Labriola v. Langone

• Decision Date: 18 May 1970
• Citation: 34 A.D.2d 809,311 N.Y.S.2d 640
• Parties: Barbara LABRIOLA, etc., et al., Respondents-Appellants, v. John LANGONE et al., Respondents, Long Island Scrap Metal Co. et al., Appellants; et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 640

311 N.Y.S.2d 640

34 A.D.2d 809

Barbara LABRIOLA, etc., et al., Respondents-Appellants, v. John LANGONE et al., Respondents, Long Island Scrap Metal Co. et al., Appellants; et al., Defendant.

Supreme Court, Appellate Division, Second Department.

May 18, 1970.

John J. Leonard, New York City, for plaintiffs-respondents-appellants.

Thomas V. Kingham, New York City, for defendants-respondents, John Langone and Lillian Villano; Bernard Meyerson, Brooklyn, of counsel.

Francis J. Heneghan, John J. Duffy, New York City, for defendant-appellant, Long Island Scrap Metal Co.

J. Robert Morris, New York City, John J. Bradbury, Long Island, for defendant-appellant, Willimansett Waste Co.

Before CHRIST, P.J., and MUNDER, MARTUSCELLO and KLEINFELD, JJ.

MEMORANDUM BY THE COURT.

In consolidated negligence actions to recover damages for personal injuries, etc., the cross-appeals are from a judgment of the Supreme Court, Oueens County, entered December 12, 1967 upon a jury verdict, as amended by an order of said court dated May 7, 1968, as follows: (1) defendant Long Island Scrap Metal Co. (hereinafter referred to as L.I. Scrap) appeals, as limited by its brief, from so much of the judgment (as amended) as is in favor of both plaintiffs against it; (2) Willimansett Waste Co., Inc. (hereinafter referred to as Willimansett) appeals, as limited by its brief, from so much of the judgment (as amended) as is in favor of plaintiff Barbara Labriola against it; and (3) plaintiffs cross-appeal from so much of the judgment as is against them and in favor of defendants Langone and Villano.

Judgment (as amended) modified, on the law and the facts, by striking therefrom the decretal provisions which are against the appealing defendants and substituting therefor a provision dismissing the complaints as to them. As so modified, judgment (as amended) affirmed insofar as appealed from, without costs.

This appeal involves two actions which were consolidated for trial. In the first action, plaintiffs' complaint, Inter alia, alleged that defendant Villano as owner of a vehicle, defendant Langone as driver thereof, and defendant L. I. Scrap as owner of another vehicle 'so recklessly, negligently and carelessly operated and managed their respective motor vehicles, that the infant plaintiff was struck, knocking her to the ground and causing the injuries * * * alleged.' The infant is the sole plaintiff in the second action, and she alleged therein that defendants Willimansett and Schorr each owned a truck which was stopped at L.I. Scrap's premises on the day of the accident, that Willimansett's truck extended over the sidewalk and into the roadway, that Schorr's truck was double parked, and that these trucks were so parked as to unlawfully obstruct the roadway and sidewalk and created a 'peculiarly harzardous condition' which caused the infant plaintiff to be struck by the Villano vehicle in the roadway.

At the trial there was no evidence offered against L.I. Scrap to sustain the allegations of the complaint, viz., that it negligently operated and maintained its vehicle. Its motion to dismiss the complaint, made at the close of the trial, should have been granted. Instead, the court charged, in part, and over L.I. Scrap's objection, that the 'claim' against L.I. Scrap was that the sidewalk had become illegally blocked in the course of its business and that its negligence was in 'allowing this illegal act to continue, having full knowledge.' This version of plaintiffs' 'claim' against L.I. Scrap bore no resemblance to that set out in the complaint against it. Further, there was no request by plaintiffs either at the trial or on this appeal to amend the complaint to conform to the proof.

Moreover, assuming amendment, we do not feel the proof supports a cause of action against either L.I. Scrap or Willimansett. The temporary blocking of a sidewalk for the purpose of making a truck delivery is neither illegal, nor a nuisance, nor negligence. In O'Neill v. City of Port Jervis, 253 N.Y. 423, 171 N.E. 694, there was a complete blockage of a sidewalk and part of the street during a building construction for over a month. In that case Judge Crane, writing for a unanimous court, stated in part as follows (p. 428, 171 N.E. p. 695):

'An adjoining property owner may, however, temporarily use a portion of the street or highway for taking goods or merchandise in or out of his premises. Welsh v. Wilson, 101 N.Y. 254, 4 N.E. 633, 54 Am.Rep. 698. Likewise, a person engaged in erecting a building may be obliged to use the sidewalk or street temporarily for the piling or storing of material, such as lumber, brick and sand, or for the unloading of articles upon the sidewalk, or while construcing foundations or other parts of the building. All these uses, however, must be...