SINGH v. Viceroy of India Restaurant, Inc., et al., Third-Party Defendants-Appellants.

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Supreme Court, Appellate Division, Second Department, New York.

Paramjit SINGH, et al., Respondents, v. Rangi SINGH, Defendant Third-Party Plaintiff-Appellant, Viceroy of India Restaurant, Inc., et al., Third-Party Defendants-Appellants.

Decided: May 20, 2002

ANITA R. FLORIO, J.P., SANDRA J. FEUERSTEIN, CORNELIUS J. O'BRIEN and THOMAS A. ADAMS, JJ. Robert P. Tusa, (Sweetbaum & Sweetbaum, Lake Success, NY, [Marshall D. Sweetbaum] of counsel), for defendant third-party plaintiff-appellant. MacCartney, MacCartney, Kerrigan & MacCartney, Nyack, NY, (Christopher J. Walsh of counsel), for third-party defendants-appellants. Lawrence P. Biondi, New York, NY, for respondents.

In an action to recover damages for personal injuries, etc., the defendant third-party plaintiff and the third-party defendants separately appeal from a judgment of the Supreme Court, Queens County (Dye, J.), entered December 6, 2000, which, upon a jury verdict finding the defendant third-party plaintiff 35% at fault, the third-party defendants 60% at fault, and the injured plaintiff 5% at fault in the happening of the accident, inter alia, awarded the plaintiffs damages.

ORDERED that the judgment is reversed, on the law, the third-party complaint is dismissed, and a new trial is granted against Rangi Singh, with costs to abide the event.

The plaintiffs commenced this action, inter alia, to recover damages for personal injuries allegedly sustained by the plaintiff Paramjit Singh as a result of a fall over a protruding fixture while he was working as a waiter at a party on the property of the defendant third-party plaintiff, Rangi Singh (hereinafter the defendant).   The plaintiffs initially brought this action against the defendant and the third-party defendants, Viceroy of India Restaurant, Inc. (hereinafter Viceroy), the caterer of the party, and Mahendra Chhikara, the manager of Viceroy.   Thereafter, the plaintiffs voluntarily discontinued their action against Viceroy and Chhikara with prejudice.   The defendant's cross claims against Viceroy and Chhikara were converted into a third-party action.   Notwithstanding that the plaintiffs' action directly against Viceroy and Chhikara had been discontinued, at the time of trial, the Supreme Court repeatedly referred to both the defendant and Viceroy and Chhikara, the third-party defendants, as “defendants” throughout its jury charge.   In addition, the Supreme Court failed to instruct the jury on the elements necessary to impose liability upon the third-party defendants as the injured plaintiff's employer.   While the Supreme Court made one passing reference to the third-party claim, the charge as a whole failed to convey the legal distinctions between the defendant and the third-party defendants.   Since the charge confused and created doubt as to the principles of law to be applied, the judgment is reversed and a new trial is granted (see Rosas v. Ishack, 219 A.D.2d 633, 631 N.Y.S.2d 417;  Kearse v. Food Fair Stores, 104 A.D.2d 582, 479 N.Y.S.2d 368).

Moreover, since there is no viable theory upon which the third-party defendants may be held negligent, the third-party complaint should be dismissed (see Wesley v. Long Is. Power Auth., 284 A.D.2d 391, 728 N.Y.S.2d 50;  Soto v. City of New York, 244 A.D.2d 544, 664 N.Y.S.2d 612;  Camarda v. Summit Homes, 233 A.D.2d 285, 649 N.Y.S.2d 463;  Gomes v. Revere Sugar Corp., 140 A.D.2d 582, 528 N.Y.S.2d 646).

The defendant's remaining contentions are either unpreserved for appellate review or without merit.

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