Kurek v. Port Chester Housing Authority

• Decision Date: 01 December 1966
• Citation: 18 N.Y.2d 450,276 N.Y.S.2d 612,223 N.E.2d 25
• Parties: , 223 N.E.2d 25 Stephanie E. KUREK et al., Respondents, v. PORT CHESTER HOUSING AUTHORITY, Appellant-Respondent, and John A. Liammari, doing business as Westchester Metered Laundry Service, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 612

276 N.Y.S.2d 612

18 N.Y.2d 450, 223 N.E.2d 25

Stephanie E. KUREK et al., Respondents, v. PORT CHESTER HOUSING AUTHORITY, Appellant-Respondent, and John A. Liammari, doing business as Westchester Metered Laundry Service, Appellant.

Court of Appeals of New York.

Dec. 1, 1966.

Reid A. Curtis and William D. Munro, Merrick, for appellant.

Sidney A. Schwartz and Edward Ash, New York City, for appellant-respondent.

William D. Sporborg, Jr., and Robert J. McKeever, Port Chester, for respondents.

KEATING, Judge.

Mrs. Stephanie Kurek, the plaintiff in this action, was a tanant in a housing project operated by the Port Chester Housing Authority. In the basement of the apartment house in which Mrs. Kurek resided there was located a common laundry room containing coin-operated washing machines for use by the tenants.

These machines were owned and serviced by the defendant John Liammari, doing business as the Westchester Metered Laundry Service. In return for allowing the machines to be placed in the basement of the apartment house and supplying the water and electrical power needed for the operation of the machines, the Authority received a stated monthly sum as well as a percentage of the revenue collected.

Mrs. Kurek was injured when the machine from which she was removing her wash suddenly started up again, after it appeared that the machine had come to a complete stop, the dial was at 'off', and a red light had flashed on indicating that the machine was ready for a new load of wash.

This action for personal injuries and loss of services was commenced by Mrs. Kurek and her husband against both the Port Chester Housing Authority and John Liammari.

The Authority cross-claimed for indemnity against Liammari. The first of these claims was predicated upon an indemnification provision in the contract between them and the second was predicated upon a common-law right of indemnification. The determination of these cross claims was, by stipulation of the parties, left to the Trial Judge.

The jury returned a verdict for the plaintiff against both defendants and the Trial Judge found in favor of the Authority on its Contractual cross claim. The Appellate Division affirmed the judgment upon a stipulation by the plaintiffs agreeing to accept a reduced judgment.

Two questions are raised upon this appeal, First, whether there is evidence in the record sufficient to justify the verdict in plaintiffs' favor against the two defendants, and Secondly, whether the Trial Judge was correct in allowing recovery on the cross claim in favor of the defendant Port Chester Housing Authority.

We believe that there was sufficient evidence in the record from which the jury could have reached its determination that the injury to the plaintiffs resulted from the negligence of both defendants.

Likewise, we believe that the Trial Judge was correct in allowing the Authority's contractual cross claim for indemnification.

Under the theory upon which the case was tried a verdict against the Authority could have been sustained only if the jury found that the Authority had actual notice of the defective operation of the machine and had neglected to have it promptly repaired or to warn tenants of the danger involved in its use. The Authority was thus 'actively' negligent, as that term has been defined for the purpose of determining whether a right to indemnification exists. As a result the Authority cannot recover under the common-law theory of indemnification (Jackson v. Associated Dry Goods Corp., 13 N.Y.2d 112, 242 N.Y.S.2d 210, 192 N.E.2d 167; Adler v. Tully & Di Napoli, 300 N.Y. 662, 91 N.E.2d 323).

The right of the Authority, under these circumstances, to recover indemnification on the basis of a contractual provision, depends upon the intent of the parties and the manner in which that inten is expressed in the contract. Because it is unnatural that one would agree to indemnify another, when he would otherwise be under no such legal...