Zuckerman v. City of New York

• Citation: 66 A.D.2d 248,413 N.Y.S.2d 657
• Parties: Muriel ZUCKERMAN, Plaintiff, v. The CITY OF NEW YORK, Royfost Co., Inc., Defendants-Respondents, New York City Transit Authority, Defendant-Appellant, and Harvey's Seafood House, Inc., Defendant.
• Decision Date: 15 February 1979
• Court: New York Supreme Court — Appellate Division

Page 657

413 N.Y.S.2d 657

66 A.D.2d 248

Muriel ZUCKERMAN, Plaintiff, v. The CITY OF NEW YORK, Royfost Co., Inc., Defendants-Respondents, New York City Transit Authority, Defendant-Appellant, and Harvey's Seafood House, Inc., Defendant.

Supreme Court, Appellate Division, First Department.

Feb. 15, 1979.

Kenneth J. Chertoff, Brooklyn, of counsel (John A. Murray, Brooklyn, with him on the briefs, Alphonse E. D'Ambrose, Brooklyn, atty.), for defendant-appellant.

Bernard Abel, New York City, of counsel (L. Kevin Sheridan, New York City, with him on the brief, Allen G. Schwartz, Corp. Counsel, New York City) for defendant-respondent The City of New York.

Nathan Cyperstein, New York City, of counsel (Alvin P. Bluthman, Brooklyn, with him on the brief, Gantman, Cyperstein & Peckman, New York City, attys.), for defendant-respondent Royfost Co., Inc.

Before MURPHY, P. J., and LUPIANO, FEIN, SANDLER and SULLIVAN, JJ.

SANDLER, Justice.

This is a negligence action to recover damages for injuries allegedly sustained by plaintiff when she fell on the sidewalk at or near a bus stop at the intersection of Third Avenue and 34th Street. As detailed in the plaintiff's bill of particulars, she tripped and fell in a break in the sidewalk described as 10' long, 6 wide, and 6 deep. The theory of liability advanced is that each of the defendants negligently failed in an alleged duty to maintain that area of the sidewalk in a safe condition and to inform passers-by of its defective and unsafe condition.

In their answers, the defendants interposed cross-claims against each other. As here relevant, Royfost Co., Inc. (Royfost), alleged to be an adjoining landowner, cross-claimed that any damages sustained by plaintiff not attributable to her own negligence were caused "by reason of the sole, active and primary . . . negligence and/or affirmative acts of omission . . . by the co-defendants, the City of New York, New York City Transit Authority, Harvey's Seafood House, Inc. . . . "

Similarly in its answer, the City of New York (the City) cross-claimed "that if the plaintiff was caused damages as alleged in the plaintiff's complaint through negligence other than plaintiff's own negligence, said damages were sustained due to the negligent acts of omission or commission of the defendants above named."

Moving for summary judgment dismissing the complaint, the New York City Transit Authority (the Authority) asserted in substance that it was under no duty to maintain and repair the public sidewalks, and that in any event the bus stop in question was not one used by its buses. Plaintiff urged in its response that there was an issue of fact as to whether the Authority used the bus stop at the time of the pertinent event.

Special Term (M. Evans, J.) granted summary judgment and dismissed the complaint holding "It is clear that said defendant (the Authority) was under no legal duty to correct a defective condition existing on the public sidewalk. New York City Charter, Section 2103"

No appeal was taken from the order entered on this decision.

Thereafter the Authority moved to dismiss the cross-claims, contending in an attorney's affidavit that they involved the same legal issue determined by Special Term when it dismissed the complaint.

In its response the City claimed that under a leasing agreement with the City the Transit Authority was liable for any and all claims arising out of its operation of "Leased Property."

Royfost, in an affidavit submitted by its attorney, pointed out that its cross-claim, unlike the dismissed complaint, was not limited to the theory that the Transit Authority was under a duty to maintain the sidewalk. The affidavit summarized testimony given by the plaintiff at a comptroller's hearing as follows:

"She was about to take a bus at the corner midway between 34th and 35th Streets; a bus had closed its doors and a second bus was coming; and the second bus stopped to pick up passengers. As plaintiff prepared to enter the bus, her foot sank into mud at the curb and this happened because the bus did not stop at the curb . . . When plaintiff fell, her entire body landed in the roadway."

Special Term (Asch, J.) denied the Authority's motion for summary judgment relying on CPLR § 1401, titled "Claim for contribution," which reads in pertinent part:

". . . two or more persons who are subject to liability for damages for the same personal injury . . . may claim contribution among them whether or not an action has been brought or a judgment has been rendered against the person from whom contribution is sought."

On this appeal the City has abandoned its reliance on the supposed written agreement of indemnification and has associated itself with the position advanced by Royfost.

The decisive circumstance here is that the cross-claims, unlike the dismissed complaint, do not depend on the supposed duty of the Authority to maintain the sidewalk. The Authority's moving papers proceed entirely on the erroneous assumption that the issue presented is identical with that determined on its successful motion to dismiss the complaint, and offer nothing in addition that would support summary judgment.

The only factual showing in the papers submitted appear in hearsay form in the affidavit of Royfost's counsel described above. Although that recital is vague with respect to critical details, we are not able to say on this record that there are not presented factual issues precluding summary judgment.

When a bus stops to pick up passengers, we think it fundamental that there is a duty of reasonable care to those who approach it for that purpose. Language arguably to the contrary in McMahon v. Surface Transportation Corporation of New York, 272 A.D. 202, 203, 69 N.Y.S.2d 859, 860 and Sheridan v. City of New York, 6 A.D.2d 125, 175 N.Y.S.2d 607, Aff'd, 6 N.Y.2d 765, 186 N.Y.S.2d 663, 159 N.E.2d 208, relied upon in the dissenting opinion, seem to us clearly Dicta in the light of the facts in those cases and not here controlling.

Nor do we agree with the thesis advanced in the dissenting opinion that the prior dismissal of the complaint mandates dismissal of the cross-claims under the doctrine of "law of the case." Where, of course, a motion addressed to legal sufficiency of a pleading raises issues identical with those that would be raised by a motion addressed to the pleadings of other parties in the same lawsuit, there is a compelling interest in having the issues resolved at the same time by a single judge. This, of course, would be most easily accomplished if the motion were addressed to all such pleadings. Lacking that, a judge aware of the identity of the issues would be justified in suggesting and indeed directing that the motion be expanded to permit a single disposition.

The palpable undesirability of contradictory decisions by different judges in a single lawsuit of issues going to the merits is such that there may well be force to the view that parties served with papers addressed to other pleadings should be required to participate. Certainly it would be in the interest of such parties to seek to avoid a decision that at the very least would be given great weight in a later motion addressed to another judge.

We need not reach that question here because the issue presented by these pleadings is clearly different from that previously determined and we are persuaded that neither authority nor reason supports the extension of the "law of the case" doctrine to these circumstances. Cf. Greenberg v. City of Yonkers, 45 A.D.2d 314, 358 N.Y.S.2d 453, Aff'd, 37 N.Y.2d 907, 378 N.Y.S.2d 382, 340 N.E.2d 744; Siegel, New York Practice § 448.

Accordingly, the Order of the Supreme Court, New York County, entered January 9, 1978, denying New York City Transit Authority's motion for summary judgment dismissing all cross-claims as to it, should be affirmed without costs.

Order, Supreme Court, New York County entered on January 9, 1978, affirmed, without costs and without disbursements.

All concur.

LUPIANO and FEIN, JJ., concurring in separate opinions.

MURPHY, P. J., and SULLIVAN, J., who dissent in an opinion by MURPHY, P. J.

LUPIANO, Justice (concurring):

I concur in the rationale of Justice Sandler, except that I express no view with respect to his dictum that "(t)he palpable undesirability of contradictory decisions by different judges in a single lawsuit of issues going to the merits is such that there may well be force to the view that parties served with papers addressed to other pleadings should be required to participate."

The critical fact is that the relationship between the defendants with respect to their Dole-Dow cross-claims is not governed in an absolute sense by the relationship between the plaintiff and each or any of the defendants regarding plaintiff's claim against said defendant or defendants. Obviously, under CPLR 3019(b) a cross-claim may be asserted between defendants for any cause of action at all, whether or not related in whole or in part to the plaintiff's main claim. Thus, the cross-claim is an appropriate remedy which a defendant may invoke for the resolution of Dole rights with notice to the other parties that he wants liability apportioned. As aptly noted by Professor Siegel in his Practice Commentaries to CPLR 3019 relevant to Dole v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 and its ramifications, the

"rule of plaintiff's-complaint-determines should now be as dead as is the passive-active notion itself. Whether it ultimately be found that the division of responsibility between A and B is 50%-50%, 60-40, 10-90, or anything else, the kind of negligence or other fault alleged in the injured person's complaint should not be determinative. As long as the complaint alleges an incident, and it is factually possible that the incident involves more than one tortfeasor, any tortfeasor in the case should be permitted to seek a Dole apportionment against another tortfeasor,...