Opinion
April 5, 1971
In a consolidated negligence action to recover damages for personal injury and loss of services, etc., (1) defendant Long Island Lighting Co. appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Kings County, as resettled by an order of said court entered September 11, 1970, as (a) is against it and in favor of plaintiffs upon a jury verdict and (b) dismissed its cross complaint against defendant Herrick Manor, Inc., upon the trial court's decision; and (2) defendant Herrick Manor, Inc., appeals, as limited by its brief, from so much of said judgment as is against it and in favor of plaintiffs upon the jury verdict. Judgment affirmed insofar as appealed from, with a single bill of costs to plaintiffs against appellants jointly. No opinion. Munder, Acting P.J., Shapiro, Gulotta and Christ, JJ., concur; Benjamin, J., concurs in part and dissents in part, as indicated in the following memorandum: I agree that plaintiffs' judgment against defendants Long Island Lighting Co. and Herrick Manor, Inc., should be affirmed. I also agree that the cross complaint of Long Island Lighting Co. against Herrick Manor, Inc., was properly dismissed. But I dissent from the majority's holding insofar as it affirms the dismissal of Herrick's cross complaint against Long Island Lighting and vote to modify the judgment so as to grant recovery to Herrick upon said cross complaint. De Rasmo v. Long Is. Light. Co. ( 27 A.D.2d 566, affd. 20 N.Y.2d 665) was exactly like the case at bar. In De Rasmo I dissented from the majority's holding that the owner/general contractor (Tanwood) was entitled to judgment on its cross complaint against Long Island Lighting Company because I believed that Tanwood, like Long Island Lighting, was guilty of active negligence. However, the Court of Appeals affirmed the majority's holding that Tanwood was only passively negligent, so the law is now settled that on the fact pattern of that case (identical with that at bar) the owner/general contractor is guilty of only passive negligence and consequently is entitled to judgment over against Long Island Lighting. In the present case, defendant Herrick, as owner/general contractor, has the same status and the same right to claim over against Long Island Lighting as Tanwood had in the De Rasmo case. In view of the holding in that case, Herrick was entitled to judgment on its cross complaint against Long Island Lighting, and the dismissal of that cross complaint was erroneous. Herrick's notice of appeal specifically states that it is appealing from that dismissal; and, under established law, it is entitled to a reversal of that erroneous determination and the grant of judgment over against Long Island Lighting. In my opinion, its failure to request that relief in its brief does not warrant a conclusion that it has waived its right to it, particularly in a case like this where its right is so clear and the result of such alleged waiver so drastic as to defeat an entire cause of action whose dismissal was appealable and in fact appealed.