Tuffarella v. Erie R. Co.

• Decision Date: 28 February 1962
• Citation: 33 Misc.2d 1040,226 N.Y.S.2d 87
• Parties: Anthony TUFFARELLA, Plaintiff, v. ERIE RAILROAD COMPANY, Defendant. ERIE RAILROAD COMPANY, Third-Party Plaintiff, v. STAR CORRUGATED BOX COMPANY, Third-Party Defendant.
• Court: New York Supreme Court

Page 87

226 N.Y.S.2d 87

33 Misc.2d 1040

Anthony TUFFARELLA, Plaintiff, v. ERIE RAILROAD COMPANY, Defendant.

ERIE RAILROAD COMPANY, Third-Party Plaintiff, v. STAR CORRUGATED BOX COMPANY, Third-Party Defendant.

Supreme Court, Special Term, Nassau County, Part I.

Feb. 28, 1962.

Carl J. Moskowitz, New York City, for plaintiff.

Davis, Polk, Wardwell, Sunderland & Kiendl, New York City, for third-party plaintiff.

Walter C. Marshall, Lynbrook, for third-party defendant.

BERNARD S. MEYER, Justice.

Plaintiff, while riding in a truck owned by third-party defendant Star Corrugated Box Company, was injured when that truck collided at a grade crossing in New Jersey with a train operated by defendant-third party plaintiff Erie Railroad Company. Star's motion to dismiss the third-party complaint was granted, but on appeal that determination was reversed, the Appellate Division concluding (10 A.D.2d 525, 531, 203 N.Y.S.2d 468, 474):

'Since the statutory right to contribution is regarded in New Jersey as being a substantive right and since it may there be enforced under their procedural rule of court, we apprehend that we should permit its enforcement here under our substantially similar procedural provision (Civ.Prac.Act, § 193-a, subd. 1). The accident happened in New Jersey, and, save for matters of purely procedural nature, the law of that State is applicable unless it can be shown that it offends in some way our public policy.

A motion for leave to appeal was dismissed by the Court of Appeals (8 N.Y.2d 1040, 206 N.Y.S.2d 820). Thereafter Star moved for leave to amend its answer to assert, as an affirmative defense, that plaintiff was a fellow-employee of the operator of the truck and was, therefore, barred from recovery against Star by § 29, subd. 6 of the New York Workmen's Compensation Law . Leave to amend was denied on the ground that the proposed defense was legally insufficient (27 Misc.2d 638, 211 N.Y.S.2d 351). Star now moves for summary judgment on the third-party complaint, supporting its motion by an affidavit (which is not controverted) that plaintiff and the truck driver were both employees of Star and arguing that contribution is foreclosed by the exclusivity provision of either the New York Workmen's Compensation Law (§ 11) or the New Jersey Compensation statute (N.J.S.A. 34:15-8). Erie opposes, both on the merits and on the ground that the decision denying leave to amend constitutes the law of the case. The motion is granted.

New York recognizes no right of contribution between joint tortfeasors who are not also joint judgment debtors. The basis of the third-party claim is, therefore, (as the above quotation from the Appellate Division's decision makes clear) the substantive right to contribution accorded by the New Jersey Joint Tortfeasor's Contribution Law (N.J.S.A. 2A:53-1 et seq.). That statute conditions the right to contribution upon a demonstration not only of joint wrongdoing but of common liability. New Jersey has therefore denied contribution where the plaintiff was the sponse of the third-party defendant at the time of the injury and thus disabled by coverture, Kennedy v. Camp, 14 N.J. 390, 102 A.2d 595; Guerriero v. U-Drive-It Co. of New Jersey, 22 N.J.Super. 588, 92 A.2d 140; and where plaintiff and third-party defendant were married after the accident, but before institution of suit, Tomkovich v. Public Service Coordinated Transport, 61 N.J.Super, 270, 160 A.2d 507, but not where the marriage occurred after judgment, Pennsylvania Greyhound Lines v. Rosenthal, 14 N.J. 372, 102 A.2d 587, the rationale being that in the first and second cases common liability did not exist when the action was begun. Similarly, the absence of common liability prevents contribution when the relationship between the plaintiff and third-party defendant at the time of the injury is employer-employee, Farren v. New Jersey Turnpike Authority, 31 N.J.Super. 356, 106 A.2d 752; Public Service Electric & Gas Company v. Waldroup, 38 N.J.Super. 419, 119 A.2d 172; see Yearicks v. City of Wildwood, 23 N.J.Super. 379, 92 A.2d 873; Hagen v. Koerner, 64 N.J.Super. 580, 166 A.2d 784. Additional expression of the common liability requirement by New Jersey courts is to be found in Sattelberger v. Telep, 14 N.J. 353, 102 A.2d 577, 584; Adler's Quality Bakery, Inc. v. Gaseteria, Inc., 32 N.J. 55, 159 A.2d 97, 81 A.L.R.2d 1041; Cooper v. Philadelphia Dairy Products Co., 34 N.J.Super. 301, 112 A.2d 308; Zotta v. Otis Elevator Company, 64 N.J.Super. 344, 165 A.2d 840, 842; and see Larson, Workmen's Compensation Law, § 76.21, and Annotation 53 A.L.R.2d 977.

The instant decision turns, therefore, on whether plaintiff had an enforceable cause of action against both Erie and Star at the time of the accident. Whether the existence of a cause of action is to be determined under the law of New Jersey (see Restatement, Conflict of Laws, § 401) or of New York (see Moretz v. General Electric Company, D.C., 170 F.Supp. 698, 704, rev. on other grounds, 4 Cir., 270 F.2d 780) is of no moment, for under neither law is there common liability upon which third-party plaintiff can predicate a claim for contribution. The New Jersey employer-employee cases have already been referred to. The New York cases upon which third-party plaintiff relies are Westchester Lighting Co. v. Westchester County Small Estates Corp., 278 N.Y. 175, 15 N.E.2d 567, and Tabor v. Stewart, 277 App.Div. 1075, 100 N.Y .S.2d 697. Far from holding that there is any common liability on the part of an employer and a negligent third party, those cases hold that notwithstanding that W.C.L. § 11 protects an employer against a suit by his employee, he may under proper circumstances, be required to indemnify the...