Lettiere v. Martin Elevator Co., Inc.

• Citation: 406 N.Y.S.2d 510,62 A.D.2d 810
• Parties: Mary LETTIERE, as administratrix, etc., Plaintiff, v. MARTIN ELEVATOR CO., INC., Defendant Third-Party Plaintiff-Respondent, Bing and Bing, Inc., Third-Party Defendant-Appellant.
• Decision Date: 03 July 1978
• Court: New York Supreme Court Appellate Division

Page 510

406 N.Y.S.2d 510

62 A.D.2d 810

Mary LETTIERE, as administratrix, etc., Plaintiff, v. MARTIN ELEVATOR CO., INC., Defendant Third-Party Plaintiff-Respondent Bing and Bing, Inc., Third-Party Defendant-Appellant.

Supreme Court, Appellate Division,Second Department.

July 3, 1978.

Donovan & Donovan, Hicksville (Francis J. Donovan, Hicksville, of counsel), for third-party defendant-appellant.

Lester, Schwab, Katz & Dwyer, New York City (James P. Harrington and Stephen P. Seligman, New York City, of counsel), for defendant third-party plaintiff-respondent.

Before HOPKINS, J. P., and LATHAM, TITONE and O'CONNOR, JJ.

LATHAM, Justice.

On December 4, 1968 the plaintiff's decedent, employed as an elevator operator at an apartment building in Manhattan, fell into an elevator shaft from the lobby floor of the building. He sustained injuries which resulted in his death. Suit was brought against Bing and Bing, Inc. (Bing), the building's managing agent, and Martin Elevator Co., Inc. (Martin), the elevator maintenance company chosen by Bing to service the elevators at the building.

At the first trial of this action the cause of action against Bing was dismissed because the plaintiff's sole remedy as against it was pursuant to the Workmen's Compensation Law, since the decedent had been Bing's employee. The trial court also dismissed Martin's cross claim against Bing, after the jury returned a verdict of $225,000, apportioned 60% against Martin and 40% against Bing. On appeal we set aside that verdict, holding that the cross claim should be reinstated, and ordering a new trial due to certain errors in the Judge's charge to the jury (Lettiere v. Nameloc Estates, 53 A.D.2d 899, 385 N.Y.S.2d 629).

At the opening of the second trial the plaintiff and Martin settled the claim between them for $250,000, on a concession of liability by Martin, and a consent to the entry of judgment in that amount. The stipulation was that the consent could not be revoked; the entry of the judgment was postponed until the conclusion of the trial. Bing did not join in the stipulation. The trial court informed the jury that Martin and the plaintiff had consented to entry of the judgment, but that the stipulation was not binding on Bing. The revelation to the jury of that settlement between the plaintiff and Martin was, however, clearly prejudicial to Bing (cf. Sky v. Kahan-Frankl, 47 A.D.2d 939, 367 N.Y.S.2d 84).

The jury was charged that it must determine whether Martin was liable in any amount. If Martin was found liable, then it was to determine if, and to what extent, Bing was liable over to Martin. The jury found for the plaintiff, against Martin, and apportioned liability 25% against Martin and 75% against Bing.

Bing argues that the cross claim against it must be dismissed since Martin is barred by section 15-108 of the General Obligations Law from seeking contribution, since Martin entered into a stipulation with the plaintiff which constituted a release from liability.

Section 15-108 (subd. (c)) of the General Obligations Law states:

"Waiver of contribution. A tortfeasor who has obtained his own release from liability shall not be entitled to contribution from any other person."

Prior to the commencement of the plaintiff's case, Martin's attorney (Schwab) and counsel for the plaintiff (Peters) entered into the following stipulation on the record:

"MR. SCHWAB: May it please the Court, we have of course had protracted conferences before your Honor regarding this case prior to what I am now saying on the record. On behalf of my client the defendant and third party plaintiff Martin Elevator Company, Inc., I do hereby consent to the entry of a judgment against my client in the gross and total sum of $250,000 inclusive of any and all interest, costs and disbursements up to the date of entry of the judgment, with the understanding of course that this lawsuit will continue on the issues of which have been raised regarding the right of my client to obtain an apportionment from the third party defendant Bing & Bing, Inc.

"MR. PETERS: It is further understood and agreed that the concession and stipulation of liability shall be irrevocable. However, the judgment based upon that concession and stipulation may be entered upon conclusion of the issues by a jury determination on this trial.

"MR. SCHWAB: That is correct, and when you say may be entered, that's the earliest date that it would be entered, Mr. Peters.

"MR. PETERS: So stipulated."

Later, during the trial, the following colloquy took place:

"MR. PETERS: * * * For clarification, I would like Mr. Schwab to acknowledge that the judgment which may be entered by plaintiff in the sum of $250,000 may be entered at the completion of this trial, notwithstanding any verdict which may be rendered by the jury in connection with liability and such judgment may be entered no matter what the jury finds with respect to liability of Martin Elevator.

"MR. SCHWAB: Mr. Peters, I think I know what you're driving at. You have in mind a theoretical possibility that the jury find that Martin was in no way at fault.

"MR. PETERS: Exactly.

"MR. SCHWAB: In that regard, of course, I would like to qualify it. However, just so you understand my position that, if, for example, this jury here could not agree and a mistrial was declared for some reason, then we revert back to what we said on the prior stipulation which is that the judgment to be entered would be done after a jury verdict in the case.

"MR. PETERS: I agree to that. Apparently, just for the sake of clarification now, the plaintiff has an absolute right, an irrevocable right to enter judgment in the amount of $250,000 against the defendant Martin Elevator Company, no matter what a jury may determine with respect to its liability. However, the actual entry of said judgment will be deferred until such time as a jury does in fact render a verdict one way or another. Is that correct?

"MR. SCHWAB: That is correct."

Bing urges that Martin, in granting the plaintiff "an irrevocable...