DePaolis v. City of New York
| Decision Date | 26 September 1980 |
| Citation | 432 N.Y.S.2d 322,105 Misc.2d 307 |
| Parties | Edward DePAOLIS, Plaintiff, v. The CITY OF NEW YORK, Joseph Schirripa, Rocco Schirripa and Josephine Prestianni, Defendants. |
| Court | New York Supreme Court |
Reisler & Silverstein, by Walter Silverstein, New York City, for plaintiff.
Allen G. Schwartz, Corp. Counsel, New York City, by Shearman & Sterling, Dennis P. Orr, New York City, for defendant City of New York.
Held, Spector & Sternberg, New York City, by Jerome L. Steinberg, Brooklyn, for defendants Schirripa.
John J. Brandt, by John J. Wrenn, of counsel, Sarah Sholes, for defendant Prestianni.
The question presented is whether a "Dole " cross-claim for contribution * must be dismissed because of an admission in defense counsel's opening statement exculpating a codefendant.
Plaintiff Edward DePaolis was a passenger in a motor vehicle owned and operated by defendants Rocco and Joseph Schirripa when it collided with a motor vehicle operated by defendant Josephine Prestianni at the intersection of Royce Street and Avenue X in the Borough of Brooklyn, New York. Plaintiff commenced this action for personal injuries predicated upon the negligence of the foregoing defendants in the operation of their automobiles, and that of the City of New York for its failure to maintain a stop sign on Avenue X in an unobstructed condition, such as would have prevented defendant Prestianni from unlawfully entering the intersection. Each of the defendants cross-claimed against the others for a "Dole " apportionment of liability. The trial was bifurcated with the issues of liability and relative fault of the defendants to be submitted to the jury in the first stage, and the quantum of damages, if necessary, in the second stage.
Notwithstanding the City's cross-claims, its counsel stated in his opening remarks to the jury that the sole proximate cause of the accident was defendant Prestianni's negligence in failing to stop at the intersection and yield the right-of-way. Counsel for the Schirripas thereupon moved to dismiss the City's cross-claim against them.
The City's opposition to the motion focuses on two points: (1) that it made no "admission of fact," and (2) that counsel's statement constituted a trial tactic which is not binding upon the prosecution of its cross-claims. The Schirripas contend that the City is a plaintiff with regard to the "Dole " causes of action and that the City's position regarding proximate cause is inimical to the prosecution of a cross-claim against them.
The criteria applicable to dismissals based upon admissions contained in opening statements were succinctly stated in Hoffman House, New York v. Foote, 172 N.Y. 348, 65 N.E. 169, wherein the Court indicated at pages 350-351, 65 N.E. at page 169, that dismissal would be warranted if it could be demonstrated either:
"... (1) that the complaint does not state a cause of action or (2) that a cause of action well stated is conclusively defeated by something interposed by way of defense and clearly admitted as a fact, or (3) that the learned counsel for the plaintiff, in his opening address, by some admission or statement of facts so completely ruined his case that the court was justified in granting a nonsuit ...."
While the motion to dismiss after counsel's opening is not specifically mentioned in the Civil Practice Law and Rules, it is contemplated by section 4401 thereof. (See 4 Weinstein-Korn-Miller, N.Y. Civ.Prac., par. 4016.14). The practice has endured despite frequent declarations of its extraordinary character and the hazards attending its application. (See Stines v. Hertz Corp., 45 A.D.2d 751, 356 N.Y.S.2d 649; Schaefer v. Karl, 43 A.D.2d 747, 350 N.Y.S.2d 728; Scott v. Knapp, 38 A.D.2d 761, 329 N.Y.S.2d 1001; Rivera v. Board of Educ. of City of N.Y., 11 A.D.2d 7, 201 N.Y.S.2d 372; French v. Central New York Power Corp., 275 App.Div. 238, 89 N.Y.S.2d 543.) While the mere omission to state a prima facie case in an opening statement is not grounds for dismissal, a statement voluntarily and knowingly made which negates or precludes recovery as a matter of law furnishes an adequate basis for such relief. (Gilbert v. Rothschild, 280 N.Y. 66, 19 N.E.2d 785; Payton v. Brooklyn Hospital, 21 A.D.2d 898, 252 N.Y.S.2d 419; Goodman v. Brooklyn Hebrew Orphan Asylum, 178 App.Div. 682, 165 N.Y.S. 949.)
The distinction sought to be drawn by the City between admissions of fact and law is not theoretically sound, nor is it justified by the authorities. If the plaintiff in a negligence action admits either that the defendant was not negligent or was not a proximate cause of injury, then dismissal is warranted. Regardless of how one might characterize such a statement, i. e., as an admission of fact, law or a mixed question of fact and law, to proceed with the trial would be a futile act, since a necessary element of plaintiff's cause of action had been effectively withdrawn. By analogy, in Hoffman House, New York v. Foote, supra, 172 N.Y. pp. 353-354, 65 N.E. p. 170 the Court stated "(i)f the plaintiff's counsel, after stating a good cause of action in his complaint, has admitted upon the record that the defendant has been released and...
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