Hughes v. Nussbaumer, Clarke & Velzy

• Decision Date: 27 May 1988
• Docket Number: No. 1,1
• Citation: 529 N.Y.S.2d 658,140 A.D.2d 988
• Court: New York Supreme Court — Appellate Division
• Parties: William HUGHES and Jeanne Hughes, his wife; John Szymborski and Delores Szymborski, his wife; and Mary T. Perna, as Administratrix of the Estate of Michael D. Perna, Deceased, Appellants, v. NUSSBAUMER, CLARKE & VELZY, et al., Defendants, Nussbaumer & Clarke, Inc., Respondent, and a Third Party Action. Appeal

Page 658

529 N.Y.S.2d 658

140 A.D.2d 988

William HUGHES and Jeanne Hughes, his wife; John Szymborski

and Delores Szymborski, his wife; and Mary T.

Perna, as Administratrix of the Estate

of Michael D. Perna, Deceased, Appellants, v. NUSSBAUMER, CLARKE & VELZY, et al., Defendants, Nussbaumer &

Clarke, Inc., Respondent, and a Third Party

Action. Appeal No. 1.

Supreme Court, Appellate Division,

Fourth Department.

May 27, 1988.

Pusatier, Sherman & Abbott by Kenneth Sherman, Kenmore, for appellants.

Grosse, Rossetti, Chelus & Herdzik, P.C. by Victor Rossetti, Buffalo, for respondents.

Before DILLON, P.J., and GREEN, PINE, BALIO and DAVIS, JJ.

MEMORANDUM:

A judgment was entered after the entry of the order from which this appeal was taken. Where a prior order is subsumed within a judgment, the appeal is from the judgment, not the prior order ( Chase Manhattan Bank v. Roberts & Roberts, 63 A.D.2d 566, 404 N.Y.S.2d 608). Nevertheless, absent prejudice to the respondent, this court has the discretionary power to treat the notice of appeal as one taken from the judgment, and we conclude that our discretion should be exercised in this case (CPLR 5520[c]; Frankel v. Manufacturers Hanover Trust Co., 106 A.D.2d 542, 483 N.Y.S.2d 67; Chase Manhattan Bank v. Roberts & Roberts, supra ).

We further conclude that the judgment dismissing this action must be reversed. Hughes, Szymborski and Perna were injured on January 15, 1975 in an explosion at the old control building of the Buffalo Sewer Authority's Bird Island Sewage Treatment Plant. Perna died a few days later as a result of injuries suffered in the blast. An action was then commenced by or on behalf of the three Authority employees against Nussbaumer & Clarke, Inc., an engineering firm that performed certain design, consulting and supervisory work in 1952 in connection with the expansion of the sewage treatment facility. Plaintiffs claimed that defendant was negligent in the design or redesign of the old control building.

We find that Special Term erred by granting defendant's motion to dismiss. Although defendant demonstrated that the written contracts did not require it to perform services in connection with the old control building, the affidavit of plaintiffs' expert and the 1952 report prepared by defendant and annexed to that affidavit were adequate to raise issues of fact whether the scope of the project changed to include work on the old control building and whether defendant in fact performed...