Charles F. Vachris, Inc. v. Staten Island Rapid Transit Railway Co.

11 A.D.2d 817, 204 N.Y.S.2d 943, 1960 N.Y. App. Div. LEXIS 8460

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 20, 1960
• Status: Published

Opinion

In an action in which the complaint pleads five separate causes of action (the first three against the railway company for breach of contract; the fourth against the railway company for its negligence; and the fifth against the six individual defendants, consulting engineers, for their false representations and their negligence), arising out of a contract between plaintiff and the railway company, pursuant to which plaintiff agreed to erect the substructure of a bridge for the railway company over Arthur Kill, between Arlington in Staten Island and Elizabeth in New Jersey, the railway company appeals: (1) from an order of the Supreme Court, Kings County, entered January 2,7, 1960, which grants plaintiff’s motion for partial summary judgment under rule 114 of the Rules of Civil Practice, upon the first cause of action, and which denies the railway company’s motion for summary judgment under rule 113 of the Rules of Civil Practice dismissing the complaint as to it, that is, the first four causes of action which are alleged against it in the complaint; and (2) from the judgment of said court entered January 28, 1960, on said order. Order modified by striking out the first three ordering paragraphs and substituting therefor a provision denying plaintiff’s motion for partial summary judgment. As so modified, order affirmed, without costs; and judgment entered on said order vacated. With respect to each of the four causes of action alleged against the railway company it is our opinion that issues of fact are presented which should be resolved after a plenary trial. Beldock, Acting P. J., Ughetta, Pette and Brennan, JJ., concur; Kleinfeld, J., not voting.