Nivens v. New York City Housing Authority

• Decision Date: 12 January 1998
• Citation: 246 A.D.2d 520,667 N.Y.S.2d 415
• Parties: , 1998 N.Y. Slip Op. 147 James NIVENS, Respondent, v. NEW YORK CITY HOUSING AUTHORITY, Defendant Third-Party Plaintiff-Respondent-Appellant; Otis Elevator Company, Third-Party Defendant-Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 415

667 N.Y.S.2d 415

246 A.D.2d 520, 1998 N.Y. Slip Op. 147

James NIVENS, Respondent, v. NEW YORK CITY HOUSING AUTHORITY, Defendant Third-Party Plaintiff-Respondent-Appellant Otis Elevator Company, Third-Party Defendant-Appellant-Respondent.

Supreme Court, Appellate Division Second Department.

Jan. 12, 1998.

Quirk and Bakalor, P.C., New York City (Richard H. Bakalor, Loretta A. Redmond, Timothy J. Keane, and Donna H. Bakalor, of counsel), for appellant-respondent.

Michael E. Pressman, New York City (Steve H. Cohen, of counsel), for respondent-appellant.

Before BRACKEN, J.P., and ROSENBLATT, COPERTINO and LUCIANO, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the third-party defendant Otis Elevator Company appeals (1) from an interlocutory judgment of the Supreme Court, Kings County (Schneier, J.), dated April 19, 1996, which, after a trial on the issue of liability only, and upon a jury verdict finding the plaintiff 20% at fault, the defendant third-party plaintiff New York City Housing Authority 60% at fault, and the third-party defendant Otis Elevator Company 20% at fault in the happening of the accident, and upon the application of the defendant third-party plaintiff New York City Housing Authority, awarded judgment in favor of the defendant third-party plaintiff New York City Housing Authority and against it on the third-party complaint for indemnification, (2) as limited by its brief, from so much of a judgment of the same court, entered May 6, 1996, which, upon a jury verdict in favor of the plaintiff in the principal sum of $71,600, is in favor of the New York City Housing Authority and against it on the third-party complaint for indemnification of the 60% of the verdict attributable to the New York City Housing Authority, and (3), as limited by its brief, from so much of an order of the same court, dated July 1, 1996, as denied its motion to set aside so much of the verdict as found it to be 20% at fault in the happening of the accident, and for judgment in its favor as a matter of law. The defendant third-party plaintiff New York City Housing Authority cross-appeals from the judgment entered May 6, 1996.

ORDERED that the cross appeal is dismissed for failure to perfect the same in accordance with the rules of this court (22 NYCRR 670.8[c] ), and it is further,

ORDERED that the appeal from the order dated April 19, 1996, is dismissed, and it is further,

ORDERED that the judgment entered May 6, 1996, is reversed insofar as appealed from, the last decretal paragraph thereof is vacated and a decretal paragraph dismissing the third-party complaint is substituted therefor, and it is further ORDERED that the appeal from the order dated July 1, 1996, is dismissed as academic, and it is further,

ORDERED that the third-party defendant, Otis Elevator Company, is awarded one bill of costs payable by the defendant third-party plaintiff New York City Housing Authority.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501[a][1] ).

On March 15, 1986, the plaintiff sustained an injury to his finger when the door of an elevator which had become stuck slammed shut as he tried to pull it closed. The elevator was located on premises...