Lyon v. Banks

18 A.D.2d 1099, 1963 N.Y. App. Div. LEXIS 3894

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 22, 1963
• Status: Published

Opinion

In a negligence action to recover damages for personal injury, in which the three defendants named Banks interposed a third-party complaint, the said defendants and third-party plaintiffs appeal from a judgment of the Supreme Court, Queens County, entered April 9, 1962 after trial, upon a jury’s verdict in favor of plaintiff and upon the court’s decision (rendered after the verdict pursuant to stipulation) in favor of the third-party defendant, dismissing the third-party complaint. Judgment modified on the law and the facts as follows: (1) by striking out its first decretal paragraph directing that plaintiff recover of the three defendants Banks the sum of $145,216; and (2) by substituting therefor a provision dismissing the complaint on the law against said defendants. As so modified, judgment affirmed, without costs. On this record, and under the applicable law, plaintiff did not establish: (a) that there was any duty owing to him by the defendants Banks which was violated by them; (b) that there was any causal relationship between the accident and anything that said defendants did or failed to do; and (c) that he was free from contributory negligence. In view of our determination that the main complaint must be dismissed, the trial court’s dismissal of the third-party complaint'should be affirmed. Beldock, P. J., Kleinfeld, Christ, Brennan- and Rabin, JJ., concur.-