Cimino v. New York City
| Citation | 54 A.D.2d 843,388 N.Y.S.2d 276 |
| Parties | Dorothy C. CIMINO, as Administratrix of the Goods, Chattels and Credits of Jacquino Cimino, Plaintiff-Appellant, v. The CITY OF NEW YORK, Defendant-Appellant, and Peter Gianfrancesco, Defendant-Respondent. The CITY OF NEW YORK, Third-Party Plaintiff-Appellant, v. JOSEPH CORY DELIVERY SERVICES, INC., Third-Party Defendant-Appellant, and Joseph CAPPIELLO, Third-Party Defendant-Respondent. Peter GIANFRANCESCO, Fourth-Party Plaintiff-Respondent, v. JOSEPH CORY DELIVERY SERVICES, INC., Fourth-Party Defendant-Appellant, and Joseph CAPPIELLO, Fourth-Party Defendant-Respondent. |
| Decision Date | 09 November 1976 |
| Court | New York Supreme Court Appellate Division |
C. Tauber, Freeport, for plaintiff-appellant.
W. F. Larkin, New York City, third party defendant-appellant.
W. F. Larkin, New York City, fourth party defendant-appellant.
Before MARKEWICH, J.P., and MURPHY, BIRNS, NUNEZ and LYNCH, JJ.
Judgment, Supreme Court, Bronx County, entered April 5, 1974, after jury trial, and order of the same court, entered October 9, 1974, modifying that judgment, unanimously reversed, on the law and in the interest of justice and vacated; complaint against defendant-appellant City of New York dismissed, and third-party complaint of third-party plaintiff-appellant City of New York dismissed as academic; case of plaintiff-respondent-appellant Dorothy C. Cimino as Administratrix of the goods, chattels and credits of Jacquino Cimino against defendant Peter Gianfrancesco, and case of fourth-party plaintiff Peter Gianfrancesco against fourth-party defendant-appellant Joseph Cory Delivery Services, Inc. and fourth-party defendant Joseph Cappiello severed and remanded to Supreme Court, Bronx County, for new trial; and cross-appeal of plaintiff-respondent-appellant Dorothy C. Cimino, as Administratrix, etc., dismissed as academic, all without costs and without disbursements by any party against any other.
On February 6, 1968, at the uncontrolled intersection of Steward and Olmstead Avenues in Bronx County, plaintiff-appellant's decedent was killed in a collision between the truck of his employer, third-and fourth-party defendant-appellant Joseph Cory Delivery Services, Inc. and the passenger car owned and driven by defendant and fourth-party plaintiff Peter Gianfrancesco. The decedent Cimino was a helper on Cory's truck, being driven by his co-employee, third- and fourth-party defendant Joseph Cappiello. Gianfrancesco was driving north on Olmstead and, while approaching the intersection, had looked to his left across a vacant southwest corner lot; seeing no approaching traffic he continued without looking again in that direction. Cappiello had just left the south curb of Steward about 150 feet from the corner and was proceeding easterly, when, as he said, he saw the Gianfrancesco car about 15 feet away, heading toward him. He attempted to avoid collision by swerving left, but was struck on his right; Cimino was thrown from the truck which fell on him, causing his death. In recent months, traffic had become unusually heavy at that intersection because of diversion thereto from the site of the Bruckner Expressway construction. Police authorities had requested installation of a traffic light there: it had been ordered but not yet installed. Absence of this control provides the key issue before us.
Suit for Cimino's wrongful death was brought against Gianfrancesco based upon his allegedly negligent driving. The main thrust of plaintiff's suit, however, was directed against the City for alleged negligence in failure to install the traffic light. Obviously Cory could not be sued directly because of the bar of the Workmen's Compensation Law, but, after a verdict jointly against both the City and Gianfrancesco apportioning liability half-and-half between them, the jury returned a verdict in a third-party suit by the City against Cory which assessed...
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