McMahon v. City of New York

Decision Date18 December 1984
Citation105 A.D.2d 101,483 N.Y.S.2d 228
CourtNew York Supreme Court — Appellate Division
PartiesBetty McMAHON, as Administratrix of the Goods, Chattels and Credits of Thomas McMahon, and Betty McMahon, individually, Plaintiff-Respondent, and Nathaniel Weiss, Ita Weiss, Nathan Quinones, Robert Sellers, Bridget Sellers and Marion Biederbeck as Administratrix of the goods, chattels and credits which were of Leonard H. Biederbeck, deceased, Plaintiffs, v. The CITY OF NEW YORK, Defendant-Appellant, and Consolidated Edison Company of New York, Inc., Park Row Cafe, Inc., China Dynasty Enterprises, Inc., 25 Associates Inc., Urban Management, Inc., Albert Bold., George Feldman, Schlink Heating Corp., and/or Schlink Plumbing & Heating Co., Inc., Defendants.

Emilio Nunez, New York City, of counsel (Harry H. Lipsig, Pamela Anagnos Liapakis and Cheryl R. Eisberg, New York City, with him on brief; Lipsig, Sullivan & Liapakis, P.C., New York City, attorneys), for plaintiff-respondent.

Alfred Weinstein, New York City, of counsel (Leonard Koerner, Asst. Corp. Counsel, New York City, with him on brief; Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City, attorney), for defendant-appellant.

Before ASCH, J.P., and SILVERMAN, MILONAS and KASSAL, JJ.

SILVERMAN, Judge.

This is an appeal from (a) an order of the Supreme Court, Special Term, which denied a post-judgment motion by defendant City of New York to vacate a judgment previously entered against it in favor of plaintiffs for $555,898, and to dismiss the complaint, and (b) further from said judgment as amended. The ground of the motion was the subsequent reversal by the Court of Appeals in a companion case of the interlocutory judgment of liability on which the final judgment was based, O'Connor v. City of New York, 58 N.Y.2d 184, 460 N.Y.S.2d 485, 447 N.E.2d 33. We would reverse the order appealed from and grant the City's motion to vacate the judgment and dismiss the complaint.

This case arises out of the tragic Ann Street explosion of December 11, 1970. Forty-two negligence actions for wrongful death, personal injury and property damage arose out of that explosion. Various aspects of the cases are reported in Gannon Personnel Agency, Inc. v. City of New York, 57 A.D.2d 538, 394 N.Y.S.2d 5; 103 Misc.2d 60, 425 N.Y.S.2d 446, aff'd 81 A.D.2d 755, 438 N.Y.S.2d 661, rev'd sub nom. O'Connor v. City of New York, 58 N.Y.2d 184, 460 N.Y.S.2d 485, 447 N.E.2d 33.

The 42 cases were tried jointly and resulted in interlocutory judgments of liability against the City of New York among others, which were affirmed by this Court on April 9, 1981, Gannon Personnel Agency, Inc. v. City of New York supra, 81 A.D.2d 755, 438 N.Y.S.2d 661. Although the City was held to be only 4% liable, the insolvency of some of the defendants and pre-final judgment settlements by others meant that the City would have to bear the largest share of any ultimate recovery. After the interlocutory judgments of liability, proceedings were taken separately to fix the amount of damages as to the particular plaintiffs.

After the damages in favor of the O'Connor plaintiffs were determined and a final judgment entered as to them on that case on March 5, 1982, the City took a direct appeal to the Court of Appeals, which reversed the O'Connor judgment on the issue of liability, and dismissed the complaint. O'Connor v. City of New York, supra, 58 N.Y.2d 184, 460 N.Y.S.2d 485, 447 N.E.2d 33.

In the meantime a trial was held on the issue of damages with respect to the McMahons (plaintiffs in the present case) which resulted in a final judgment (as amended December 6, 1983) in favor of the McMahons against the City of $416,924 on the personal injury claim of the estate of the deceased, Thomas McMahon, and $138,974 on his wife's claim for loss of consortium. That judgment was originally entered on May 19, 1982, a few days after the Court of Appeals had granted leave to appeal in the O'Connor case. The City appealed to this Court from the final judgment in the McMahon case. The City did not however take any further steps toward prosecuting the McMahon appeal during the pendency of the O'Connor appeal to the Court of Appeals. On February 23, 1983 the Court of Appeals reversed the O'Connor judgment and held the City not liable. Obviously the Court of Appeals ruling would be binding in all the cases arising out of the explosion in which the question was still open. Indeed in O'Connor the Court of Appeals reversed "the order of the Appellate Division brought up for review," i.e., the interlocutory judgment of liability in Gannon v. City of New York, supra, 81 A.D.2d 755, 438 N.Y.S.2d 661 that the City was liable to all plaintiffs including the McMahons.

The decision of the Court of Appeals in O'Connor was just two days before the expiration in the McMahon case of the nine-month period fixed by our Rules section 600.11(a)(3) (22 NYCRR) for perfecting appeals. Two days later on February 25, 1983 the City moved in the McMahon case for reargument of the decision of April 9, 1981, the interlocutory judgment of liability, on the basis of the decision of the Court of Appeals in the O'Connor case, or for an extension of time to perfect its appeal from the final judgment. This Court by order of June 2, 1983 denied the motion "without prejudice to applications for appropriate post-judgment relief in the Supreme Court in light of O'Connor v. City of New York, (58 N Y 2d 184) [460 N.Y.S.2d 485, 447 N.E.2d 33]."

Thereafter plaintiffs moved to dismiss the appeal in this Court for failure to prosecute under the nine-month rule, and this Court granted the motion on July 7, 1983.

On July 22, 1983 the City moved at Special Term to vacate the judgment in the McMahon case pursuant to CPLR 5015(a)(5) "based upon the reversal of a prior judgment upon which the within judgment was based." That motion was denied by Special Term and this appeal is from that denial.

It is clear that the final judgment in this case holds the City liable for over $550,000 damages in a case in which, as a matter of law as established by the O'Connor decision, the City should not be liable at all.

However, Special Term has held that the procedural history of the case has frozen the City into a position where it can no longer attack a judgment which should never have been rendered against it. We do not agree for these reasons:

At the time that the Court of Appeals rendered its decision in the O'Connor case, determining that the City was not liable for damages arising out of the Ann Street explosion, the McMahon case was still in the direct appeal process. In denying the City's motion for an extension of time and reargument of the order affirming the interlocutory judgment of liability, we explicitly said that our denial was "without prejudice to applications for appropriate post-judgment relief in the Supreme Court in light of O'Connor v. City of New York, (58 N Y 2d 184) There has never been a moment from the time of the explosion until today when the plaintiffs were not under legal notice that their claim of the City's liability, and any interlocutory or final judgments as to the City's liability, were still subject to review. Both the trial court and this Court have inherent power, as well as statutory power under CPLR 5015, to set aside a judgment on appropriate grounds.

The appeal from the final judgment in this case, which was still pending at the time of the decision in the O'Connor case, would have brought up for review the interlocutory judgments of liability (CPLR section 5501). It may be that under the express language of section 5501 this Court, having previously affirmed the interlocutory judgment of liability, could not again review that judgment. (But cf. Aridas v. Caserta, 41 N.Y.2d 1059, 1061, 396 N.Y.S.2d 170, 364 N.E.2d 835: "Every court retains a continuing jurisdiction generally to reconsider any prior intermediate determination it has made.") But clearly the Court of Appeals, never having previously reviewed the issue of liability in the McMahon case, could have done so on the appeal from the final judgment--as it did in the O'Connor case. To be sure such a procedure would have involved the rather cumbersome process of this Court having to hear the appeal and to affirm the final judgment which it knew to be wrong, and then granting leave to go to the Court of Appeals. Further, under Rule 600.14(a) of this Court, motions for reargument have to be made within 30 days after the appeal has been decided. (But cf. Matter of Supreme Burglar Alarm Corp. v. Kaplan, 75 A.D.2d 584, 426 N.Y.S.2d 573, aff'd 53 N.Y.2d 660, 438 N.Y.S.2d 999, 421 N.E.2d 119.) Here the motion for reargument was made 25 months after this Court's decision affirming the interlocutory judgment of liability. As noted above, this Court denied reargument and an extension of time to perfect the appeal. But it did so expressly without prejudice to applications for appropriate post-judgment relief in the Supreme Court in the light of O'Connor. Thereafter we dismissed the appeal.

The City availed itself of our "without prejudice" provision and made its motion in the Supreme Court for appropriate post-judgment relief. And Special Term denied that motion on the ground of our dismissal of the appeal.

By our dismissal of the appeal we obviously did not nullify the "without prejudice" provision of the order of June 2, 1983 denying extension and reargument. Indeed in her affidavit in connection with the motion to dismiss in this Court, plaintiff's attorney said: "Plaintiff is entitled to a dismissal of defendants' appeal by reason of the City's failure to comply with the time requirements for perfection of same as set by the rules of this Court. The City has clearly not prosecuted its appeal diligently and, accordingly, is properly left to whatever post-judgment relief it can obtain from the Supreme Court." The dismissal merely followed from the denial of the...

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