Pellegrino v. New York City Transit Authority

• Decision Date: 12 November 1991
• Citation: 576 N.Y.S.2d 154,177 A.D.2d 554
• Parties: John PELLEGRINO, et al., Plaintiffs, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant Third-Party Plaintiff-Respondent; Railroad Maintenance Corporation, Inc., et al., Third-Party Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 154

576 N.Y.S.2d 154

177 A.D.2d 554

John PELLEGRINO, et al., Plaintiffs, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant Third-Party Plaintiff-Respondent Railroad Maintenance Corporation, Inc., et al., Third-Party Defendants-Appellants.

Supreme Court, Appellate Division Second Department.

Nov. 12, 1991.

James M. Leonard, New York City, for third-party defendants-appellants.

Albert C. Cosenza, Brooklyn (Lawrence Heisler and Lawrence A. Silver, of counsel), for defendant third-party plaintiff-respondent.

Before EIBER, J.P., and ROSENBLATT, MILLER and RITTER, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the third-party defendants appeal from a judgment of the Supreme Court, Kings County (Lebowitz, J.), entered June 28, 1989, which, following a jury verdict determining that the New York City Transit Authority was 25% at fault in the happening of the accident, Randel Construction Services Corp., Inc. was 25% at fault in the happening of the accident and the plaintiff John Pellegrino was 50% at fault in the happening of the accident, directed the third-party defendant Railroad Maintenance Corporation, Inc., to indemnify the New York City Transit Authority, pursuant to an indemnification agreement contained in the contract between them, for the principal sum of $2,500,000, for which the New York City Transit Authority had settled the plaintiff's claim, according to the terms of a stipulation of settlement agreed to by all parties.

ORDERED that the judgment is affirmed, with costs.

On February 2, 1983, the plaintiff John Pellegrino, a crane operator employed by Randel Construction Services Corp., Inc. (hereinafter Randel), a subcontractor of the third-party defendant Railroad Maintenance Corporation, Inc. (hereinafter RMC), was injured on the job site when he was hit by a New York City Transit Authority (hereinafter the TA) train on the elevated subway tracks between the Kings Highway and Avenue M stations on the Brooklyn IND line. On April 16, 1987, the TA settled the plaintiffs' claim against it for $2,500,000.

The TA thereafter demanded indemnification from the contractor RMC, pursuant to a contract which provided that "[t]he Contractor shall be solely responsible for all personal injuries * * * to persons (including, but not limited to, employees of the Contractor and subcontractors and employees of the City or the Authority) * * * occurring on account of or in connection with the performance of the work here under or sustained by any employee of the Contractor, subcontractor, City or Authority * * * other persons while at the site of the work and shall indemnify and save harmless the City, [and] the Authority * * * from loss and liability upon any and all claims on account of such injuries to persons * * * and from all costs and expenses in suits which may be brought against the City [and] the Authority * * * on account of any such injuries to persons * * * irrespective of the actual cause of the accident, but excepting loss and liability resulting from accidents due solely to the negligence of the City [or] the Authority * * * their respective agents, servants or employees" (Section 11[a] of Contract # PB073355). The contract at issue also provided: "If the Contractor shall cause any part of this contract to be performed by a subcontractor, the provisions of this contract shall apply to such subcontractor and his officers, agents and employees in all respects as if he and they were employees of the Contractor; and the Contractor shall not be in any manner thereby discharged from his obligations and liabilities hereunder, but shall be at fault hereunder for all acts and negligence of the subcontractor, his officers, agents and employees as if they were employees of the Contractor" (Section 22[a].

At trial, the only issue submitted to the jury was the relative negligence of the TA, Randel, and Pellegrino. The jury determined that there were three concurring causes of the accident: Pellegrino was found to be negligent and 50% at fault for the happening of the accident, while the TA and Randel were each found to be negligent and 25% at fault.

On appeal, the third-party defendants contend that the attribution of 25% of the fault to Randel is not supported by the evidence, and that for various reasons the indemnification provision in the contract should be held unenforceable. The third-party defendants also complain that the trial court erred in refusing to permit them to amend their answer to include the defenses of "coercion" and "release", and that it further erred in declining to submit to the jury the issue of the validity of the indemnification clause and the TA's settlement with Pellegrino. We find the third-party defendants' arguments to be devoid of merit.

"For a court to conclude as a matter of law that a jury verdict is not supported by sufficient evidence * * * [i]t is necessary to first conclude that there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial" (Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145; O'Boyle v. Avis Rent-A-Car System, Inc., 78 A.D.2d 431, 435 N.Y.S.2d 296). There was undisputed evidence adduced at the trial that although Randel sent its employees to work on the TA tracks every day, it provided them with no instruction on safety, and it did not require them to wear brightly-colored safety vests. Indeed, although TA employees were not permitted on the tracks without their fluorescent orange vests, Randel employees "never wore them". Pellegrino concedes the accident could have been avoided had he crossed the tracks instead of panicking and attempting to outrun the train. A reasonable interpretation of the evidence is that Pellegrino's poor choice resulted from Randel's failure to provide safety instruction. A rational jury could therefore have concluded that Randel failed in its basic duty to exercise that degree of care "which a reasonab[ly] prudent person would have exercised under the same circumstances", that Randel should have provided safety instruction and should have at least adopted the same rules for its employees' safety that the TA had instituted for its workers (Reed v. Davis, 249 N.Y. 35, 39-40, 162 N.E. 576), and that its failure to do so constituted a breach of its duty of ordinary care, which was a proximate cause of Pellegrino's accident.

In addition, paragraph 11(a) of RMC's contract with the TA on its face unambiguously requires RMC to indemnify the TA for job-related damages caused by negligence, unless that negligence was the TA's alone. Here, Pellegrino was found to have been 50% at fault, while Randel was 25% at fault. Since the verdict against Randel stands, we need not reach the question of...