Vander Veer v. Tyrrell

• Decision Date: 21 February 1968
• Citation: 287 N.Y.S.2d 228,29 A.D.2d 255
• Parties: Albert VANDER VEER, 2nd, Plaintiff-Respondent, v. Thomas I. TYRRELL, Willig & Brown, Inc., Robert K. Mix and Victor Comptometer Corp., Defendants-Respondents, and Albany County Club, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 228

287 N.Y.S.2d 228

29 A.D.2d 255

Albert VANDER VEER, 2nd, Plaintiff-Respondent, v. Thomas I. TYRRELL, Willig & Brown, Inc., Robert K. Mix and Victor Comptometer Corp., Defendants-Respondents and Albany County Club, Defendant-Appellant.

Supreme Court, Appellate Division, Third Department.

Feb. 21, 1968.

Cooper, Erving & Savage, Albany, (Harry Christenson, Albany, of counsel) for plaintiff-respondent.

Hesson, Ford & Grogan, Albany, (Thomas A. Ford, Albany, of counsel), for defendant Victor Comptometer Corp.

Carter & Conboy, Albany, (James S. Carter, Albany, of counsel), for defendant-appellant Albany Country Club.

Donohue, Bohl, Clayton & Komar, Albany, (Myron Komar, Albany, of counsel), for defendant Tyrrell.

Ainsworth, Sullivan, Tracy & Knauf, Albany, (James E. McHenry, Albany, of counsel), for defendant Willig & Brown.

Before GIBSON, P.J., and HERLIHY, REYNOLDS, AULISI and GABRIELLI, JJ.

REYNOLDS, Justice.

This is an appeal from that portion of an order of the Supreme Court, Albany County, granting the motions of defendants Thomas I. Tyrrell (Tyrrell), Willig & Brown, Inc. (Willig & Brown), Robert K. Mix (Mix) and Victor Comptometer Corp. (Victor) to dismiss the appellant's cross claims contained in its amended answer on the ground that they fail to state facts sufficient to constitute a cause of action over against them.

On October 3, 1964 Tyrell rented an electric golf cart from Mix, the golf professional for the appellant, for use on the club course. The cart involved had been manufactured by Victor, sold to Willig & Brown and leased in turn to appellant and Mix. While operating the cart on a path near the clubhouse, Tyrrell collided with the plaintiff, one Albert Vander Veer and the instant lawsuit ensued. In a previous case involving this same litigation we affirmed an order dismissing Tyrrell's cross claims against his co-defendants on the basis that Tyrrell could be found liable to Vander Veer only if he himself were actively negligent and that therefore any recovery-over was precluded (27 A.D.2d 958, 278 N.Y.S.2d 916). The instant case, however, cannot be so easily disposed of.

In determining the sufficiency of a cross-claimant's action it must be first noted that CPLR 3019 (subd. (b)) contains none of the restrictions as to subject matter present in its predecessor under the Civil Practice Act (compare CPA § 264). As Weinstein states:

'Even when the cross claim is of the type recognized by prior law, the sufficiency of the cross-claimant's action should not be determined exclusively by reference to the allegations in the original plaintiff's complaint as was frequently done under section 264 of the Civil Practice Act. If there is any possibility that the trial of the main action will establish that an action over exists, the cross-claim should not be dismissed.' (3 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3019.22.)

Accordingly, it is proper to allege therein a cause of action the existence of which depends on the outcome of the main action, and an indemnity cross claim is available even against a contention that it is premature (50 New Walden, Inc. v. Federal Ins. Co., 22 A.D.2d 4, 253 N.Y.S.2d 383; 5 Carmody-Wait 2d, New York Practice, § 30.78, p. 683). Not only is there a reluctance, therefore, to dismiss third-party complaints at the pleading stage (see, Sheridan v. City of New York, 27 A.D.2d 833, 278 N.Y.S.2d 456; 2 Weinstein-Korn-Miller, N.Y.Civ.Prac., par 1010.02), but an even greater reticence in dismissing a cross-complaint since the dismissal of a cross-complaint would necessarily be without prejudice and hence require another action to determine liability over when all the parties have already appeared together and presumably all the relevant issues have been presented and aired.

The cross-complaint, of course, must state a cause of action, and it is equally clear that if the original complaint could only be construed as charging the cross-claimant with active negligence, the cross-complaint must be dismissed (e.g., Bush Terminal Bldgs. v. Luckenbach S.S. Co., 9 N.Y.2d 426, 214 N.Y.S.2d 428, 174 N.E.2d 516). However, it is conversely true that if a complaint can be read to disclose any theory upon which the cross-claimant would be entitled to indemnity it should be upheld (Johnson v. Endicott-Johnson Corp., 278 App.Div. 626, 101 N.Y.S.2d 922; see 5 Carmody-Wait 2d, § 30.81, p. 687).

Before examining the cross claims here involved, we must first briefly examine the original complaint to place our discussion in the proper perspective. Vander Veer's original complaint can only be described as an attempt to touch all bases with respect to each defendant. For example there are six specific acts of negligence alleged against the appellant alone. In summary these involve improper construction and maintenance of the pathway upon which the accident occurred and failure to warn persons walking in the pathway of the danger of cart traffic. Then against both appellant and Mix there are eight separate allegations including placing the plaintiff in a position of danger without warning, failure to keep the cart involved in proper repair, repairing the cart in a defective and improper manner, failing to properly equip the cart with braking, steering and speed controls and necessary warning and safety devices, failing to properly inspect the cart, failing to warn Tyrrell of inherent dangers and defects in the cart and allowing Tyrrell use of a dangerous and defective cart. Willig & Brown receive only five specific charges which include failure to make proper repairs of the cart, improper repair, failure to properly equip the cart with braking, steering and speed control devices and failing to warn Tyrrell of the dangerous propensity and dangerous and defective condition of the cart. Tyrrell himself is charged with nine specific acts of negligence. These include failure to warn Vander Veer of danger, operating the cart while it was in an improper state of repair and without proper safety, warning, braking, steering and speed control devices, failure to inspect, and negligence in various ways in his operation of the cart. Finally there are five specific charges leveled at Victor including negligent manufacture and construction, failure to provide the proper equipment previously asserted against the other defendants, and failure to properly inspect. From the foregoing not only is the comprehensiveness of the allegations readily evident but it is also notable that the charges of negligence are in no way mutually exclusive as to each defendant.

An examination of appellant's six cross claims reveals that they assert causes of action founded upon the active-passive negligence dichotomy and/or breach of contract and/or breach of warranty. Special Term in granting the motions to dismiss found that liability over could not be premised upon an alleged breach of contract of warranty (cross claims second and fourth) because there was not an unequivocal contract of indemnity and that the cross claims based on indemnification (all except cross claim 5) could not be asserted because the prime complaint charged the appellant only with active negligence and could not be construed to assert liability for passive negligence. As to the fifth cross claim, for breach of contract in failing to procure comprehensive general liability insurance in the amount agreed upon, it was held that the submissions by Willig & Brown on the motion proved compliance as a matter of law.

It seems clear that there is no basis to support an allegation premised on an express contractual agreement for indemnification. Additionally, the breach of warranty theory charged against Victor and Willig & Brown in the second cross claim would be applicable only if appellant were passively negligent, as opposed to actively negligent, under the rationale expressed in our prior opinion (27 A.D.2d 958 at 959, 278 N.Y.S.2d 916 at 918). Therefore, in all of the cross claims, excluding the fifth, there is raised the crucial question of the active-passive negligence dichotomy.

It is clear that there are allegations of active negligence against the appellant contained in Vander Veer's complaint, and there is no doubt that if the jury finds, as charged, that the paths were negligently maintained and constructed by the...