Liebman v. Westchester County

• Decision Date: 24 October 1972
• Docket Number: Nos. 1,4 and 5,3,2,s. 1
• Citation: 337 N.Y.S.2d 164,71 Misc.2d 997
• Parties: Marc LIEBMAN, Plaintiff, v. COUNTY OF WESTCHESTER et al., Defendants. George W. SCOTT et al., Third-Party Plaintiffs, v. Sheldon SAFER and Fanny, Safer, Third-Party Defendants. Edward SAFER, Individually and as natural guardian for Sheldon Safer, an infant over the age of 14, et al., Plaintiffs, v. COUNTY OF WESTCHESTER et al., Defendants. Michael ENDE, an infant by his father and natural guardian Sidney Ende, et al., Plaintiffs, v. COUNTY OF WESTCHESTER et al., Defendants. George W. SCOTT, Plaintiff, v. Fanny SAFER and Sheldon Safer, Defendants. Michael ENDE et al., Plaintiffs, v. Fanny SAFER and Sheldon Safer, Defendants. Action
• Court: New York Supreme Court

Page 164

337 N.Y.S.2d 164

71 Misc.2d 997

Marc LIEBMAN, Plaintiff, v. COUNTY OF WESTCHESTER et al., Defendants.

George W. SCOTT et al., Third-Party Plaintiffs, v. Sheldon SAFER and Fanny, Safer, Third-Party Defendants.

Edward SAFER, Individually and as natural guardian for

Sheldon Safer, an infant over the age of 14, et

al., Plaintiffs, v. COUNTY OF WESTCHESTER et al., Defendants.

Michael ENDE, an infant by his father and natural guardian Sidney Ende, et al., Plaintiffs, v. COUNTY OF WESTCHESTER et al., Defendants.

George W. SCOTT, Plaintiff, v. Fanny SAFER and Sheldon Safer, Defendants.

Michael ENDE et al., Plaintiffs, v. Fanny SAFER and Sheldon Safer, Defendants.

Action Nos. 1, 2, 3, 4 and 5.

Supreme Court, Westchester County.

Oct. 24, 1972.

Cymrot, Wolin & Simon, New York City, for defendants and third-party plaintiffs Scott, Olson & Gordon and Hertz Corp. in Action No. 1.

Emile Z. Berman and A. Harold Frost, New York City, for plaintiffs in Action No. 1.

Katz & Gantman, White Plains, for third-party defendant Sheldon Safer in Action No. 1.

JOSEPH F. GAGLIARDI, Justice.

Third-party defendants, Sheldon and Fanny Safer, have brought on a motion to dismiss the third-party complaint in action number one. This motion raises important questions regarding the application of the apportionment principles set forth in Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 and Kelly v. Long Island Lighting Co., 31 N.Y.2d 25, 334 N.Y.S.2d 851, 286 N.E.2d 241.

On June 16, 1967 two motor vehicles collided on Saxon Woods Road in the City of White Plains. Vehicle number one was operated by Sheldon Safer, son of the absentee owner Fanny Safer. Plaintiffs Marc Liebman, Michael Ende and Carl Lombardi, Jr. ¹ were passengers in the Safer automobile. Vehicle number two was being operated by George W. Scott in the course of business on behalf of his employer Olson and Gordon Stationers; and is owned by the Hertz Corporation. In January or February 1968 these latter parties were sued by Marc Liebman (action number 1) for damages for personal injuries. In addition thereto, Liebman joined as party defendants two municipalities, the County of Westchester and the City of White Plains, and Margaret T. Noonan whose real property abuts the intersection where the accident occurred. Thereafter, the Safers ² commenced an action (action number two) for similar relief against the same defendants. Subsequently, Michael Ende and Carl M. Lombardi, J., initiated a law suit (action number 3) against the same defendants with the exception of the Safers. Action number 4 was begun by George W. Scott against the Safers only.

On June 18, 1968 the Court (Dillon, J.) issued an order directing a joint trial of the separate actions. Thereafter, Plaintiffs in action number 3 (Ende and Lombardi, Jr.) moved for leave to serve a supplemental summons and amended complaint to join the Safers as party defendants. The Court (Marbach, J.) granted the application but by an unexplained procedure the new cause of action became action number 5. Subsequently, plaintiffs in action number 3 moved to consolidate action number 5 with the other actions. The Court (Slifkin, J.) granted the motion to the extent that 'a joint trial be had of the several actions'.

In the latter part of March 1972 the matter was assigned for trial and a bifurcated trial was directed. Prior thereto, plaintiff Liebman discontinued his action against the municipalities and real property owner. ³ On March 28, 1972 the jury returned its verdicts. All plaintiff passengers prevalied on the liability phase of the split trial. The municipalities and real property owner were exonerated in the two actions in which they remained as parties. Verdicts of no cause of action were returned in actions 2 and 4. The results may be illustrated as follows:

The damage aspect of the matter was set down for trial during the September 1972 Term. ⁴ On March 22, 1972 the Court of Appeals decided Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288. On August 30, 1972 defendants in action number 1 (Scott, Olson & Gordon Stationers, Hertz Corp.) served a third-party summons and complaint on Sheldon and Fanny Safer pertaining to the claims of negligence asserted by Liebman only. The damage phase of the trial has been stayed pending disposition of the within motion. No judgment has been entered in any of the separate actions.

To recapitulate, Sheldon and Fanny Safer, the third-party defendants now move to dismiss the third-party complaint in action number 1. The third-party plaintiffs contend that the court can fashion a remedy whereby the jury that passes upon damages can also decide the question of apportionment. The third-party defendants urge that no exceptions were taken to the trial judge's charge which charge now constitutes the law of the case, thereby precluding assertion of the third-party claims. Additionally, said defendants argue that the doctrine of res judicata applies, and, further, that a third-party complaint may not issue at this stage of the proceedings. Plaintiff Liebman joins in the motion to dismiss the third-party action on the ground that the proceedings on damages will be delayed if a jury must pass upon the apportionment question.

It must be noted at the outset that application of the Dow principles to the matter at bar does not raise any issue of retroactivity (cf. Welborn v. DeLeonardis, 68 Misc.2d 853, 328 N.Y.S.2d 132; see Meade v. Roberts, 71 Misc.2d 120, 335 N.Y.S.2d 349). Dow applies to cases in the normal appellate process whether at the pleading stage (Frey v. Bethlehem Steel Corp., 30 N.Y.2d 764, 333 N.Y.S.2d 425, 284 N.E.2d 579) or after trial (Kelly v. Long Island Lighting Co., 31 N.Y.2d 25, 334 N.Y.S.2d 851, 286 N.E.2d 241). At bar, the verdicts post-date Dow as will the judgments. Consequently, the apportionment principles are applicable to this case (cf. Mtr. of Huie (Furman), 20 N.Y.2d 568, 285 N.Y.S.2d 610, 232 N.E.2d 642; Spindell v. Brooklyn Jewish Hosp., 35 A.D.2d 962, 317 N.Y.S.2d 963). The primary question for resolution, therefore, is whether the allocation of defendant responsibility may be determined at the damage phase of this split trial.

Before discussing this very important issue, the Court shall address itself to the other contentions presented by the parties. First, it is immaterial whether the doctrines of res judicata or collateral estoppel apply to the verdict portion of the case (cf. 8 Carmody-Wait 2d, New York Practice, Judgments, § 63:19) since it is conceded that the findings on negligence may not be relitigated in this forum. The determinations on negligence constitute the 'law of the case' for purposes of the second phase of the trial (1 Carmody-Wait 2d, Courts & Their Jurisdiction, §§ 2:64--2:69). Secondly, absent a statute of limitations problem (cf. Musco v. Conte, 22 A.D.2d 121, 254 N.Y.S.2d 589), third-party practice is permitted by statute at any time after service of an answer (CPLR 1007). Nonetheless, it has been held that a third-party complaint may not issue during trial unless a court order is obtained (Acetate Box Corp. v. Johnsen, 193 Misc. 54, 80 N.Y.S.2d 134; see Melino v. Tougher Heating & Plumbing Co., Inc., 23 A.D.2d 616, 256 N.Y.S.2d 885; 3 Carmody-Wait 2d, Parties, § 19:11). However, research has failed to elicit a situation where, as here, process was served during a hiatus in the split trial. Accordingly, the Court declines to adjudicate the question of timeliness on such tenuous grounds. For the purposes of this discussion it shall be presumed that the third-party complaint was properly served within the meaning of CPLR 1007.

Consequently, this case raises broad ancillary questions regarding implementation of the apportionment rules at split trials. It is noteworthy that apparently only one other jurisdiction in the United States weighs relative degrees of fault among tortfeasors in the absence of a comparative negligence scheme that would include plaintiffs (6 Del.Code Ann., tit. 10 § 6302(d)). The cited statutory provision is not mandatory and the court in the first instance determines whether the jury shall consider the issue of apportionment. Annotations to the cited statute do not reveal any cases concerned with the apportionment question in the context of jury instructions. In other jurisdictions that authorize apportionment (see e.g. Packard v. Whitten, 274 A.2d 169 (Me.); Bielski v. Schulze, 16 Wis.2d 1, 114 N.W.2d 105) the jury is instructed in tandem with the applicable comparative negligence scheme and is charged simultaneously on the issues of liability and apportionment. Some jurisdictions use special verdicts while others utilize general verdicts; and some jurisdictions permit the jury to return dollar and cents verdicts while others require a percentage allocation and ultimate calculation by the court (see Ghiardi & M. Hogan, 'Comparative Negligence--The Wisconsin Rule and Procedure' 18 Defense L.J. 537 (DRI 1969); P. Bouchard, 'Apportionment of Damages Under Comparative Negligence' 55 Mass.L.Q. 125 (1970); W. Flynn, 'Comparative Negligence: The Debate' 8 Trial 49 (May/June 1972); W. Schwartz, 'Pure Comparative Negligence in Action' 34 ATL L.J. 117 (1972); M. Rosenberg, 'Comparative Negligence in Arkansas; A 'Before and After' Survey' 13 Ark.L.Rev. 89 (1959); W. Prosser, 'Comparative Negligence' 51 Mich.L.Rev. 465 (1953); Ann. 8 A.L.R.3d 722, 'Comparative Negligence--Multiple Tortfeasors'; 1 N.Y. Pattern Jury Instructions 2:180).

In this jurisdiction comparative negligence is not yet the law and there is a policy in this department to split tort trials. Hence, the question arises at which stage of the split trial should be apportionment charge issue. Third-party plaintiffs herein contend that such charge may properly be given at the damages phase of the proceedings. However, the consensus of the trial judges at the present time is to use a two-step charge whether...