Klinger v. Dudley

Decision Date17 February 1977
Citation41 N.Y.2d 362,361 N.E.2d 974,393 N.Y.S.2d 323
Parties, 361 N.E.2d 974 Lora H. KLINGER, Individually and as Administratrix of the Estate of Richard B. Klinger, Deceased, Appellant, v. Jerry DUDLEY et al., Defendants and Third-Party Defendants-Respondents, and Frank Leone, Appellant, et al., Defendants. Frank LEONE, Third-Party Plaintiff-Appellant, v. Steven F. SMITH, et al., Third-Party Defendants-Respondents, et al., Third- Party Defendants. Joseph VALENTINO et al., Plaintiffs, v. John H. THOMPSON et al., Defendants. Joseph KABAN, Appellant, v. John H. THOMPSON et al., Respondents. Eugenia KABAN, Appellant, v. John H. THOMPSON et al., Respondents. John H. THOMPSON et al., Third-Party Plaintiffs-Appellants, v. MANHATTAN BOILER AND EQUIPMENT CORPORATION et al., Third-Party Defendants- Respondents. (And Another Action.)
CourtNew York Court of Appeals Court of Appeals

James N. Hite, Buffalo, for Lora H. Klinger, appellant.

William R. Blood, Jamestown, for Frank Leone, appellant.

Irving C. Maghran, Jr., Buffalo, for Jerry Dudley and another, defendants and third-party defendants-respondents.

John J. Sullivan, Jr., Buffalo, for Steven F. Smith and another, third-party defendants-respondents.

Harry T. Constas and Charles F. McGuire, New York City, for Joseph Kaban and another, appellants.

John H. Nelson, Mineola, for Manhattan Boiler and Equipment Corporation, third-party defendant-respondent.

William J. Ferretti and John G. Logue, New York City, for Sophie Nosaniuk, third-party defendant-respondent.

Philip Hoffer, Raymond J. MacDonnell, Rose L. Hoffer, New York City, and Peter T. Affatato, Hicksville, for John H. Thompson and another, defendants.

COOKE, Judge.

We consider here yet another issue arising from the apportionment of liability permitted under Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288. The issue has presently arisen in two multiple-party cases, the relevant facts of which are recited below.

Klinger v. Dudley

Plaintiff Lora H. Klinger brought an action for the wrongful death of her husband Richard B. Klinger who died as a result of injuries sustained in an automobile accident which occurred on October 29, 1966. Plaintiff sued: (1) Wayne Cookson, the driver and Elmo Cookson, 1 the alleged owner, of one of the vehicles involved in the accident; (2) Jerry and Julius Dudley, the driver and owner of another vehicle involved; and (3) Frank Leone, the owner-driver of yet another vehicle involved in the accident. Thereafter, defendant Leone (1) cross-claimed against defendants Dudley and Cookson, (2) impleaded, as third-party defendants, Steven Frank Smith and Charlotte Smith, and (3) impleaded, as third-party defendants, Donald and Francis Hammond.

Prior to trial, the Appellate Division, Fourth Department (40 A.D.2d 1078, 339 N.Y.S.2d 223), considering a preclusion order, granted a motion for summary judgment dismissing plaintiff's complaint against defendants Dudley, who nevertheless remained in the action as third-party defendants pursuant to defendant Leone's cross claim against them. The jury returned a verdict of no cause of action in favor of defendants Cookson, who were also third-party defendants, and likewise in favor of third-party defendants Hammond. With respect to the remaining parties, defendant Leone, third-party defendants Dudley, who, as noted, succeeded earlier in having plaintiff's complaint against them dismissed, and third-party defendants Smith, who were never sued by plaintiff, the jury returned a verdict of $300,000 and apportioned liability among them in the following proportions: Leone, 65%; Dudleys, 25%; and Smiths, 10%.

Thereafter the insurance carrier of defendant Leone paid the $10,000 limit of its policy. Leone apparently has no reachable assets. Plaintiff then sought to recover against third-party defendants Dudley and Smith. In this regard, plaintiff filed two judgments, both of which were subsequently vacated, the first of which, in addition to seeking recovery against defendant Leone, also included decretal paragraphs ordering the assignment to plaintiff of defendant Leone's judgments as third-party plaintiff against third-party defendants Dudley and Smith, and the second of which adjudged that plaintiff recover, not only against defendant Leone, but also against third-party defendants Dudley and Smith.

After the vacating of each of these judgments, a third was entered which provided, Inter alia, that plaintiff recover of defendant Leone the full $300,000 verdict plus interest, and that Leone as third-party plaintiff recover of third-party defendants Dudley and Smith the sums representing their percentage of liability as found by the jury. Upon appeal, the Appellate Division, Fourth Department, unanimously modified, on the law, ordering that this third judgment be modified to provide that payment by the third-party defendants Dudley and Smith is conditioned upon defendant Leone paying 'the full amount of the judgment rendered against him', and, as modified, the judgment was affirmed. Thus, plaintiff finds herself in a situation where defendant Leone has paid only $10,000 of a $300,000 (plus interest) judgment against him and is apparently without other assets, and where defendant Leone as third-party plaintiff is precluded, until he makes further payments, from recovering any amounts from third-party defendants Dudley and Smith, which amounts would be available to satisfy plaintiff's judgment against defendant Leone.

Valentino v. Thompson

Plaintiffs Joseph Valentino and Joseph Kaban were passengers in a motor vehicle owned by their employer, Manhattan Boiler & Equipment Corporation (hereinafter referred to as Manhattan Boiler), which vehicle was in an accident with another vehicle while being operated by their coemployee, Andre Nosaniuk, who died as a result of the accident. The other vehicle was owned by John H. Thompson and operated by Ralph Mazza, the latter dying as a result of the accident. Plaintiffs Valentino and Kaban, and their respective spouses, each brought actions against the owner, John H. Thompson, and the administrator of the estate of Ralph Mazza, the operator of the vehicle which collided with that in which plaintiffs were passengers. Since, however, plaintiffs' injuries arose out of and in the course of their employment, workmen's compensation constituted plaintiffs' exclusive remedy against their employer, Manhattan Boiler (see Workmen's Compensation Law, § 11), and against their coemployee, Andre Nosaniuk, or his estate (see Workmen's Compensation Law, § 29, subd. 6). Defendants Thompson and the representative of Mazza's estate, however, impleaded plaintiffs' employer and the representative of the coemployee's estate as third-party defendants.

After trial, the jury returned verdicts in favor of each of the plaintiffs and their spouses, verdicts totaling $632,500, and apportioned liability as follows: 75% Against defendants Thompson and the administrator of Mazza's estate and 25% Against third-party defendants Manhattan Boiler and the administratrix of Nosaniuk's estate. A judgment was then entered in favor of each plaintiff against defendants Thompson and the administrator of the Mazza estate in the full dollar amount of the jury verdict as to damages, and in favor of said defendants as third-party plaintiffs against third-party defendants Manhattan Boiler and the administratrix of the Nosaniuk estate in a dollar amount computed in accordance with the jury's apportionment of liability. The Trial Justice, however, resettled the judgment, upon motion of the third-party defendants, to provide that the defendants shall be entitled to judgment against the third-party defendants upon payment by said defendants to the plaintiffs of more than their proportionate share of the judgment. Plaintiffs Kaban appealed 2 and the Appellate Division, Second Department, affirmed and granted leave to appeal to this court.

Similar to the situation of the plaintiffs in the Klinger v. Dudley actions (discussed, Supra), plaintiffs have recovered $10,000 in insurance proceeds from coverage protecting each of the defendants Thompson and the Mazza estate, for a total of $20,000, and both defendants apparently have no reachable assets. Moreover, plaintiffs are effectively precluded from recovering anything further since such defendants have not paid more than their proportionate share of the judgment, and hence, in accordance with the resettled judgment, such defendants may not recover against the third-party defendants.


We agree in principle with the holdings of the Appellate Divisions of the Fourth and Second Departments in each of the instant matters, but make certain somewhat technical modifications of the orders and judgments, as detailed hereinafter.

Although Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288, Supra, created new rights for defendants, its effect on plaintiffs is indirect and incidental (see Siegel, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR, C3019:34, p. 236). Indeed, Kelly v. Long Is. Light. Co., 31 N.Y.2d 25, 334 N.Y.S.2d 851, 286 N.E.2d 241 made clear that Dole did not 'change the plaintiff's right to recover against any joint tort-feasor in a separate or common action the total amount of his damage suffered and not compensated' (p. 30, 334 N.Y.S.2d p. 855, 286 N.E.2d p. 243). The same is true where the plaintiff seeks an enlargement of his rights because of a Dole apportionment. The reason, as suggested in Kelly, that a plaintiff's rights are not affected by Dole is that generally a plaintiff is free to sue, and after favorable judgment collect against, any or all tort-feasors as he sees fit. Moreover, if a plaintiff has not elected to sue a particular tort-feasor, and that tort-feasor is subsequent impleaded as a third-party defendant by a tort-feasor plaintiff has elected to sue, the plaintiff may ordinarily amend his complaint to assert a claim he, plaintiff, has...

To continue reading

Request your trial
48 cases
  • Prudential Lines Inc., In re
    • United States
    • U.S. Court of Appeals — Second Circuit
    • October 5, 1998
    ...liable for the injury, while the third-party defendant was found 54% liable. Under the rule announced in Klinger v. Dudley, 41 N.Y.2d 362, 393 N.Y.S.2d 323, 361 N.E.2d 974 (1977), the plaintiff could not recover directly from the third-party defendant, and was in a bind because the defendan......
  • In Re Franklin Nat. Bank Sec. Litigation
    • United States
    • U.S. District Court — Eastern District of New York
    • August 17, 1979
    ...1401; see, e. g., Bay Ridge Air Rights Inc. v. State, 44 N.Y.2d 49, 404 N.Y.S.2d 73, 375 N.E.2d 29 (1978); Klinger v. Dudley, 41 N.Y.2d 362, 393 N.Y.S.2d 323, 361 N.E.2d 974 (1977); North Colonie Central School Dist. v. McFarland Const. Co., Inc., 60 A.D.2d 685, 399 N.Y.S.2d 933 (1977), con......
  • Mar–Cone Appliance Parts Co. v. Mangan
    • United States
    • U.S. District Court — Western District of New York
    • July 20, 2012
    ...may lie against third party despite plaintiff's failure to join third-party as a defendant) (citing Klinger v. Dudley, 41 N.Y.2d 362, 393 N.Y.S.2d 323, 361 N.E.2d 974, 980 (1977)). See also Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (1972) (chemical manufacturer ......
    • United States
    • U.S. District Court — Eastern District of New York
    • July 28, 1992
    ...were third-party rather than direct claims certainly weakened the plaintiff's bargaining position, cf. Klinger v. Dudley, 41 N.Y.2d 362, 393 N.Y.S.2d 323, 361 N.E.2d 974 (1977) (plaintiff has no right to recover directly from third-party defendant, even if direct defendant is insolvent), an......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT