Peskin v. Port of New York Authority

• Decision Date: 27 January 1959
• Citation: 16 Misc.2d 195,183 N.Y.S.2d 665
• Parties: William PESKIN v. PORT OF NEW YORK AUTHORITY, Cauldwell-Wingate Co., Inc., Ment Bros. Iron Works Co., and Eastern Air Lines Inc.
• Court: New York Supreme Court

Page 665

183 N.Y.S.2d 665

16 Misc.2d 195

William PESKIN v. PORT OF NEW YORK AUTHORITY, Cauldwell-Wingate Co., Inc.,

Ment Bros. Iron Works Co., and Eastern Air Lines Inc.

Supreme Court, Trial Term, Queens County, Part VII.

Jan. 27, 1959.

David H. Perlman, New York City, for plaintiff (Thomas Cusack, New York City, of counsel).

Rudser & Fitzmaurice, New York City, for defendants Port of New York Authority, Cauldwell-Wingate Co., Inc. and Eastern Air Lines Inc. (Joseph Onorato, New York City, of counsel).

William Kenney, New York City, for defendant Ment Bros. Iron Works Co. (Francis X. McHugh, New York City, of counsel).

J. IRWIN SHAPIRO, Justice.

During the trial the court dismissed plaintiff's complaint against the defendant Eastern Air Lines Inc. The jury rendered a verdict for $15,000 against the remaining three defendants, The Port of New York Authority (Authority), Cauldwell-Wingate Co., Inc. (Cauldwell) and Ment Bros. Iron Works Co. (Ment).

The jury by its verdict has determined that the plaintiff was injured through the joint negligence of said three defendants.

The defendants Authority and Cauldwell, by their pleadings, cross-claimed for judgment over against the defendant Ment in the event they should be held liable to the plaintiff.

By stipulation of all parties, the issues of law and fact raised by the cross-claims were not submitted to the jury but were left for determination by the court in light of the verdict which the jury would render.

The plaintiff, as a basis for recovery, contended that the door of the varsol pit here in question was improperly constructed because there was not enough of a tilt of the door away from the pit, by reason of the fact that the two chains holding the door in place when it was open were not long enough and because one of the two chains was placed in such a position on the ladder side of the pit that upon any unintentional, inadvertent and slight touch the door, weighing some 250 pounds, would be caused to fall upon anyone descending into or ascending from the pit.

The door and the chains were manufactured and fabricated and attached to the varsol pit by the defendant Ment under a contract with defendant Cauldwell, the general contractor, which in turn had a contract for all of the work with defendant Authority as the operator of the Idlewild Airport.

The plans and specifications for the door on this varsol pit provided for only one chain and that on the side opposite to the ladder rungs which anyone would have to use on descending into or ascending from the pit. It was the chain on the rung side with which plaintiff's hand or arm accidently came in contact when he was descending into the pit and which caused the door to shut on and fracture his arm.

Upon this state of facts, the defendants Authority and Cauldwell contend that the dangerous condition which resulted in plaintiff's injuries was created not by them but by defendant Ment and, that therefore, they should have judgment over.

In short, the substance of their contention is that they have been cast in damages for their passive negligence and by reason of an affirmative act of negligence on the part of the defendant Ment, and that the law is well settled that 'a primary or principal wrongdoer is responsible for his negligent act, not only to the person directly injured, but also to one indirectly harmed by being cast in damages by operation of law for the wrongful act.' (Tipaldi v. Riverside Memorial Chapel, Inc., 273 App.Div. 414, 78 N.Y.S.2d 12, 17, affirmed 298 N.Y. 686, 82 N.E.2d 585; McFall v. Campagnie Maritime Belge, 304 N.Y. 314, 328, 107 N.E.2d 463, 470.

It is not necessary for the purposes of this case to engage in a semantic discussion to show that the words 'passive negligence' have no well defined meaning and have been variously and diversely construed (Seiden v. Savings & Loan Association of Sunnyside, 10 Misc.2d 720, 172 N.Y.S.2d 403), for even in the case of so-called passive negligence a third-party plaintiff, or, as here, a cross-claiming defendant, may not recover over if 'after discovery of the danger, he acquiesced in the continuation of the condition' (Restatement, Restitution, sec. 95), since he is then held to be in pari-delicto with the original and affirmative wrongdoer. Ruping v. Great Atlantic and Pacific Tea Co., 283 App.Div. 204, 126 N.Y.S.2d 687; Stabile v. Vitullo, 280 App.Div. 191, 112 N.Y.S.2d 693; Brady v. Stanley Weiss & Sons Inc., 6 App.Div.2d 241, 175 N.Y.S.2d 850, 853.

The two cross-claiming defendants recognize the existence of this rule but they contend that it applies to defeat a recovery over only 'upon a finding of actual notice of the dangerous condition' and that 'obviously, in a case where there is no actual notice but there is only constructive notice because of failure to discover that which could reasonably have been discovered, the defendant cannot be charged with acquiescence in the dangerous condition as a bar to indemnity.' (Ruping, supra [283 App.Div. 204, 126 N.Y.S.2d 690.].)

We need not pause to consider whether, as a matter of pure legal...