Weinberg v. Wing

• Decision Date: 06 July 1961
• Citation: 217 N.Y.S.2d 927,30 Misc.2d 755
• Parties: Samuel WEINBERG, Plaintiff, v. Thomas H. WING, Quong Lee, Tom Hong, Hon S. Hee, Wong Lung Hen, Hom Sing Yeck, doing business as Old Jade, Defendants. Thomas H. WING, Quong Lee, Tom Hong, Hon S. Hee, Wong Lung Hen, Hom Sing Yeck, doing business as Old Jade, Third-Party Plaintiffs, v. EAST 170 STREET REALTY CORP., Third-Party Defendant.
• Court: New York Supreme Court

Page 927

217 N.Y.S.2d 927

30 Misc.2d 755

Samuel WEINBERG, Plaintiff, v. Thomas H. WING, Quong Lee, Tom Hong, Hon S. Hee, Wong Lung

Hen, Hom Sing Yeck, doing business as Old Jade,

Defendants.

Thomas H. WING, Quong Lee, Tom Hong, Hon S. Hee, Wong Lung

Hen, Hom Sing Yeck, doing business as Old Jade, Third-Party Plaintiffs, v. EAST 170 STREET REALTY CORP., Third-Party Defendant.

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

July 6, 1961.

David Sherman, New York City, for plaintiff.

Bianco & Walters, New York City (Harry J. Walters, Jr., New York City, of counsel), for defendants and third-party plaintiffs.

Bernard Helfenstein, Brooklyn (Herbert Minster, Brooklyn, of counsel), for third-party defendant.

CHARLES A. LORETO, Justice.

Motion to dismiss third-party complaint for legal insufficiency is denied. Since the instant application, the plaintiff has served an amended complaint, which now joins the third-party defendant as a defendant in his original action. The service of the said amended complaint even at this stage of the proceedings is timely made (Civil Practice Act, § 193-a; Aprea v. City of New York, 11 Misc.2d 645, 171 N.Y.S.2d 884). The amended complaint contains charges of active and passive negligence against both defendants.

The Appellate Division of the First Department recognized in Crawford v. Blitman Construction Corp., 1 A.D.2d 398, 150 N.Y.S.2d 387, that there was a difference of degree of liability between a tort-feasor, who was 'actively' negligent because of creating a condition and a 'passively' negligent tort-feasor, who was merely guilty of a failure to inspect or discover a condition. The court stated:

'The key to the analysis is that we are dealing with relative terms. There is no absolute 'active' negligence. There need be no absolute degrees of liability among joint wrongdoers. * * * Involved is the relationship of the parties, their contractual or other responsibility to each other, and the degree of wrongfulness indicated by the commission or omission which resulted in the accident. These factors will determine the relative liability as between any two parties in the sequence of events.' 1 A.D.2d at page 400, 150 N.Y.S.2d at page 389.

The court recognized:

'In any event, the nature of the several responsibilities, as well as the degrees of wrongdoing, are not determinable on the pleadings alone. Development of the facts upon a trial is required.' 1 A.D.2d at page 401, 150 N.S.Y.2d at page 390.

Old Jade may possibly be held liable to plaintiff Weinberg for failure to set up safeguards or to warn plaintiff of the condition, after having constructive notice of the condition.

It is well settled law that before acquiescence in the continuance of a dangerous condition puts the indemnitee in pari delicto, the notice must be actual as distinguished from constructive. Is such notice is merely constructive, the primary wrongdoer, whose misconduct created the condition, should indemnify the one who was passively negligent (Employers' Liability Assurance Corp. v. Empire City...