Gilbert Properties, Inc. v. City of New York , 33 A.D.2d 175 ( 1969 )

McNally, J.

In this action to recover for property damage, defendants City of New York and Board of Education of the City of New York appeal from a judgment in the sum of $15,303.05 after a jury trial. Judgment over was directed in favor of defendants-appellants as against the third-party defendant-appellant, New York City Housing Authority.

The City of New York and the Board of Education appeal from the judgment entered in the case in chief. The third-party defendant New York City Housing Authority appeals from the judgment over on the third-party complaint.

Defendants City of New York and Board of Education were formerly the owners of land and a school building on West 117th Street in the Borough of Manhattan. It is undisputed that title to the property was conveyed to the third-party defendant New York City Housing Authority by a deed recorded in the office of the Register of New York County on March 5, 1963. Three weeks thereafter the New York City Housing Authority ordered into a contract with A. Duffy Used Brick House Wrecking Co., Inc., the other third-party defendant, for the demolition of the school building. Duffy has defaulted in the action. There was no proof offered as to when the demolition work started or whether it was in progress on the date the accident happened. All the record shows is that an application for the requested demolition permits was filed by the New York City Housing Authority in the office of the Department of Buildings of the City of New York prior to August 13, 1963. On that date, the brick wall located between the rear of the school building and the rear of plaintiff’s building for unknown reasons collapsed, causing damage to the rear of plaintiff’s building.

The present action by plaintiff to recover for damage to its property was commenced against the City of New York and the Board of Education on July 27, 1964, although the City of New York had. long prior thereto been divested of title by deed dated January 3, 1963, recorded March 5, 1963. Plaintiff’s claim previously filed against defendants was disallowed on this ground by the Comptroller of the City of New York on January 28,1964. Nevertheless, plaintiff alleged in paragraph Fifth of its complaint that New York City was the -owner, and in paragraph Sixth that the Board of Education was the owner, and further, in paragraph Seventh, that the defendants were engaged in the demolition of the school. The joint answer of the city and Board of Education denied paragraph Seventh and denied ownership in the Board of Education, but inadvertently failed to deny the allegation of the city’s ownership. There is no allegation of maintenance and control in the amended complaint.

In May, 1966 the Corporation Counsel’s office, representing both defendants, served plaintiff’s attorney with a notice of intention to amend at the trial to deny the allegation of ownership in the city. When the case came to trial in December, 1967 the Trial Justice denied the motion on the ground of prejudice to plaintiff. The case was tried and submitted to the jury on the theory that the property was owned by the city and Board of Education, although the answer denied the allegation of ownership as far as the Board of Education was concerned, the court charging the jury that the City of New York was the owner of the property under the pleadings. Motions to dismiss were denied by the Trial Justice and judgment on the verdict was entered as indicated above.

In our opinion the judgment cannot stand. In the absence of some statute imposing liability on the owner of real property, liability is an incident to occupation and control. (Cullings v. Goetz, 256 N. Y. 287, 290.) There is no proof that either the city or the Board of Education exercised control over the school property or the retaining wall on the date that the accident occurred. Furthermore, there is no proof of negligence on the part of the city or the Board of Education in connection with the collapse of the retaining wall. The record merely shows that the wall collapsed. The demolition contract was made between the third-party defendants, New York City Housing Authority and Duffy, and the record fails to show any retention of supervision by the city or Board of Education.

The cases on which respondent relies are inapplicable. Hanley v. Central Sav. Bank (255 App. Div. 542, affd. 280 N. Y. 734) turns on the proposition that an owner of property who employs a general contractor and retains control through a supervisor who was on the premises approximately every day to determine the progress of the work and to generally supervise, may be liable for negligent performance of the contractor. The supervisor had given instructions by way of criticism of the type of demolition construction work, so that the same would conform to the plans and specifications. To the same effect is Hooey v. Airport Constr. Co. (253 N. Y. 486) where the defendant general contractor was on the scene during the progress of the work and had hired a subcontractor to build certain walls. In Boylhart v. DiMarco & Reimann (270 N. Y. 217) the contractor employed a subcontractor. In Rosenberg v. Schwartz (260 N. Y. 162) defendant was in control of the work. In Hyman v. Barrett (224 N. Y. 436) the owner had not authorized any work which created the danger. In Storrs v. City of Utica (17 N. Y. 104) the city had control of the public streets. McNulty v. Ludwig & Co. (153 App. Div. 206) was tried on the theory of a public nuisance. In Hughes v. Harbor & Suburban Bldg. & Sav. Assn. (131 App. Div. 185) the owner employed the contractor. In Lockowitz v. Melnyk (143 N. Y. S. 2d 135) the contractor was hired by the owner. The same situation obtained in Schwartz v. Merola Bros. Constr. Corp. (290 N. Y. 145) and Rohlfs v. Weil (271 N. Y. 444). The owner and the lessee, respectively, in those cases entered into the contract. In the instant case there was no contract entered into by the alleged owner, the City of New York, or the Board of Education, and no allegation or proof of maintenance or control, and no reservation of control by lease or otherwise.

The trial court charged the doctrine of res ipsa loquitur. The essential element in a res ipsa loquitur case is control over the instrumentality causing the injury. (George Foltis, Inc. v. City of New York, 287 N. Y. 108; cf. Corcoran v. Banner Super Market, 19 NY 2d 425.)

For the aforesaid reasons, we hold the amended complaint should be dismissed, without prejudice.

If we did not dismiss the amended complaint, we would reverse and order a new trial on the ground that the denial of the motion to amend the answer to permit denial of ownership on the part of the city was an unwise exercise of discretion and constituted prejudicial error.

Prior to commencing the action, plaintiff had notice that the city did not own the property. At a hearing held in the Comptroller’s office on January 28, 1964, on plaintiff’s claim against the city and the Board of Education, plaintiff’s attorney was advised that the property was owned by the New York City Housing Authority, an indepéndent agency, and that the Authority had engaged Duffy as its demolition contractor, and accordingly the City of New York would disclaim liability since it was not the owner. Furthermore, plaintiff had constructive notice concerning ownership since the deed conveying the property from the city to the Housing Authority was recorded March 5, 1963. Long before the trial, plaintiff had further notice that the city did not own the property in August, 1963, since in May, 1966 it was notified that the city intended to move at the trial to amend the answer to deny ownership.

The record further indicates that plaintiff was not prejudiced by the fact that the city’s answer had failed to deny ownership. When the action was commenced, plaintiff was not in a position to commence suit against the Housing Authority (General Municipal Law, § 50-e; Public Housing Law, § 157; Robinson v. New York City Housing Auth., 8 A D 2d 747, affd. 7 N Y 2d 908). At the time the action against the city was instituted in July, 1964, plaintiff’s suit against the Authority was precluded by reason of plaintiff’s failure to file a timely notice of claim. The city’s omission to deny ownership did not prejudice plaintiff. The motion to amend the answer to permit denial of ownership by the city should have been granted. Any prejudice to plaintiff resulted from its own failure timely and diligently to protect its rights, and not from the city’s omission to deny ownership in its answer. Further, in ordering a new trial we would hdld the verdict to be against the weight of the evidence.

Assuming, however, ownership on the part of the city, there is nevertheless no liability, in our opinion, in the absence of proof of some measure of maintenance and control. Since plaintiff failed to allege maintenance and control, and although we are mindful of the concession of plaintiff that a case was not made out against the Board of Education, in the event plaintiff may be able to allege and establish some degree of maintenance or Control on the part of either the city or the Board of Education, the judgments and order should be reversed, on the law, without costs, and the amended complaint dismissed, and, in the interests of justice, without prejudice. (See CPLR 205.)

The dismissal of the amended complaint makes unnecessary the consideration of the other points raised by appellants.