Wood v. City of New York
| Decision Date | 20 April 1972 |
| Parties | Thomas E. WOOD, Plaintiff, v. The CITY OF NEW YORK, Defendant, Edward T. Zielinski, Defendant-Respondent, Frederick W. Pomerenke et al., etc., Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
J. Nielsen, New York City, for defendant-respondent.
H. Minster, Brooklyn, for defendants-appellants.
Before STEVENS, P.J., and McGIVERN, MARKEWICH, TILZER and EAGER, JJ.
Order, Supreme Court, New York County, entered February 26, 1971, dismissing cross-complaint against defendant, Zielinski, unanimously reversed, on the law, without costs and without disbursements, and the motion to dismiss cross-claim is denied.
The plaintiff had complained that the co-defendants had sold intoxicating liquor to Zielinski while he was intoxicated, and so violated the Alcoholic Beverage Control Law ( § 65); the co-defendants cross-claimed against Zielinski, the alleged perpetrator of the plaintiff's injuries. Special Term granted motion to dismiss the cross-complaint, citing Yamonaco v. Murphy, 38 Misc.2d 585, 236 N.Y.S.2d 452.
In reversing, we do so on the authority of Dole v. Dow Chemical Company, 30 N.Y.2d 143, 148--149, 331 N.Y.S.2d 382, 282 N.E.2d 288. In this case, the Court of Appeals has, in effect, departed from the hitherto honored rules pertaining to active-passive dichotomy and enunciated new guidelines based on a shared responsibility in apportioning liability among parties involved together in causing damage by negligence. Said the court:
Accordingly, we reverse and deny the motion to dismiss the cross-claim. There will be no costs or disbursements, as the opinion of the Court of Appeals was subsequent to the submission at Special Term.
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