Dobess Realty Corp. v. City of New York
| Decision Date | 03 March 1981 |
| Citation | 79 A.D.2d 348,436 N.Y.S.2d 296 |
| Parties | DOBESS REALTY CORP., Candido Ramos, 137th Street Associates, Consolidated Edison Company of New York, Inc., Empire City Subway Company (Limited) and Samuel M. Miller, Plaintiffs-Appellants-Respondents, v. The CITY OF NEW YORK, Defendant-Respondent, and New York City Transit Authority and Warshaw Construction Company, a/k/a Warshaw Construction Corp., Defendants-Appellants-Respondents. 612 WEST 137TH STREET CORP., Plaintiff-Respondent, v. The CITY OF NEW YORK, Defendant-Respondent, and Warshaw Construction Corp., Defendant-Appellant-Respondent. NEW YORK TELEPHONE COMPANY, Plaintiff-Appellant-Respondent, v. The CITY OF NEW YORK, Defendant-Respondent, and New York City Transit Authority and Warshaw Construction Corp., Defendants-Appellants-Respondents. Daniel BRITO, Lourdes Reyes Brito, Wilt Chameberlain, FGF French Dry Cleaners, Inc., Loretta Gaye, Walter Gaye, John C. Lewis, Jose A. Losada, Roy Maccabee, d/b/a Bam Operating Co., Bienviendo Morales, Ramon Potter, Teresa Potter, Joseph Strauss, Robert E. Swain, Willie Wright, Mary Wright and Siegel Development Corporation, Plaintiffs-Respondents-Appellants, v. The CITY OF NEW YORK, Defendant-Respondent, and New York City Transit Authority and Warshaw Construction Corp., Defendants-Appellants-Respondents. SPIROS NITSOS, d/b/a King Pizza, Plaintiff-Respondent-Appellant, v. WARSHAW CONSTRUCTION CORP., Defendant-Appellant-Respondent. NEW YORK TRANSIT AUTHORITY, Plaintiff-Appellant-Respondent, v. WARSHAW CONSTRUCTION CORPORATION, Defendant-Appellant-Respondent, and The City of New York, Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Robert H. Silk, New York City, of counsel; Louis H. Cohen and George E. Ashley, New York City, for plaintiffs-respondents-appellants in Action No. 4 and plaintiff-appellant in Action No. 5; and plaintiff-respondent-appellant Empire City Subway Company (Limited) in Action No. 1 and plaintiff-respondent-appellant New York Telephone Company in Action No. 3.
William F. Larkin, New York City, for defendant-appellant-respondent Warshaw Const. Corp.
Michael Gage, New York City, of counsel; Leonard Koerner and Carolyn E. Demarest, New York City, with him on the brief; Allen G. Schwartz, Corporation Counsel, New York City, for the City of New York.
Joseph J. Klem, New York City, of counsel; Ernest J. Williams, New York City, for plaintiff-appellant-respondent Consolidated Edison Co. of New York, Inc.
Before KUPFERMAN, J. P., and SANDLER, MARKEWICH, SILVERMAN and BLOOM, JJ.
In 1973 defendant Warshaw Construction Company contracted with the New York City Transit Authority, as agent for the City of New York, to construct a new subway entrance at Broadway and 137th Street in Manhattan. The plan required exposing a 50-foot portion of a 36-inch diameter cast iron water main, which had been installed in 1903. As Warshaw was required to excavate fifteen feet below the main to allow for placement of a new sewer line, the water main was suspended by cables which were supported by steel beams or twelve-inch timbers placed across the beams. It remained this way without mishap for about seven months until 3:45 PM on September 23, 1974 when a piece of iron measuring approximately twelve to fifteen inches long and eight inches wide broke out near the bottom portion of the main, causing extensive flooding damage to plaintiffs.
Numerous lawsuits were filed against Warshaw, the Transit Authority and the City alleging negligence in the supervision and maintenance of the water main and charging the City with failing to act diligently to shut off the water after receiving notice of the break. Several of the actions were consolidated and a joint trial on the issue of liability only was held before Acting Judge Blangiardo and a jury. At the conclusion of the trial, but before submitting the case to the jury, the court dismissed the complaints and cross-claims against the City, and the jury thereafter found in favor of the remaining defendants, Warshaw and the Transit Authority. Plaintiffs moved post-trial pursuant to CPLR 4404 to set aside the verdict. The court granted the motion and directed the entry of judgment in favor of plaintiffs and against Warshaw and the Transit Authority. Warshaw and the Transit Authority appeal from the setting aside of the jury verdict, and plaintiffs appeal from the dismissal of the complaints and cross-claims against the City.
We must first turn our attention to a procedural question regarding the timeliness of the appeals by plaintiffs Con Ed, Empire and New York Telephone from the trial court's dismissal of the complaints and cross-claims against the City of New York. For reasons which follow, we find the appeals to be timely.
The attorneys for the plaintiffs in Action # 4 (Daniel Brito, et al.) filed and served a judgment on April 11, 1979 which vacated the jury verdict in favor of Warshaw and the Transit Authority, directed that judgment be entered against these defendants, and ordered that the Transit Authority have judgment over on its cross-claim against Warshaw. While the dismissal of the complaint and cross-claims against the City was contained in the body or recital portion of the judgment, there was no ordering paragraph to that effect in the decretal portion of the judgment. The April 11, 1979 judgment was never served by the City upon any of the parties.
On August 20, 1980, Con Ed filed and served a final judgment decreeing that the complaint and cross-claims against the City were dismissed and filed a notice of appeal from that judgment the same day. Empire filed a notice of appeal from that judgment on August 21. On September 2, 1980, New York Telephone filed a final judgment decreeing that New York Telephone's complaint against the City was dismissed, and filed a notice of appeal from that judgment the same day. Plaintiffs Brito, et al. followed a similar procedure but they have withdrawn their appeal from the judgment entered by them on August 12, 1980.
Warshaw and the City now argue that any appeal by plaintiffs from the April 11, 1979 judgment would be time-barred, and that the judgments entered by Con Ed, New York Telephone and Empire should be dismissed on the authority of Halloran v. Virginia Chemicals, 41 N.Y.2d 386, 393 N.Y.S.2d 341, 361 N.E.2d 991, wherein the Court of Appeals permitted an appeal to be taken from that portion of a judgment reciting the dismissal of a third-party complaint even though there was no ordering paragraph to that effect. We need not reach the issue whether the holding of Halloran, permitting an issue to be heard on appeal despite an omission in the judgment as a matter of form, should be extended to foreclose a party from entering and appealing from a separate judgment in a severed action. See Schuller v. Robison, 139 App.Div. 97, 123 N.Y.S. 881; Tanzer v. Breen, 131 App.Div. 654, 657, 116 N.Y.S. 110; CPLR 5012.
We find that plaintiffs are not time-barred from pursuing an appeal from the dismissal of their complaints and cross-claims against the City because the City, the prevailing party on this issue, has never served plaintiffs with a judgment so providing. O'Brien v. City of New York, 6 A.D.2d 63, 174 N.Y.S.2d 819. The rule that service of a judgment or order on the appellant by the prevailing party is necessary to start the 30-day limitation period running, dates back at least 123 years. See Fry v. Bennett, 16 How.Pr.R. 402 (1858) wherein it was stated at p. 405 that the rule
In Kilmer v. Hathorn, 78 N.Y. 228 (1879) the Court of Appeals explicitly confirmed that rule, which today is apparently such a long-accepted part of New York's appellate practice as to require no case citations by one leading commentator. Siegel, Practice Commentary, C5513:2, McKinney's Cons.Laws of N.Y., Book 7B, CPLR 5513(a), p. 138. When this court applied the...
To continue reading
Request your trial
-
W. Rogowski Farm, LLC v. Cnty. of Orange
...157 A.D.2d 837, 838, 550 N.Y.S.2d 903 ; Maddox v. City of New York, 104 A.D.2d at 431, 478 N.Y.S.2d 923 ; Dobess Realty Corp. v. City of New York, 79 A.D.2d 348, 351, 436 N.Y.S.2d 296 ; O'Brien v. City of New York, 6 A.D.2d 63, 64, 174 N.Y.S.2d 819, cited with approval in Farragher v. City ......
-
Trimarco v. Klein
...adjudicative process Havas v. Victory Paper, 49 N.Y.2d 381, 388, 426 N.Y.S.2d 233, 402 N.E.2d 1136; see Dobess Realty Corp. v. City of New York, 79 A.D.2d 348, 354-355, 436 N.Y.S.2d 296 (appeal pending); Triggs v. Advance Trucking Corp., 23 A.D.2d 777, 258 N.Y.S.2d Nor do I find persuasive ......
-
Wilk v. Lewis & Lewis, P.C.
...206 A.D.2d 771, 773, 615 N.Y.S.2d 107; Williams v. Forbes, 157 A.D.2d 837, 838-839, 550 N.Y.S.2d 903; Dobess Realty Corp. v. City of New York, 79 A.D.2d 348, 352, 436 N.Y.S.2d 296, appeal dismissed 53 N.Y.2d 1054, 442 N.Y.S.2d 500, 425 N.E.2d 888, 54 N.Y.2d 754, --- N.Y.S.2d ----, --- N.E.2......
-
Farrell, Matter of
...Burke, 306 N.Y. 172, 117 N.E.2d 237 (1954); Dennerlein v. Martin, 247 N.Y. 145, 159 N.E. 891 (1928); Dobess Realty Corp. v. City of New York, 79 App.Div.2d 348, 436 N.Y.S.2d 296 (1981); DeRosa v. Binghamton Taxicab Co., Inc., 266 App.Div. 1044, 44 N.Y.S.2d 664 (1943). Saliently, the New Yor......