Liebman v. Westchester County, 1

• Decision Date: 12 March 1973
• Docket Number: No. 1,1
• Citation: 341 N.Y.S.2d 567,41 A.D.2d 756
• Parties: Marc LIEBMAN, Plaintiff, v. COUNTY OF WESTCHESTER et al., Defendants. George W. SCOTT et al., defendants and third-party plaintiffs-appellants-respondents; Sheldon SAFER et al., third-party defendants-respondents-appellants. (and four other actions). Action
• Court: New York Supreme Court — Appellate Division

Page 567

341 N.Y.S.2d 567

41 A.D.2d 756

Marc LIEBMAN, Plaintiff, v. COUNTY OF WESTCHESTER et al., Defendants George W. SCOTT et al., defendants and third-party plaintiffs-appellants-respondents; Sheldon SAFER et al., third-party defendants-respondents-appellants (and four other actions).

Action No. 1.

Supreme Court, Appellate Division, Second Department.

March 12, 1973.

Before RABIN, P.J., and HOPKINS, MUNDER, MARTUSCELLO and SHAPIRO, JJ.

MEMORANDUM BY THE COURT.

In five negligence actions, jointly tried, (1) the third-party plaintiffs in Action No. 1 appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County, dated November 9, 1972, as granted, without prejudice, the motion of the third-party defendants in that action to dismiss the third-party complaint therein and (2) said third-party defendants cross-appeal from so much of the same order as, in granting said motion, did so without prejudice.

Order reversed insofar as appealed from, on the law, motion denied and third-party complaint reinstated, with $20 costs and disbursements to the third-party plaintiffs jointly against the other parties appearing separately and filing separate briefs on this appeal, i.e., (1) plaintiff Liebman and (2) third-party defendants Safer.

This litigation involving five separate actions resulted from a two-vehicle intersection collision which occurred in White Plains, New York, on June 16, 1967. One of the vehicles was owned by third-party defendant Fanny Safer and operated by her son Sheldon. Marc Liebman, Michael Ende and Carl Lombardi, Jr. were riding in the Safer vehicle at the time. The other vehicle was owned, leased and operated by the third-party plaintiffs, respectively, Hertz Corporation, Olson & Gordon Stationers, Inc. and George W. Scott. This vehicle was operated by Scott at the time of the collision in the course of his employment with Olson & Gordon Stationers.

Marc Liebman subsequently commenced Action No. 1 against the third-party plaintiffs and also joined certain governmental bodies and a real property owner. (He eventually discontinued the action against the latter defendants and proceeded against only the third-party plaintiffs.) Liebman did not join the Safers as parties defendant, although the fathers of his fellow infant passengers, Ende and Lombardi, brought representative suits against all the previously-named defendants and the Safers (Actions Nos. 3 and 5). The Safers sued, Inter alia, said third-party plaintiffs (Action No. 2) and were in turn sued by the driver of the second vehicle, third-party plaintiff Scott (Action No. 4).

A joint trial of the actions was ordered and the liability phase of the trial was conducted before a jury during the latter part of March, 1972. Verdicts in favor of all plaintiff passengers (Actions Nos. 1, 3 and 5) and in favor of the governmental bodies and the real property owner in Action No. 3 were returned. Additionally, verdicts of no cause of action were rendered in Actions Nos. 2 and 4. The damage phase of the litigation was set down for trial during the September, 1972 Term and was subsequently adjourned to the October, 1972 Term.

On March 22, 1972, unbeknown to the various parties and the trial court at the time of the liability trial, 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, abolishing the 'active-passive' rule governing indemnity among joint or concurrent tortfeasors and substituting therefor an apportionment-of-responsibility approach.

The third-party plaintiffs responded to this development, somewhat tardily, by serving their third-party complaint in Action No. 1 on August 31, 1972, naming the Safers as third-party defendants. By the order under review, a motion by the Safers to dismiss the third-party complaint was granted without prejudice and the case was restored to the head of the ready day calendar for an immediate trial on the issue of damages (Libman v. County of Westchester, 71 Misc.2d 997, 337 N.Y.S.2d 164).

It is clear that the rule of Dole (supra) applies to this case since it has been construed to apply to any case still in the judicial process as of the date of the Dole decision (Kelly v. Long Is. Light. Co., 31 N.Y.2d 25, 334 N.Y.S.2d 851; Hain v. Hewlett Arcade, 41 A.D.2d 991, 338 N.Y.S.2d 791 (Second Dept., dec. Dec. 11, 1972); Brown v. City of New York, 40 A.D.2d 785, 337 N.Y.S.2d 685). It is equally clear that the third-party plaintiffs may implead as parties defendant any tortfeasors not originally sued by the plaintiff so that a proper determination of the proportionate responsibility of the tortfeasors Inter se can be made (Stein v. Whitehead, 40...