Greenberg v. City of Yonkers

• Decision Date: 30 October 1975
• Citation: 37 N.Y.2d 907,340 N.E.2d 744,378 N.Y.S.2d 382
• Parties: , 340 N.E.2d 744 George GREENBERG, as Administrator of the Estate of Ronald Greenberg, Deceased, et al., Plaintiffs, v. CITY OF YONKERS, Defendant, American Cyanamid Co., Inc., Appellant, and Federation of Jewish Philanthropies, Inc., et al., Respondents. (And a Third-Party Action.) (And Four Other Actions.)
• Court: New York Court of Appeals Court of Appeals

Page 382

378 N.Y.S.2d 382

37 N.Y.2d 907, 340 N.E.2d 744

George GREENBERG, as Administrator of the Estate of Ronald Greenberg, Deceased, et al., Plaintiffs, v. CITY OF YONKERS, Defendant, American Cyanamid Co., Inc. Appellant, and Federation of Jewish Philanthropies, Inc., et al Respondents. (And a Third-Party Action.) (And Four Other Actions.)

Court of Appeals of New York.

Oct. 30, 1975.

Thomas R. Newman and Benjamin H. Siff, New York City, for appellant.

Henry G. Miller, Clark, Gagliardi & Miller, White Plains, and Morris Zweibel, New York City, for Federation of Jewish Philanthropies, Inc., and Jewish Community Center, respondents.

McCarthy, Fingar, Donovan & Glatthaar, White Plains, for Eli Rabineau, respondent.

MEMORANDUM.

As a result of the plaintiffs' choice to litigate their claim on a warranty theory, the issue of Cyanamid's negligence was never submitted to the jury. Rather evidence of Cyanamid's negligence was totally excluded during the first stage of trial. Now Cyanamid argues that not having been found negligent in the first stage, it was not possible for the jury to find Cyanamid negligent on the respondents' cross claims. This position is patently without merit (Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d N.Y.S.2d 382, 282 N.E.2d 288; cf. Rogers v. Dorchester Assoc., 32 N.Y.2d 553, 347 N.Y.S.2d 22, 300 N.E.2d 403); particularly in light of the fact that the trial court emphasized on at least six occasions that evidence of Cyanamid's negligence was to be presented during the second stage of the trial. The second stage was for an apportionment of liability among the Center and Rabineau, and Cyanamid, if the latter were found to have been negligent. We agree with the reasoning of Justice Shapiro (45 A.D.2d 314, 358 N.Y.S.2d 453) and affirm on that opinion. Our affirmance should not be taken as approval of the trifurcation procedure utilized here by the trial court. It is preferable, and sometimes essential, that issues of liability be resolved at one stage of the trial.

BREITEL, Chief Judge (dissenting in part).

I would modify the judgment rendered against American Cyanamid Co. to limit recovery to 70% Of the actual amount paid by Rabineau in the settlement of plaintiffs' claims, namely 70% Of the $215,500 paid by him. An indemnitor is liable only for the amount by which the indemnitee has been damaged (see Schubert v. Schubert Wagon Co., 249 N.Y. 253, 257, 164 N.E. 42; Satta v. City of New York, 272 App.Div. 782, 69 N.Y.S.2d 653). The tort-feasors other than Cyanamid were not free to bargain away Cyanamid's liability, with all of the potential for impermissible collusion; but they could later recover on Cyanamid's liability to the extent, but only to the extent, that they had paid damages as tort-feasors only secondarily liable as compared with Cyanamid.

The result achieved by the Appellate Division and now by the majority of this court confuses comparative apportionment among joint tort-feasors (Kelly v. Long Is. Light. Co., 31 N.Y.S.2d 25, 30, 334 N.Y.S.2d 851, 286 N.E.2d 241) with rules of indemnity between primary and secondary tort-feasors (Rogers v. Dorchester Assoc., 32 N.Y.2d 553, 562--566, 347 N.Y.S.2d 22, 300 N.E.2d 403).

Accordingly, I dissent in part and vote to modify the judgment in favor of defendants-respondents against defendant-appellant.

JASEN, Judge (dissenting).

On December 20, 1965, a fire at the Yonkers Jewish Community Center claimed the lives of nine children and two adults. An arsonist started the fire which ignited decorative panels of Acrylite and in the resulting conflagration, death and injuries were sustained. Five wrongful death and personal injury actions were instituted on behalf of the injured parties and were consolidated for trial. At trial, the plaintiffs sought to charge four defendants with liability for their injuries. ¹ The Yonkers Jewish Community Center and the Federation of Jewish Philanthropies of Yonkers (collectively, the Center) were the owners and operators of the building in which the fire occurred. Eli Rabineau, the third defendant, was the architect who drew plans pursuant to which the Center's auditorium was altered. According to his plans, decorative screens, consisting of a panel of Acrylite surrounded by a wooden frame, were placed around the perimeter of the auditorium's balcony. The fourth defendant, American Cyanamid Co., was the manufacturer of Acrylite, an acrylic plastic.

The plaintiffs alleged that the Center had negligently operated and maintained the building and that Rabineau had been negligent in his design of the auditorium alterations. Negligence and breach of warranty causes of action were asserted against American Cyanamid. The theory of these claims was that American Cyanamid knew that Acrylite was highly flammable and, if ignited, would emit toxic gases, but failed to give sufficient warnings of these hazards. The Center and the Federation asserted a cross claim against American Cyanamid.

The trial of these actions was trifurcated. The first issue tried was that of liability; the second phase concerned the apportionment of fault; and the third with the propriety of a settlement entered into by the plaintiffs and defendants Rabineau and the Center. At the close of the liability phase of the trial, the court granted a motion to dismiss, on the merits, the negligence cause of actions against American Cyanamid for 'utter failure of proof.' The jury found for American Cyanamid on the breach of warranty claim. At the same time, Rabineau and the Center were found to be liable in negligence.

After liability had been determined, the plaintiffs settled their claims against the negligent defendants and their respective insurance carriers for $915,000. On the second phase of the trial, the Center was found to be liable for 30% Of the damage, and Rabineau for 70%. Despite its objection, American Cyanamid was kept in the second phase, and the jury found that it was responsible for 60% Of the Center's obligation and for 70% Of Rabineau's. The third phase of the trial resulted in a finding that the settlement between the plaintiffs and the three defendants was, with three relatively minor exceptions, reasonable. A judgment of $597,975 was was entered in favor of the Center and Federation against...