D'Ambrosio v. City of New York

• Decision Date: 06 April 1982
• Citation: 55 N.Y.2d 454,435 N.E.2d 366,450 N.Y.S.2d 149
• Parties: , 435 N.E.2d 366 Diane M. D'AMBROSIO, an Infant, by Her Mother and Natural Guardian, Rose D'Ambrosio, Appellant, et al., Plaintiff, v. CITY OF NEW YORK, Defendant and Third-Party Plaintiff-Respondent. Harriet S. Hopp, Third-Party Defendant-Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 149

450 N.Y.S.2d 149

55 N.Y.2d 454, 435 N.E.2d 366

Diane M. D'AMBROSIO, an Infant, by Her Mother and Natural Guardian, Rose D'Ambrosio, Appellant, et al., Plaintiff, v. CITY OF NEW YORK, Defendant and Third-Party Plaintiff-Respondent Harriet S. Hopp, Third-Party Defendant-Appellant.

Court of Appeals of New York.

April 6, 1982.

Brian J. Shoot, New York City, for appellant.

Anthony J. McNulty, Joseph Messina and William F. McNulty, New York City, for third-party defendant-appellant.

Frederick A. O. Schwarz, Jr., Corp. Counsel, New York City (Ronald E. Sternberg and Leonard Koerner, Asst. Corp. Counsels, New York City, of counsel), for City of New York.

OPINION OF THE COURT

GABRIELLI, Judge.

The issue on this appeal is the effect of our decision in Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288, on the so-called "special benefit" rule. This rule allows a municipality, charged with the duty of maintaining its sidewalks in a reasonably safe condition, to shift liability to the abutting landowner, where the cause of plaintiff's injuries is the failure of the landowner to reasonably maintain a sidewalk installation constructed for the special use and benefit of his property. We hold today that the "special benefit" rule is no longer available to shift entirely such liability to the landowner; rather, the liability is to be apportioned between the municipality and the landowner, based upon their respective degrees of fault.

Plaintiff sustained injuries when she was caused to trip on a metal disk embedded in the sidewalk. The disk, raised about one inch above the sidewalk, covered the housing for a shut-off valve in the service pipe which brought water to the abutting premises from the water main running under the street. The curb valve was installed by a former owner of the abutting premises, presumably for the benefit of his property.

Plaintiff brought suit against the City of New York (City), alleging that it had breached its duty to maintain the public sidewalk on which she fell in a reasonably safe condition, by suffering a dangerous and defective condition to exist, of which it had knowledge and notice. Prior to trial, plaintiff entered into a settlement agreement with the abutting landowner, by which plaintiff settled all "past, present and future claims" against the landowner in return for the sum of $22,500.

Following service of the complaint against the City, the City served a third-party summons and complaint upon the landowner, Harriet S. Hopp. This complaint sought recovery over against Hopp for any amount that might be recovered by the plaintiff against the City, on the ground that it was Hopp's negligent maintenance of the water box, installed for the special use and benefit of Hopp's premises, that caused plaintiff's injuries.

The testimony at trial indicated that plaintiff tripped over the raised water disk, which she could not see, as she was attempting to avoid cracks in the sidewalk a short distance ahead. The sidewalk immediately surrounding the condition was described as cracked and sloping downward toward the disk. Expert testimony was adduced to the effect that the one-inch elevation of the metal disk was improper, and that curb valves should be maintained flush with the surrounding sidewalk. Plaintiff testified that, about one year before her accident, she had seen a woman fall in the same area, and that a policeman and ambulance arrived at the scene to assist the injured woman, who stated that she had tripped over the water cap.

The case was submitted to the jury in two stages. With respect to the liability determination, the jury found that both the City and Hopp were negligent in allowing the sidewalk condition to go unrepaired, resulting in plaintiff's injuries. The issues of the amount of plaintiff's damages and of the relative fault of the City were then submitted to the jury. Plaintiff was awarded $100,000 in damages; the City was found 65% responsible. The City's motion for judgment over against Hopp was denied without comment by the court. Judgment was entered for plaintiff against the City in the amount of $65,000 (reduced by the proportionate amount of Hopp's fault, by reason of plaintiff's having settled her claim against Hopp [see General Obligations Law, § 15-108]).

The City appealed to Appellate Term, 102 Misc.2d 529, 425 N.Y.S.2d 916, which modified the judgment by awarding the City full indemnification on its third-party complaint against Hopp, based on the so-called "special benefit" rule. Under this rule, the municipality that has been cast in damages for its failure to maintain the sidewalk in a reasonable condition may, notwithstanding its own negligence, obtain judgment over against the property owner for whose benefit a sidewalk appurtenance was installed, where it is the defective condition of the appurtenance that caused the injury.

An appeal by Hopp resulted in an affirmance by the Appellate Division, 79 A.D.2d 965, 438 N.Y.S.2d 224, on the reasoning of Appellate Term. The Appellate Division granted plaintiff and Hopp leave to appeal to this court. We now reverse.

A threshold issue concerns whether an appeal properly lies from the order of the Appellate Division by the plaintiff. The Appellate Division order, affirming the order of Appellate Term, resolves issues of liability only as between the municipality and the abutting landowner. It has no direct effect on the right of plaintiff to recover full judgment. Plaintiff is not an "aggrieved party" within the meaning of CPLR 5511 by reason of the resolution of the respective liability of the third-party plaintiff and defendant. Rather, plaintiff's rights are affected solely by virtue of a settlement agreement between her and the third-party defendant, the validity and interpretation of which have not been determined in this litigation. The appeal of the plaintiff, therefore, should be dismissed.

Turning to the merits of the appeal, we are asked to determine the effect of the rule announced in Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288, supra, allowing joint, actively negligent tort-feasors to seek contribution among themselves in proportion to their respective degrees of fault, upon the "special benefit" rule, which allows a municipality to shift liability for damages to one harmed by a defective condition in the sidewalk to the owner of the abutting premises, under some circumstances.

It was once the rule in this State that contribution among joint tort-feasors could not be had. The reason for this common-law rule barring apportionment was the belief that the courts should not participate in adjusting the relative rights of wrongdoers (Dole v. Dow Chem. Co., 30 N.Y.2d 143, 147, 331 N.Y.S.2d 382, 282 N.E.2d 288, supra ). This rule was abrogated partially in 1928, with the addition of section 211-a to the Civil Practice Act. Under that statute, if judgment were recovered by a plaintiff against more than one joint tort-feasor, one tort-feasor who had been required to pay more than his pro rata share to the plaintiff could recover the excess from the other adjudicated tort-feasors. The paying tort-feasor was expressly given the right to proceed against the others in a separate action. The statute left the decision of which defendants could be adjudicated joint tort-feasors entirely in the hands of the plaintiff, however, and a named defendant could not bring others into the suit on the basis of his belief that they should contribute to any judgment awarded to plaintiff (Fox v. Western N. Y. Motor Lines, 257 N.Y. 305, 178 N.E. 289).

Notwithstanding the rigid rules regarding contribution rights among joint tort-feasors, a common-law right of indemnification existed, allowing one who was compelled to pay for the wrong of another to recover from the wrongdoer the damages paid to the injured party (Westchester Light. Co. v. Westchester County Small Estates Corp., 278 N.Y. 175, 15 N.E.2d 567; Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola, 134 N.Y. 461, 31 N.E. 987). Thus, for example, where the master had been held liable for the tort of his servant, on a theory of respondeat superior, but the master was himself free from wrong, the master was entitled to indemnification from his servant (Opper v. Tripp Lake Estates, 274 App.Div. 422, 84 N.Y.S.2d 461, affd. 300 N.Y. 572, 89 N.E.2d 527). In the classic indemnification case, the one entitled to indemnity from another had committed no wrong, but by virtue of some relationship with the tort-feasor or obligation imposed by law, was nevertheless held liable to the injured party.

Over the years, the doctrine of "implied indemnification" was extended in response to the potentially harsh results of the inflexible rules barring contribution among joint tort-feasors. Thus, one who was cast in damages for negligence could, if his negligence were merely "passive", nevertheless shift his liability to the tort-feasor whose negligence was considered "active". The "actively negligent tort-feasor is considered the primary or principal wrongdoer and is held responsible for his negligent act not only to the person directly injured thereby, but also to any other person indirectly harmed by being cast in damages by operation of law for the wrongful act" (McFall v. Compagnie Maritime Belge S. A., 304 N.Y. 314, 328, 107 N.E.2d 463; see, also, Tipaldi v. Riverside Mem. Chapel, 298 N.Y. 686, 82 N.E.2d 585, affg. 273 App.Div. 414, 78 N.Y.S.2d 12). One who was himself actively negligent could not, of course, receive the benefit of this doctrine; it was available only to shift full liability from the secondary to the primary wrongdoer, and its availability depended upon the level of culpability of the one seeking indemnity (Bush Term. Bldgs. v. Luckenbach S. S. Co., 9 N.Y.2d 426, 214 N.Y.S.2d 428, 174 N.E.2d 516; Jackson v. Associated Dry Goods Corp., 13 N.Y.2d 112, 242 N.Y.S.2d 210, 192 N.E.2d 167). The...