Kinney v. 1809 Forest Ave., Inc.
| Decision Date | 16 July 1957 |
| Parties | John E. KINNEY and Michael E. Kinney v. 1809 FOREST AVE., Inc. Anthony Stephen LEONI v. 1809 FOREST AVE. Corp. 1809 FOREST AVE., Inc. (also sued herein as 1809 Forest Ave. Corp.), Defendant and Third-Party Plaintiff v. PORT OF NEW YORK AUTHORITY, James C. Maroney and Elmore G. Smith, Jr., individually and as co-partners doing business under the firm name and style of Oak Room and Gerard K. Emery Third-Party Defendants. |
| Court | New York Supreme Court |
Sidney Goldstein, New York City, by Francis X. Curley, and Jeanne Ritchie Silver, New York City, of counsel, for Port of New York Authority.
Lawless & Lynch, New York City, for 1809 Forest Ave., Inc. (also sued herein as 1809 Forest Ave. Corp.).
Dominick J. Lodato, Brooklyn, of counsel, William B. Gladstone, New York City, for plaintiffs.
In this consolidated action for personal injuries the third-party defendant moves to dismiss the third-party complaint for legal insufficiency pursuant to Rule 106, subdivision 4 of the Rules of Civil Practice.
Plaintiffs in these actions sued the third-party plaintiff, the owner and operator of a bar and grill, for damages incurred as a result of a shooting incident which occurred at the defendant's place of business. The complaints of the plaintiffs in substance set forth that the plaintiffs were patrons of the defendant's bar when another patron (one Gerard K. Emery) suddenly and without provocation from the plaintiffs fired a number of gun shots which seriously wounded them. According to the allegations, Emery's boisterous, violent and obviously intoxicated condition was apparent to the defendant or its agents well before the shooting occurred and that the defendant well knew Emery's reaction of intoxicating beverages upon him and the condition in which he then was and despite such condition the defendant continued to serve him intoxicating beverages leading to the shooting.
The defendant is then charged with a violation of its duty to provide the public and plaintiffs with a safe and proper place to partake of the food and beverages and from attack or molestation.
Based upon these facts the complaints allege a cause of action under common law as well as under section 16 of the Civil Rights Law implementing the provisions of section 65 of the Alcoholic Beverage Control Law.
In impleading the third-party defendant (Port Authority) the defendant seeks to place responsibility upon it by alleging in its third-party complaint that the third-party defendant was negligent in employing Emery as a Peace Officer and permitting him to carry a gun when the Port Authority knew or should have known that Emery was an intemperate drinker with a violent temper who had made violent threats before and permitting such person to carry firearms. On the basis of these allegations the defendant asks to be completely indemnified for anticipated liability for the alleged wilful disregard of the law and affirmative neglect of its patrons' rights alleged in the complaints. It is apparent that Emery was not at the time of the occurrence acting in the performance of his duties as an officer or during his regular employment hours.
While it is true that section 193-a of the Civil Practice Act is to be liberally construed as it was intended to mitigate the strictness of the old practice which required a third-party plaintiff to show clear liability on the part of the third-party defendant (Robinson v. Binghamton Construction Co., 277 App.Div. 468, 100 N.Y.S.2d 900), nevertheless the allegations and charges of definite liability on the defendant's part as set forth in the original complaint, which becomes part of the attacked pleading, preclude the assertion of a third-party cause of action. The charge of active negligence against the defendant casts the third-party plaintiff in the role of an active tort-feasor and as such is not in a position to compel contribution or indemnification,...
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...24 See Manfredonia v. American Airlines, Inc., supra note 1. 25 Mitchell v. The Shoals, Inc., supra note 18; Kinney v. 1809 Forest Ave., 7 Misc.2d 1, 165 N.Y.S.2d 149 (Sup.1957); Playford v. Perich, supra note 26 Mitchell v. The Shoals, Inc., supra note 18; McNally v. Addis, 65 Misc.2d 204,......
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Anderson v. Comardo
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Mitchell v. Shoals, Inc.
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Mitchell v. Shoals, Inc.
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