Strong v. Henra Realty Corp.

Judgment, Supreme Court, Bronx County (Burchell, J.), entered on June 2,1981, after a jury trial, in favor of third-party defendant Elevator Engineering Co., Inc., reversed, on the law and the facts, the judgment vacated, and the matter remanded for a new trial, with costs and disbursements to abide the event. This case involves an action instituted by plaintiff Reba Strong against defendant-appellant Henra Realty Corp. for damages for injuries sustained by her when an elevator in which she was riding suddenly fell to the basement. Henra Realty, the owner of the building where the elevator was located, in turn brought a third-party suit against defendant-respondent Elevator Engineering Co., Inc., with whom it had a partial maintenance contract. The matter proceeded to trial during the course of which the plaintiff reached a settlement with Henra Realty for the sum of $16,500, with no concession by the latter as to the issue of liability. The trial then continued on Henra’s third-party complaint against Elevator Engineering. After summations were concluded, the court, over the objections of both parties, charged the jury on indemnification alone. Thereafter, the six-member jury unanimously found in favor of Elevator Engineering. On appeal, Henra Realty, citing Dole v Dow Chem. Co. (30 NY2d 143), contends that the trial court’s refusal to submit apportionment in addition to indemnity to the jury’s consideration constitutes reversible error. The fact that the court declined to charge apportionment was based largely on Rogers u Dorchester Assoc. (32 NY2d 553), wherein the Court of Appeals held that no apportionment was indicated between the owner and manager, on the one hand, and Otis Elevator Company (Otis), on the other. However, in that case, the court expressly reasserted the validity of Dole v Dow Chem. Co. (supra). According to Dow, “where a third party is found to have been responsible for a part, but not all, of the negligence for which a defendant is cast in damages, the responsibility for that part is recoverable by the prime defendant against the third party. To reach that end there must necessarily be an apportionment of responsibility in negligence between those parties.” (At pp 148-149.) The court in Rogers v Dorchester Assoc, (supra), concluded that since there was no evidence that the owner and manager of the building had actual notice of the defect and, consequently, no failure on their part to inform the elevator maintenance company, the actual negligence, if any, must have been attributable solely to acts or omissions by Otis. Thus, the court in Rogers decided that the facts before it in that particular situation were such as to preclude apportionment. Recently, the Court of Appeals, in D’Ambrosio v City of New York (55 NY2d 454), reaffirmed the rule that holds joint tort-feasors liable pursuant to their 830 respective degrees of fault. In that case, where the two defendants were the City of New York and an abutting landowner, the court stated that “[a] failure to repair a defective condition, of which it has notice, either actual or constructive, will cast the municipality in liability for damages to a person injured thereby” (at p 462). As the court explained in D'Ambrosio, if only one of the parties in a specific matter is determined to be responsible for the negligence, then that party should incur full liability, which is what the court did, in fact, hold in Rogers v Dorchester Assoc, (supra). In the instant case, there was evidence that the owner, Henra Realty Corp., had actual notice that the elevator was not functioning properly, and Elevator Engineering alleges that it was not informed of this situation. There was also proof introduced at trial that if the elevator had been adequately serviced and maintained, there would have been no malfunction and the descent would have been a slow one. Therefore, the jury could reasonably have concluded that each party was chargeable with a portion of the negligence. The Judge’s instructions, however, improperly precluded the jury from assessing responsibility in relation to the degree it deemed each party accountable. Under these circumstances, a new trial is warranted. Concur — Carro, J. P., Bloom and Milonas, JJ.