Zito v. 241 Church Street Corp.

• Decision Date: 04 January 1996
• Parties: Phyllis M. ZITO, Plaintiff-Respondent-Appellant, v. 241 CHURCH STREET CORP., et al., Defendants-Appellants-Respondents/Third-Party-Plaintiffs-Appellants, v. CITY OF NEW YORK HUMAN RESOURCES ADMINISTRATION, Third-Party-Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 40

636 N.Y.S.2d 40

223 A.D.2d 353

Phyllis M. ZITO, Plaintiff-Respondent-Appellant, v. 241 CHURCH STREET CORP., et al., Defendants-Appellants-Respondents/Third-Party-Plaintiffs-Appellants, v. CITY OF NEW YORK HUMAN RESOURCES ADMINISTRATION,

Third-Party-Defendant-Respondent.

Supreme Court, Appellate Division First Department.

Jan. 4, 1996.

A.J. Wulwick, for Zito.

M. Majewski, for 241 Church Street Corp.

D.R. Douglas, for City of New York Human Resources Admin.

Before SULLIVAN, J.P., and WALLACH, RUBIN, ROSS and NARDELLI, JJ.

MEMORANDUM DECISION.

Judgment of the Supreme Court, New York County (Edward A. Rath, J.), entered July 1, 1994, which granted third-party defendant City of New York's motion to set aside the verdict against it as contrary to the weight of the evidence and which granted defendants' motion to reduce the jury verdict from $805,976.00 to $423,677.54, unanimously modified, on the law and the facts, 1) to the extent of denying the third-party defendant's motion and reinstating the jury verdict against the City of New York and, 2) directing a new trial on the issue of damages only and, except as so modified, affirmed unless, within 20 days after service of this order, plaintiff shall serve and file, in the office of the clerk of the Supreme Court, a stipulation consenting to reduce the jury's total verdict from $423,677.54 to $250,000, and to entry of an amended judgment in accordance therewith, in which event the judgment, as modified and reduced, is affirmed, without costs.

Plaintiff Phyllis Zito commenced this action against defendants 241 Church Street Corp. and Sylvan Lawrence Co. for personal injuries. At the time of the accident, Ms. Zito was employed by third-party defendant, New York City Human Resources Administration. On September 10, 1989, Ms. Zito was working in her office on the tenth floor of a building owned by defendant 241 Church Street Corp. and managed by defendant Sylvan Lawrence Co. The wheel of the chair in which plaintiff was sitting became caught in a hole or depression in the floor, causing the chair to tip over. Ms. Zito hit her head against a column in her office, allegedly causing permanent injuries to her back, recurring headaches, anxiety attacks, and depression.

The complaint alleges that the accident resulted, inter alia, from defendants' negligence in failing to inspect, repair, and maintain the floor of the office. Plaintiff's bill of particulars alleges that defendants had actual and constructive notice of the defect as they, or their agents, were on the premises and knew, or should have known, of the defect. Defendants brought a third-party action claiming indemnification from the City and denying any responsibility for the accident. Defendants assert that either plaintiff negligently caused her own injuries or that the City negligently caused plaintiff's injuries by failing to repair the defect. Defendants' bill of particulars alleges that the City failed to notify them of the defective condition of the floor, failed to make repairs, and breached the lease.

In its third-party answer, the City denied any obligation to indemnify defendants. At trial, the City took the position that the lease imposes no obligation to maintain or repair the premises or to notify defendants of any defects in the condition of the leased premises. The jury, however, in a bifurcated trial, returned a verdict on liability, holding defendants 40% negligent, the City 55% negligent, and plaintiff 5% negligent.

Supreme Court granted a motion by the City to set aside the jury verdict and dismissed the complaint against it. The court reduced the amount of the verdict against defendants from $805,976 ($720,000 after the deduction for plaintiff's apportionment of damages) to $423,677.54 ($360,000 after apportionment) and denied their motion for a new trial. Defendants appeal from that portion of Supreme Court's judgment which set aside the jury verdict and dismissed the third-party complaint. Plaintiff cross-appeals from that portion of the judgment which reduced the jury verdict.

The basis for dismissal of the third-party complaint is stated in the transcript as the failure to adduce sufficient evidence to support the allegations contained therein, as amplified by the bill of particulars. The court expressly noted that no duty is imposed upon the City by the terms of the lease to notify defendants of the need for repairs.

Defendant 241 Church Street Corp.'s bill of particulars avers that "third party defendant breached its lease duty, failed to notify defendant of any housekeeping or maintenance defect; and/or improperly cleaned and maintained portions of premises it leased from defendant." Thus, the City was put on notice of claims for failure to notify, failure to repair, and breach of lease (see, DiMauro v....