Monahan v. Fiore

• Decision Date: 16 June 1980
• Citation: 428 N.Y.S.2d 717,76 A.D.2d 884
• Parties: Deborah C. MONAHAN, an infant, etc., et al., Appellants, v. Fabian FIORE, Defendant, and Edward Klosowski et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 717

428 N.Y.S.2d 717

76 A.D.2d 884

Deborah C. MONAHAN, an infant, etc., et al., Appellants, v. Fabian FIORE, Defendant, and Edward Klosowski et al., Respondents.

Supreme Court, Appellate Division, Second Department.

June 16, 1980.

Bases, Russo, Lawrence, Ciovacco, Walsh & Feder, P. C., Garden City (Morton H. Feder, Garden City, of counsel), for appellants.

Tarnagelo, Totura & Hargous, Woodbury (Michael C. Russo, of counsel), for respondents.

Before MANGANO, J. P., and GIBBONS, RABIN and GULOTTA, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, etc., plaintiffs appeal from an order of the Supreme Court, Queens County, entered February 6, 1980, which denied their motion to restore this action to the trial calendar as against defendants Klosowski.

Order affirmed, with $50 costs and disbursements.

The instant action was dismissed in 1976 pursuant to CPLR 3404. In 1978 plaintiffs successfully moved to vacate the dismissal and restore the action to the trial calendar. On an appeal from that order by defendant Fiore, this court reversed and denied plaintiffs' motion (Monahan v. Fiore, 71 A.D.2d 914, 419 N.Y.S.2d 745). An appeal from the same order by codefendants Klosowski was dismissed as untimely.

The issue presented on the subject appeal by plaintiffs is whether our prior reversal inured to the benefit of codefendants Klosowski as well. Trial Term held, in effect, that it did, refusing to restore the action to the calendar as against said codefendants. We affirm.

Although the appeal of the Klosowskis from the prior restoral order was dismissed, substantial justice clearly requires that our reversal of said order and denial of plaintiffs' motion inure, as well, to the benefit of these "nonappealing" codefendants. Only in this way can defendant Fiore, the successful party on the prior appeal, be accorded complete relief without, at the same time, nullifying the rights of his codefendants to contribution from him via impleader (see CPLR 5522; cf. Statella v. Chuckrow Constr. Co., Inc., 28 A.D.2d 669, 281 N.Y.S.2d 215; Rome Cable Corp. v. Tanney, 21 A.D.2d 342, 250 N.Y.S.2d 304; 5 Am.Jur.2d, Appeal and Error, § 949; 4 N.Y.Jur.2d, Appellate Review, § 488).