Zuckerman v. City of New York

Murphy, P. J. (dissenting).

In considering the merits of this appeal, we have taken judicial notice of the entire county clerk’s file in this proceeding (Fisch, NY Evidence [2d ed], § 1065, p 602).

Plaintiff allegedly fell in the vicinity of 34th Street and Third Avenue while walking toward a bus on April 3, 1975. In her bills of particulars, she specifies that she tripped upon the curbstone in the area of the bus stop. The curbstone allegedly contained a depression approximately 10 feet in length, 6 inches in depth, and 6 inches in width. She sued the City, the owner of the abutting building (Royfost Co., Inc.) and the abutting tenant (Harvey’s Seafood House, Inc.) for their negligence in permitting this unsafe condition to exist. The New York City Transit Authority was sued for its purported negligence in failing to provide a reasonably safe bus stop. In *262generalized form language, each defendant cross-claimed against the other for an apportionment of responsibility and damages.

On a prior motion, the Transit Authority moved for summary judgment dismissing the action in chief against it on the ground that only the City (NY City Charter, § 2103) and adjoining owners (NY City Charter, § 230) were responsible for the repair and maintenance of curbs and sidewalks. The Transit Authority also emphasized that it did not have a bus stop on the northeast corner of 34th Street and Third Avenue, the site of the occurrence. Although the plaintiffs attorney opposed that motion, the City, Royfost and Harvey’s (collectively "the three defendants”) did not submit any papers in opposition to the motion. The court at Special Term, relying upon section 2103 of the New York City Charter granted the motion for the reason that the Transit Authority was under no legal duty to correct a defective condition existing in the public sidewalk. No appeal was ever taken from that original order.

Subsequently, the Transit Authority brought the instant motion to dismiss all the cross claims as against it on the basis of the original order. An attorney for the City stated in an opposing affirmation that, under a leasing agreement with the City, the Transit Authority was liable for all claims arising out of or in connection with the operation, management and control of "Leased Property”. The City’s attorney contended that the Transit Authority was thus responsible for maintaining the sidewalk at the bus stop in a reasonably safe condition.

Royfost’s attorney submitted an opposing affirmation that summarized the plaintiffs testimony at a comptroller’s hearing. The plaintiffs foot had allegedly sunk into mud at the curb as she was walking toward a bus stopped on Third Avenue. As a consequence, she tripped and fell. For the first time, counsel for Royfost advanced the alternative theory that the Transit Authority could be held liable for the failure of the bus driver to pull closer to the curb. Defendant Harvey’s did not oppose the motion.

The court at Special Term denied the present motion on the ground that the Transit Authority might be liable for contribution under CPLR 1401, as codifying Dole v Dow Chem. Co. (30 NY2d 143).

A motion granting summary judgment is on the merits. A *263judgment on the merits precludes the maintenance of a second action based upon the same transaction if the evidence and the issues in both are the same. The second action may not be maintained even if brought upon a different theory (Eidelberg v Zellermayer, 5 AD2d 658, 662, 663, affid 6 NY2d 815). As was previously mentioned, the original order granted summary judgment dismissing the main action as against the Transit Authority. By force of that original order, the plaintiff was barred from seeking recovery from the Transit Authority on any and all theories.

The more narrow question presented upon appeal is whether the three defendants were also bound by that original determination. When a court makes a legal determination in a case, that determination, if not appealed from becomes the "law of the case” and controls when the question which led to it is again presented in the same case (1 Carmody-Wait 2d, NY Prac, 2:64, p 76). This rule is primarily aimed at preventing the relitigation of the same legal issue in a case and the concomitant possibility of conflicting decisions on the same legal issue. The three defendants were served with papers on the original motion; therefore, they had an opportunity to oppose the motion. Although the original motion was not directly addressed to their cross claims, the three defendants should have recognized that the validity of their cross claims was inexorably intertwined with the validity of the main action against the Transit Authority. Third-party liability does not exist in the absence of a duty owed by the third-party defendant to the plaintiff (Nolecheck v Gesuale, 46 NY2d 332, concurring opn of Gabrielli, J.).

In recent cases, other defendants have recognized this fact. Thus, where defendants have sought contribution from co-defendants, the courts have granted defendants standing to appeal the dismissal of the main actions against their co-defendants. (Tortora v La Voy, 54 AD2d 1036; Stein v Whitehead, 40 AD2d 89.) The doctrine of "law of the case” was formulated to avoid the very situation presented. A first Justice has found that no case lies against the Transit Authority, while a second Justice of co-ordinate jurisdiction has reached a contrary conclusion.

If, on the first motion, the three defendants were dissatisfied with the adequacy of plaintiff’s response, they should have submitted their own papers in opposition. For example, at that time, they were aware of and could have advanced the *264alternative theory, later advanced, for holding the Transit Authority liable, viz., the bus should have parked closer to the curb. Instead, the three defendants elected to default on the motion. By defaulting, they acquiesced in the legal determination that there was no basis for recovery against the Transit Authority (see Flake v Van Wagenen, 54 NY 25, 27). Until reversed, that original order conclusively established in this proceeding that the Transit Authority was not liable to the plaintiff, be it under a complaint in chief or a cross claim. (Engel v Aponte, 51 AD2d 989.) On the instant motion, the court at Special Term should have honored the order of a prior Justice of co-ordinate jurisdiction (Abazoglou v Tsakalotos, 36 AD2d 516, app dsmd 29 NY2d 544) and should have granted summary judgment dismissing the cross claims. It is true that the doctrine of law of the case has no binding force on appeal (Martin v City of Cohoes, 37 NY2d 162, 165). However since the time to appeal from the original order has expired, we should not disturb the holding therein on this appeal.

While the present dispute involves the doctrine of "law of the case”, an analogous problem has been succinctly analyzed in the collateral estoppel area. (2A Weinstein-Korn-Miller, NY Civ Prac, par 1401.22, pp 14-81, 14-82): "The issue of collateral estoppel may be raised in other situations involving a joint tort-feasor’s right to an apportionment of damages. Assume A and B are both involved in an accident in which P is injured. P sues A only. At the close of the trial the jury returns a special verdict in which it is concluded that A was not guilty of any negligence. P thereafter sues B. The judgment in favor of A in P’s initial action does not bar B from impleading A to seek a Dole indemnification because B was not a party to the action. But what if in the case of P v. A, A had impleaded B? Is B collaterally estopped from impleading A and seeking an apportionment of damages in the case of P v. B? To resolve the question it must be decided whether the test enunciated in Schwartz v. Public Admin, of Co. of Bronx [24 NY2d 65] has been met. The Court of Appeals stated in Schwartz that 'there are but two necessary requirements for the invocation of the doctrine of collateral estoppel. There must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and, second, there must have been a full and fair opportunity to contest the decision now said to be controlling.’ If B, as third-party defendant in *265the action of P v. A, had a full and fair opportunity to argue in his defense that A was responsible for P’s injuries and no liability should attach to B, the doctrine of collateral estoppel should prevent A, if adjudged not guilty of any conduct subjecting him to liability, from being subject to a claim for contribution in the action of P v. B. Such result, however, is dependent upon B being afforded an opportunity in the case of P v. A to present his evidence of A’s liability. Where B is prevented from presenting his evidence, then B cannot subsequently be bound by an adjudication in favor of A”. Similarly, the City (B) relinquished its right to cross-claim against the Transit Authority (A) by permitting the dismissal of the action in chief against the Transit Authority upon the original motion.

In passing, two decisions of the Court of Appeals should be noted and distinguished. In Klinger v Dudley (41 NY2d 362), the Dudleys were in the proceeding as both defendants and third-party defendants. Prior to trial, the Appellate Division, Fourth Department, granted summary judgment to them in the main action as a result of plaintiff’s failure to comply with a conditional preclusion order (40 AD2d 1078). At trial and on appeal, the Dudleys were held liable on the third-party complaint for their proportional share of damages. In Klinger, the plaintiff was precluded from giving evidence against the Dudleys while the cross claimant was not so bound as against them. However, in this proceeding, all parties were bound by the original determination that the plaintiff could not legally recover against the Transit Authority.

In Greenberg v City of Yonkers (45 AD2d 314, affd 37 NY2d 907), there was a trifurcated trial. On the first stage of the trial, evidence was submitted by the plaintiffs against defendant Cyanamid and certain other defendants on the theory of negligence and breach of warranty. The court granted the motion to dismiss the negligence action against Cyanamid since that cause was not litigated. The court later found that Cyanamid was not liable on the breach of warranty theory. However, at the second stage, Cyanamid was held liable on cross claims seeking contribution for its negligence. The Appellate Division noted that Cyanamid was properly held liable since the issue of negligence was not submitted to the jury in the first stage. The cross claimants were thus not estopped since they did not have an opportunity to litigate the negligence issue until the second stage (45 AD2d 314, 318). In affirming, the Court of Appeals stressed (37 NY2d 907, 909):

*266"Our affirmance should not be taken as approval of the trifurcation procedure utilized here by the trial court. It is preferable, and sometimes essential, that issues of liability be resolved at one stage of the trial.” Analogously, the issue of the Transit Authority’s liability to the plaintiff was presented on the original motion. That issue should have been resolved at that point rather than on a successive motion. Since the three defendants had the opportunity to contest that original motion, they should not complain on the instant motion that they were not bound by that prior determination.

Even if the various cross claims are now considered upon the merits, they must be dismissed. First of all, it should be observed that, upon appeal, the City no longer presses its original position that the Transit Authority is liable under the leasing agreement. Suffice it to say that it is quite difficult for the City to fit a "sidewalk” or a "curb” within even the broadest definition of "Leased Property”.

Secondly, no statutes or cases are cited by the three defendants that would suggest that the Transit Authority is under any duty to repair a sidewalk or a curb in or near a bus stop. The responsibility for maintaining a sidewalk and curb falls primarily on the City and the abutting owner (Metzroth v City of New York, 241 NY 470; cf. Tremblay v Harmony Mills, 171 NY 598; NY City Charter, § 2603, subd c; § 2604; Administrative Code of City of New York, § 692a-4.0; 26 NY Jur, Highways, Streets, and Bridges, § 6, p 175).

The guiding principles in this area were succinctly stated in McMahon v Surface Transp. Corp. of N Y. (272 App Div 202, 203-204): "The relationship of carrier and passenger may be implied from slight circumstances yet, before a duty of care toward a prospective passenger may be imposed upon the carrier the person of the passenger must be placed in some substantial sense in the custody of the carrier, either in the carrier’s premises while waiting to take passage or upon his vehicle. The sidewalk at the southeast corner of Fordham Road and Grand Concourse, including the part thereof which constitutes the bus stop, is a public thoroughfare over which the defendant had no control or authority. The street is in no sense a passenger station for the safety of which defendant is responsible. It is a public way where one occupier has the same rights as every other occupier.” The principles enunciated in McMahon apply with equal force to this plaintiff, a *267prospective passenger who tripped and was injured on the public sidewalk.

Finally, we find no merit to the contention that the bus driver was negligent in failing to stop closer to the curb. Parenthetically, we observe that the thrust of this claim is different from the one initially advanced by the plaintiff against the Transit Authority. Nonetheless, we would find that CPLR 1401 is broad enough to sustain a cross claim for contribution based upon a different theory (North Colonie Cent. School Dist. v MacFarland Constr. Co., 60 AD2d 685).

Viewing the evidence most favorably to the plaintiff, she tripped in a depression in a curbstone as she was walking toward a bus. In Sheridan v City of New York (6 AD2d 125, affd 6 NY2d 765), plaintiff’s decedent, Hugh Sheridan, was injured on a pedestrian platform that served as a bus stop. As Sheridan walked toward the bus, the front door closed. Sheridan knocked on the door as it began to move, and at that moment, his foot tripped in a hole in the platform near the curbstone. As a result of the fall, he slipped under the moving bus. The Court of Appeals found that the appellant trustee of the Surface Transportation Corporation was not liable since the corporation did not maintain the platform. Furthermore, the court found that the appellant owed no duty to Sheridan since the latter had never been accepted as a passenger nor was he invited aboard the bus.

In line with Sheridan, it must again be stressed that the Transit Authority did not maintain the curb nor was the plaintiff in any way accepted as a passenger. Any discussion of whether the bus driver had notice of the depression in the curbstone would be irrelevant since the Transit Authority was under no duty to repair it. Had the depression been in the street, rather than in the curbstone, there might be some merit to this last cross claim since the plaintiff would then have been forced to traverse the street in order to reach the bus. Under such a set of facts, the failure to pull the bus to the curb could be considered a proximate cause for the plaintiff’s fall. However, on the state of facts as presented, it is of no significance that the bus did not pull to the curb since the plaintiff would necessarily have to pass over the curbstone depression to reach the bus, no matter where it be stopped.

In closing, a comment should be made upon the fact that Justice Evans struck that portion of the proposed order as sought the dismissal of all cross claims against the Transit *268Authority. Concededly, the original motion was only addressed to the action in chief. Therefore, Justice Evans only signed an order dismissing the action in chief against the Transit Authority. The instant dispute centers upon the effect of that order upon the continued viability of the cross claims.

Accordingly, the order of the Supreme Court, New York County (Asch, J.), entered January 9, 1978, denying the Transit Authority’s motion for summary judgment dismissing all cross claims as against it, should be reversed, on the law, and the motion should be granted, without costs.

Lupiano and Fein, JJ., concur with Sandler, J., in separate opinions; Murphy, P. J., and Sullivan, J., dissent in an opinion by Murphy, P. J.

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