Nicholas v. Consolidated Edison Co. of New York

• Decision Date: 30 April 1984
• Citation: 475 N.Y.S.2d 100,100 A.D.2d 957
• Parties: Eugenie NICHOLAS, as Administratrix, etc., Plaintiff-Appellant, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, Defendant third-party Plaintiff-Respondent; The City of New York, Defendant third-party Defendant-Respondent, et al., Defendants; Erie Conduit Corp., third-party Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 100

475 N.Y.S.2d 100

100 A.D.2d 957

Eugenie NICHOLAS, as Administratrix, etc., Plaintiff-Appellant, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, Defendant

third-party Plaintiff-Respondent;

The City of New York, Defendant third-party

Defendant-Respondent, et al., Defendants;

Erie Conduit Corp., third-party Defendant-Appellant.

Supreme Court, Appellate Division,

Second Department.

April 30, 1984.

I. Jesse Winter, New York City (Cocoran & Brady, P.C., Robert D. Brady, New York City, of counsel), for plaintiff-appellant.

Berel, Navarra & Mullen, P.C., New York City (Brian P. Mullen and John DeMaio, New York City, of counsel), for third-party defendant-appellant.

Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City (Carolyn E. Demarest and Bernard Abel, New York City, of counsel), for defendant third-party defendant-respondent.

Before MANGANO, J.P., and BRACKEN, O'CONNOR and NIEHOFF, JJ.

MEMORANDUM BY THE COURT.

In a wrongful death action, plaintiff Eugenie Nicholas and third-party defendant Erie Conduit Corporation separately appeal from an order of the Supreme Court, Kings County, dated February 1, 1982, which denied their motion, in effect, to vacate a judgment of the same court, dated September 16, 1981.

Order reversed, on the law, with one bill of costs, motion granted, and the judgment of the Supreme Court, Kings County, dated September 16, 1981, is vacated to the extent of deleting the final paragraph thereof and substituting the following provisions: (1) that the plaintiff recover of the defendants Consolidated Edison Company of New York, Inc. and the City of New York the principal sum of $365,000; (2) that third-party defendant Erie Conduit Corporation must indemnify defendant third-party defendant the City of New York for all liability in this case; (3) that defendant third-party defendant the City of New York and defendant third-party plaintiff Consolidated Edison Company of New York, Inc., upon full satisfaction of the award to plaintiff, shall recover of the other the excess of any amount actually paid by either of them to plaintiff in excess of its proportionate share of the principal sum of $365,000; and (4) that Consolidated Edison Company of New York, Inc. and Erie Conduit Corporation, upon full satisfaction of the award to plaintiff, shall recover of the other, the excess of any amount actually paid by each of them to plaintiff in excess of its proportionate share of the principal sum of $365,000.

This is a wrongful death action arising from the electrocution death of plaintiff's decedent, who was an employee of Erie Conduit Corp. The parties settled the case for the principal sum of $365,000 and agreed to permit the jury to apportion culpability among the employer, Consolidated Edison Company of New York (Con Edison) and the City of New York. The jury answered the submitted interrogatories by absolving plaintiff's decedent of any contributory negligence, finding the employer, Con Edison and the city liable for decedent's death, and apportioning the contributory fault of each as 60%, 10% and 30%, respectively. The trial court then granted the city's motion to declare the employer Erie Conduit Corp. contractually obligated to indemnify it for any loss.

The judgment dated September 16, 1981, did not, however, set forth the parties' respective rights and liabilities as determined by the jury's verdict and the court's ruling with respect to the city's motion for indemnification. Instead, the trial court, in effect, netted out the liabilities so that the city was absolved from any liability to plaintiff or the culpable parties, Con Edison was held liable in contribution only for its proportionate share of the entire $365,000 sum, and the employer was held liable in contribution for both its and the city's proportionate shares of that entire sum.

Accordingly, the employer, joined by plaintiff, moved to "resettle" the judgment. The court denied the motion, and this appeal ensued from the resulting order.

Clearly, the judgment signed by the trial court improperly...