Penn Central Transp. Co. v. Singer Warehouse & Trucking Corp.

• Decision Date: 23 February 1982
• Citation: 86 A.D.2d 826,447 N.Y.S.2d 265
• Court: New York Supreme Court — Appellate Division
• Parties: PENN CENTRAL TRANSPORTATION COMPANY, Plaintiff, v. SINGER WAREHOUSE & TRUCKING CORP., Defendant. SINGER WAREHOUSE & TRUCKING CORP., Plaintiff-Appellant, v. CONSOLIDATED RAIL CORPORATION, Cross-Claiming Defendant-Appellant, Hunts Point Industrial Park, et al., Defendants-Respondents, Consolidated Edison Company of New York, Inc., Defendant, and Penn Central Transportation Company, etc., Cross-Claiming Defendant-Appellant.

Page 265

447 N.Y.S.2d 265

86 A.D.2d 826

PENN CENTRAL TRANSPORTATION COMPANY, Plaintiff, v. SINGER WAREHOUSE & TRUCKING CORP., Defendant.

SINGER WAREHOUSE & TRUCKING CORP., Plaintiff-Appellant, v. CONSOLIDATED RAIL CORPORATION, Cross-Claiming Defendant-Appellant, Hunts Point Industrial Park, et al., Defendants-Respondents, Consolidated Edison Company of New York, Inc., Defendant, and Penn Central Transportation Company, etc.,

Cross-Claiming Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Feb. 23, 1982.

W. P. Jones, New York City, for plaintiff and cross-claiming defendant-appellant.

H. Birnbaum, New York City, for defendant and plaintiff and appellant.

J. Nurnberg, New York City, for defendants-respondents.

Before KUPFERMAN, J.P., and SANDLER, SULLIVAN, CARRO and FEIN, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County, entered July 22, 1981, which granted reargument and adhered to its original determination, deemed as renewal, and on renewal, order dismissing complaint and cross-complaints unanimously reversed, on the law, with costs and complaint and cross-complaints reinstated.

Appeal from Order, Supreme Court, New York County, entered October 1, 1980, which, inter alia, dismissed the complaint of Singer Warehouse & Trucking Corp. (Singer) against Abraham Rodolitz (Rodolitz) and dismissed the cross-complaints of Consolidated Rail Corporation (Conrail) and Penn Central Transportation Company (Penn Central) against Rodolitz, dismissed as academic.

The trial court dismissed the complaint and cross-complaints after opening statements to the jury and offers of proof on argument. Numerous cases attest to the strict standards imposed upon a motion to dismiss the complaint under such circumstances:

"It is well settled that no complaint should be dismissed on the opening statement of counsel unless it appears beyond doubt that no question of fact is involved; that accepting as true all the facts stated on the opening and resolving in plaintiff's favor all the material facts in issue, plaintiff nevertheless is precluded from recovery as a matter of law; and that if there be any doubt as to a defendant's right to a dismissal on the law, plaintiff should be put to his proof." (Runkel v. City of New York, 282 A.D. 173, 175, 123 N.Y.S.2d 485)

"Unless it is obvious that under no circumstances and in no view of the testimony that might be adduced can the plaintiff prevail, the practice of dismissal on the opening of counsel alone should not be encouraged." (Diglio v. Rosoff Subway Construction Co., 242 A.D. 643, 272 N.Y.S. 137)

See also: Hoffman House v. Foote, 172 N.Y. 348, 350, 65 N.E. 169, 171, setting forth criteria for dismissal of a complaint after opening statements; Rivera v. Board of Education, 11 A.D.2d 7, 201 N.Y.S.2d 372; Becker v. Askin, 36 A.D.2d 520, 317 N.Y.S.2d 720; Stines v. Hertz Corporation, 45 A.D.2d 750, 751, 356 N.Y.S.2d 649; Kreuger v. Kreuger, 78 A.D.2d 692, 432 N.Y.S.2d 518.

Based upon the existence of issues of fact, unresolved by this record, it was error to dismiss the complaint and cross-complaints after openings.

This case involved the liability of defendant-respondent Rodolitz for the creation of a continuing nuisance while he was the equitable owner, as contract vendee, of property which was adjacent to a warehouse and access driveway located at the foot of E. 149th Street and the East River in Bronx County. There were drains under the driveway, emptying into the river. In 1966 Rodolitz had the land filled in, which caused the drains to be blocked, rendering the access driveway, along which there was a right of ingress and egress to the neighboring businesses, practically unusable. In 1967, the fee to the property was conveyed to defendant-respondent Hunts Point Industrial Park, Inc. (Hunts Point), a corporation of which Rodolitz was president and sole stockholder and which continued to maintain the nuisance. In 1973, Penn Central sued Rodolitz for damages for creating the nuisance. During the pendency of the action, the Singer warehouse and trucking business was sold. Penn Central, the warehouse owner, signed a new lease with the right of ingress and egress along the access driveway, but, allegedly, neither it nor the former owners of Singer made the new owners aware of the condition of the driveway. The 1973 Penn Central v. Rodolitz action was tried in 1976 and resulted in a non-jury verdict...