Thomas E. Hoar, Inc. v. Jobco, Inc.

Appellate Division of the Supreme Court of New York

Thomas E. Hoar, Inc. v. Jobco, Inc.

30 A.D.2d 541, 291 N.Y.S.2d 380, 1968 N.Y. App. Div. LEXIS 4094

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 6, 1968

StatusPublished

This text of 30 A.D.2d 541 (Thomas E. Hoar, Inc. v. Jobco, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Thomas E. Hoar, Inc. v. Jobco, Inc., 30 A.D.2d 541, 291 N.Y.S.2d 380, 1968 N.Y. App. Div. LEXIS 4094 (N.Y. Ct. App. 1968).

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Opinion

Two orders of the Supreme Court, Nassau County, dated April 7, 1967 and May 22, 1967, respectively, affirmed, with one bill of $10 costs and disbursements. No opinion. Brennan, Acting P. J., Rabin, Benjamin and Munder, JJ., concur; Martuscello, J., dissents and votes to reverse the orders and to dismiss the first three defenses in the answer of defendants Colasono and Petrides. Plaintiff sued defendant builder, Jobco, Inc., and defendant architects, Colasono and Petrides, for their alleged negligence in building and designing its building. As a result of the alleged negligence the building was flooded and damage was caused to plaintiff’s inventory. Defendant architects interposed a general denial and four affirmative defenses. Plaintiff moved to dismiss three of these defenses as a matter of law. This motion was denied, as was a subsequent motion to renew and reargue, by the two orders under review, respectively. The three defenses in question are: (1) defendant architects had filed and received prior governmental approval of the plans; (2) there was no privity between plaintiff and the architects; and (3) defendant architects did not supervise the construction of the building. I find these defenses improper. Prior governmental approval is not an affirmative defense to a suit for negligent design (Pitcher v. Lennon, 12 App. Div. 356, 361; Fox v. Ireland, 46 App. Div. 541, 544; Burke v. Ireland, 47 App. Div. 428, 431, revd. on other grounds, 166 N. Y. 305). The question of privity is for plaintiff to prove in his prima facie ease. If he fails to do so he must establish that the building as designed was inherently dangerous (Inman v. Binghamton Housing Auth., 3 N Y 2d 137). Lack of supervision is not germane where the allegation of negligence involves negligent design. Furthermore, there is no allegation of supervision. In view of the foregoing the first three affirmative defenses should be dismissed as a matter of law.

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Two orders of the Supreme Court, Nassau County, dated April 7, 1967 and May 22, 1967, respectively, affirmed, with one bill of $10 costs and disbursements. No opinion. Brennan, Acting P. J., Rabin, Benjamin and Munder, JJ., concur; Martuscello, J., dissents and votes to reverse the orders and to dismiss the first three defenses in the answer of defendants Colasono and Petrides. Plaintiff sued defendant builder, Jobco, Inc., and defendant architects, Colasono and Petrides, for their alleged negligence in building and designing its building. As a result of the alleged negligence the building was flooded and damage was caused to plaintiff’s inventory. Defendant architects interposed a general denial and four affirmative defenses. Plaintiff moved to dismiss three of these defenses as a matter of law. This motion was denied, as was a subsequent motion to renew and reargue, by the two orders under review, respectively. The three defenses in question are: (1) defendant architects had filed and received prior governmental approval of the plans; (2) there was no privity between plaintiff and the architects; and (3) defendant architects did not supervise the construction of the building. I find these defenses improper. Prior governmental approval is not an affirmative defense to a suit for negligent design (Pitcher v. Lennon, 12 App. Div. 356, 361; Fox v. Ireland, 46 App. Div. 541, 544; Burke v. Ireland, 47 App. Div. 428, 431, revd. on other grounds, 166 N. Y. 305). The question of privity is for plaintiff to prove in his prima facie ease. If he fails to do so he must establish that the building as designed was inherently dangerous (Inman v. Binghamton Housing Auth., 3 N Y 2d 137). Lack of supervision is not germane where the allegation of negligence involves negligent design. Furthermore, there is no allegation of supervision. In view of the foregoing the first three affirmative defenses should be dismissed as a matter of law.

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Bluebook (online)

30 A.D.2d 541, 291 N.Y.S.2d 380, 1968 N.Y. App. Div. LEXIS 4094, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-e-hoar-inc-v-jobco-inc-nyappdiv-1968.

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