to the excess paid over and above his pro rata share; * * *.' The recovery referred to is the recovery by the plaintiff. 'The two or more defendants must be parties to the action at the suit of the plaintiff, and a money judgment must have been recovered jointly against them' (Fox v. Western New York Motor Lines, Inc., 257 N.Y. 305, 308, 178 N.E. 289, 78 A.L.R. 578). It was said of the predecessor section (CPA § 211-a), which provides for the identical remedy: 'The Civil Practice Act (§ 211-a), in furnishing to one joint tort-feasor a remedy for the recovery of contribution from the other, expressly confines the remedy to cases where a money judgment has proceeded against both' (Price v. Ryan, 255 N.Y. 16, 18, 173 N.E. 907, 908). Recognizing the force of this contention, Slattery contends that it is not proceeding directly against Fitzgerald, but against it as an indemnitor of Con Ed. And it is for this reason that it joined Con Ed in its application for relief. The difficulty is not overcome. As Slattery is not entitled to contribution fron Con Ed, it would not be entitled to contribution from one whose sole duty is to the defendant. We consequently agree that as to Fitzgerald the motion was decided correctly.

The basis of the claim against Surface is that where the damage to the plaintiff arises from two entirely distinct acts or conditions, the perpetrators of each act as among themselves are each responsible for half the damage. And in this connection if the performance of one act or the creation of one condition is the result of the participation of two or more defendants, they are only liable for their pro rata share of the half.

Clearly a purely arithmetical calculation of dividing the total of recovery by the number of defendants found liable is not the proper method for determining the pro rata share of each defendant (Wold v. Grozalsky, 277 N.Y. 364, 366-367, 14 N.E.2d 437, 438-439, 122 A.L.R. 518). While Surface does not contest this, it claims that the instances in which contribution is to be made on a basis other than equal payments by each defendant should be confined to the cases where the liability of one defendant is derivative from his relationship with another--as where, in a two car collision, the defendants are the driver of one car and the owner and driver of the other. Surface points out, correctly, that this was the situation in the case where the distinction was originally made (Martindale v. Griffin, 233 App.Div. 510, 253 N.Y.S.2d 578, affd. 259 N.Y. 530, 182 N.E. 167). However, the rule was not stated to be confined to such situations. Rather, it was the nature of the association of the defendants in the negligent acts that governs. And it was applied where the liability was not derivative (Lyons v. Provencial, 20 A.D.2d 875, 248 N.Y.S.2d 663). Lastly, Surface contends that the liability of the other defendants stems from different theories--the city from its duty to maintain the streets, Con Ed from the non-delegable duty of a licensee, and Slattery for the negligent performance of the excavation. The different theories are not significant. There was only one condition...