DiPerna v. Roman Catholic Diocese of Albany

• Decision Date: 27 June 1968
• Citation: 30 A.D.2d 249,292 N.Y.S.2d 177
• Parties: Lucille F. DiPERNA, an Infant, by Vincent J. DiPerna, Her Guardian ad Litem, et al., Appellants, v. ROMAN CATHOLIC DIOCESE OF ALBANY et al., Defendants and Third-Party Plaintiffs-Appellants, et al., Defendant. Fay Auld EVANS, Jr., et al., Third-Party Defendants-Respondents, et al., Third-Party Defendants.
• Court: New York Supreme Court — Appellate Division

Page 177

292 N.Y.S.2d 177

30 A.D.2d 249

Lucille F. DiPERNA, an Infant, by Vincent J. DiPerna, Her Guardian ad Litem, et al., Appellants, v. ROMAN CATHOLIC DIOCESE OF ALBANY et al., Defendants and Third-Party Plaintiffs-Appellants, et al., Defendant Fay Auld EVANS, Jr., et al., Third-Party Defendants-Respondents, et al., Third-Party Defendants.

Supreme Court, Appellate Division, Third Department.

June 27, 1968.

Medwin, Couch & McMahon, Albany (Edward McMahon, Albany, Nathan M. Medwin, of counsel), for defendants and third-party plaintiffs-appellants.

Friedman, Battisti & Friedman, Catskill (Henry H. Koblintz, Albany, of counsel), for plaintiffs-respondents-appellants.

Thomas Turley, Hudson, for defendant St. Patrick's Church.

Francis E. Lehner, Delmar (Edward J. Grogan, Albany, of counsel), for third-party defendant-respondent, Wayne Iron Works.

Degraff, Foy, Conway & Holt-Harris, Albany, for third-party defendant-respondent, Allaire Matthewson.

Donohue, Bohl, Clayton & Komar, Albany (Myron Komar, Albany, of counsel), for third-party defendants-respondents, Auld and Daivs.

Before GIBSON, P.J., and HERLIHY, AULISI, STALEY and GABRIELLI, JJ.

GABRIELLI, Justice.

These are appeals by plaintiffs and defendants-third-party plaintiffs from (1) an order and judgment of the Supreme Court at Special Term, entered March 8, 1966 in Albany County, which granted motions by those defendants who are also third-party defendants to dismiss the amended complaint and the amended third-party complaint, and (2) from an order entered January 31, 1967 which denied a motion for reargument.

During a basketball game being held at St. Patrick's Academy, the infant plaintiff was injured when she was pushed against the end of a metal railing which protruded from the end of the folding bleachers in the gymnasium. Suit was instituted against three defendants, viz., the Roman Catholic Diocese of Albany, St. Patrick's Academy and Saint Patrick's Church. The first two named defendants in turn impleaded (1) the architects who designed the gymnasium, (2) the general contractor retained to install the equipment, (3) the manufacturer of the bleachers and (4) the subcontractor who actually installed the bleachers and railing. Following the impleader of these third-party defendants, plaintiffs amended their complaint to assert a cause of action against these impleaded defendants.

The motions for dismissal with which we are here concerned are those made by the architects and the manufacturers of the bleachers and railing.

The claims of negligence against the third-party defendants set forth in the amended complaint charge them with negligence by 'permitting the creation, maintenance, use and continuance of a dangerous condition, facility, and/or instrumentality, by permitting and providing the installation of folding bleachers with extending metal railings protruding at the end thereof' and further that they 'wrongfully and carelessly designed, specified, manufactured and/or installed the equipment'.

The third-party complaint charges negligence in the design and furnishing of the bleachers '* * * in the manner in which they designed, manufactured and installed said bleachers for use in said gymnasium'.

Conspicuously absent in both the...