Kenney v City of New York

[*1] Kenney v City of New York 2009 NY Slip Op 50410(U) [22 Misc 3d 1133(A)] Decided on January 30, 2009 Supreme Court, Bronx County Salerno, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 30, 2009
Supreme Court, Bronx County

Joan M. Kenney and Patrick Mahon, Plaintiffs,

against

The City of New York, Excel Industries, and Dynatech Industries, Defendants.



811/2002



Appearances of Counsel:

Attorney For Defendant Excel: Armienti, DeBellis, Gugliemo & Rhoden, LLP

Attorney for Defendant City: Corporation Counsel, Michael Cardozo

Attorney for Plaintiffs: Paul Weitz & Assoc.

George D. Salerno, J.

Defendants, EXCEL INDUSTRIES and CITY OF NEW YORK, move to renew their prior motions for summary judgment that were denied by this Court, and, upon the granting of such relief, seek dismissal of Plaintiffs' complaint.

Prior History

This Court previously denied the moving Defendants' motions for summary judgment, by its order, dated May 18, 2004. Defendant DYNETCH appealed this Court's denial of its motion; which the First Department reversed, and dismissed Plaintiffs' cause of action against DYNATECH. (See Kenney v. City of New York, et al., 30 AD3d 261 [1st Dept. 2006] ). In doing so, the Appellate Division held as follows: This is a personal injury action based on the alleged negligence of defendants in connection with construction work on the sidewalk, park and roadway areas adjacent to the Supreme Court building at 60 Centre Street in Manhattan, where plaintiff Kenney worked in 1998. One summer morning, plaintiff tripped and fell on the courthouse steps after she slipped off a damp tread; plaintiff sustained compression fractures in her forearm requiring surgery. ... An examination of the record evidence demonstrates that ... there is no evidence of actionable negligence on its part causing plaintiff's trip and fall. To maintain a negligence cause of action, plaintiff must be able to prove the [*2]existence of a duty, breach and proximate cause (see Palsgraf v Long Is. R.R. Co, 248 NY 339, 162 NE 99 [1928]). ... Even were Dynatech connected to Excel Industries, which was the basis of the IAS court's denial of Dynatech's dismissal motion, the motion should have been granted, because plaintiff's access to the courthouse step handrails was not blocked. She testified that she walked diagonally up the steps but she could have chosen to walk on the outside of the blocked handrails, where the walkway was unobstructed.

Kenney v. City of New York, 30 AD3d 261 (1st Dept. 2006).

Law of the Case:

It is well-established that "the law of the case doctrine "is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned"." Matter of Oyster Bay Assoc. Ltd. Partnership v. Town Bd. of Town of Oyster Bay, 21 AD3d 964, 966 (2d Dept. 2005).

"An appellate court's resolution of an issue on a prior appeal constitutes the law of the case and is binding on the Supreme Court, as well as on the appellate court ... "[T]he law of the case' operates to foreclose re-examination of [the] question absent a showing of subsequent evidence or change of law"." J-Mar Serv. Ctr., Inc. v. Mahoney, Connor & Hussey, 45 AD3d 809 (2d Dept. 2007). "This [appellate] Court's determination in the first appeal ...constitutes the law of the case, which is binding on the Supreme Court and on this [appellate] Court." Seaman v. Wyckoff Hgts. Med. Ctr., Inc., 51 AD3d 1002 (2d Dept. 2008).

Although they did not appeal from this Court's prior order, "non-appealing defendants [may seek] renewal of [their prior] motion to dismiss the complaint insofar as asserted against [them] based upon an appellate court's decision to grant dismissal of the complaint as to a codefendant." Koscinski v. St. Joseph's Med. Ctr., 47 AD3d 685 (2d Dept. 2008).

A case with striking similarities to the case at bar involved an accident which occurred: when plaintiff struck a standardbred race horse while driving a dump truck ... in front of a farm where the horse had just been unloaded from a trailer. Defendant Bernard Waugh, the trainer of the horse, had removed the horse from the trailer and was leading it away when it unexpectedly "spooked" and ran into the road. The horse was killed when it collided with plaintiff's truck causing property damage. Plaintiff subsequently commenced this [*3]negligence action against Waugh, defendant R. Thomas Suarez (the owner of the farm) and defendant Paul Nower ..., all of whom were part owners of the horse. ... Following a nonjury trial, Supreme Court found in favor of plaintiff and held Waugh, Suarez and defendant [Nower] jointly and severally liable for plaintiff's property damage and lost revenue.In his appeal, defendant [Nower] contended that plaintiff failed to plead or prove the existence of a joint venture between him, his wife, Waugh and Suarez in the ownership of the horse and that, even if a joint venture was established, insufficient proof was adduced at trial to establish that Waugh was negligent in unloading the horse and thus impose liability upon him.

Johnson v. Waugh, 249 AD2d 733, 734-735 (3d Dept. 1998).

Like case at bar, the same issues were considered and decided by the Appellate Division in the prior appeal of another defendant namely, Suarez where the Appellate Division: "held that the evidence established that Waugh, Suarez, defendant and defendant's wife were engaged in a joint venture [and] ... that the proof presented by plaintiff did not support Supreme Court's conclusion that Waugh was negligent by not using the laneway when unloading the horse and, therefore, the judgment was improperly granted in plaintiff's favor." Johnson v. Waugh, supra.

Thus, the Johnson Court concluded that: "the above findings are binding on the parties to this appeal inasmuch as they constitute the law of the case ... Given our finding of the lack of negligence by Waugh ... and the absence of any other proof in this record of negligence by defendant [Nower] that contributed to plaintiff's damage ... the judgment must be reversed and the complaint dismissed as against defendant [Nower]." [emphasis added] Johnson v. Waugh, 249 AD2d 733, 734-735 (3d Dept. 1998).

Likewise, in the case at bar, the issues raised herein were considered and decided by Appellate Division in the prior Appeal by Defendant DYNATECH, where the Appellate Division found that dismissal was appropriate since Plaintiff's negligence was the proximate cause of this accident having concluded that: "plaintiff's access to the courthouse step handrails was not blocked. She ... walked diagonally up the steps but she could have chosen to walk on the outside of the blocked handrails, where the walkway was unobstructed". [FN1]

Accordingly, the above findings are binding to the parties in the case at bar; and Defendants' Motion and Cross Motion are granted, and this action is [*4]dismissed as to the remaining Defendants, EXCEL INDUSTRIES and CITY OF NEW YORK.

This constitutes the decision and order of this Court.

Dated: January 30, 2009__________________________

George D. Salerno, JSC Footnotes

Footnote 1: See Kenney v. City of New York, et al., 30 AD3d 261 (1st Dept. 2006).