Detko v. McDonald's Restaurants of New York, Inc.

• Decision Date: 01 November 1993
• Parties: Michael DETKO, etc., et al., Plaintiffs-Respondents, v. McDONALD'S RESTAURANTS OF NEW YORK, INC., et al., Defendants-Appellants, Carlos Negron, et al., Defendants-Respondents; James A. Jennings and Company, Third-Party Defendant.
• Court: New York Supreme Court — Appellate Division

Page 496

603 N.Y.S.2d 496

198 A.D.2d 208

Michael DETKO, etc., et al., Plaintiffs-Respondents, v. McDONALD'S RESTAURANTS OF NEW YORK, INC., et al Defendants-Appellants Carlos Negron, et al., Defendants-Respondents James A. Jennings and Company, Third-Party Defendant.

Supreme Court, Appellate Division Second Department.

Nov. 1, 1993.

Bivona & Cohen, P.C., New York City (Harold J. Derschowitz, of counsel), for defendants-appellants.

G. Ronald Hoffman, Melville, for plaintiffs-respondents.

J. Russell Clune, P.C., Harrison (Kevin Thomas Conklin, of counsel), for defendant-respondent Emmanuel Landsman.

Wilson, Bave, Conboy & Bave, P.C., White Plains (Kevin D. O'Dell, of counsel), for defendant-respondent Yonkers Community Development Agency.

Clark, Gagliardi & Miller, P.C., White Plains (Lynn A. Pucino, of counsel), for defendant-respondent Lincoln Contracting corp.

Weiner & Catlett, Nanuet (Brian P. Coffey and Renaud T. Bleecker, on the brief), for third-party defendant.

Before BRACKEN, J.P., and SULLIVAN, EIBER and PIZZUTO, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, etc., the defendants McDonald's Restaurants of New York, Inc., Golden Arch Realty Corporation, Franchise Realty Interstate Corporation, McDonald's Corporation, and Amsam Foods Corporation, appeal from so much of an order of the Supreme Court, Westchester County (Ruskin, J.), entered July 9, 1991, as denied their motion for summary judgment dismissing the complaint and cross claims insofar as asserted against them.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs payable by the respondents appearing separately and filing separate briefs, the motion is granted, the complaint and cross claims are dismissed insofar as asserted against the appellants, and the action against the remaining defendants is severed.

On August 26, 1979, the plaintiffs were dining inside the McDonald's Restaurant on South Broadway and Vark Street in Yonkers when a car driven by the defendant Carlos Negron hit the wall of the restaurant, causing it to collapse onto the plaintiffs. Negron had been traveling in the wrong direction down Vark Street, a one-way thoroughfare. In order to avoid a collision with an approaching vehicle, Negron turned into the exit ramp of the McDonald's restaurant, collided with three vehicles in the parking lot, and ultimately hit the wall of the restaurant. The plaintiffs' claims against the defendants-appellants (hereinafter the McDonald's defendants) were grounded on two theories of negligence. The first was that the restaurant was negligently designed and constructed. The second was that a "one-way" traffic sign on McDonald's premises was pointing in the wrong direction, indicating that the exit ramp was an entrance.

The complaint was served in November 1980 and discovery apparently proceeded at a snail's pace. In 1985, the McDonald's defendants moved for summary judgment dismissing the complaint and all cross claims, which motion was denied. A notice of appeal was filed, but the appeal was never perfected. In 1988, the McDonald's defendants submitted a second motion for summary judgment, which was also denied. Finally, in March 1991 the McDonald's defendants made a third motion for summary judgment. This motion was denied based on the doctrine of the law of the case and because there was no newly discovered evidence presented in support of the motion. This appeal ensued, and we now reverse and grant the motion.

We initially note that the Supreme Court acted correctly in denying the third motion for summary judgment, inasmuch as it was compelled to do so by reason of the doctrine of law of the case. However, we are not bound by law of the case and may consider the motion on its merits (see, Hoffman v. Landers, 146 A.D.2d 744, 537 N.Y.S.2d 228; Rock v. Capitol Air, 128 A.D.2d 691, 513 N.Y.S.2d 191). Moreover, we are cognizant of the principle that multiple summary judgment motions in the same action are generally disfavored and should be discouraged in the absence of newly discovered evidence or other sufficient cause (see, ...