Wortmann v. Long Island Lighting Co.

63 A.D.2d 969, 405 N.Y.S.2d 509, 1978 N.Y. App. Div. LEXIS 12023

Opinion

— In a negligence action to recover damages for personal injuries, etc., defendants the Long Island Railroad (LIRR) and the Metropolitan Transportation Authority (MTA) appeal from so much of an order of the Supreme Court, Nassau County, entered November 16, 1977, as failed to grant the branch of their motion which sought summary judgment against defendant the Long Island Lighting Company (LILCO) and instead severed and continued the cross claims between LIRR and MITA and LILCO. Order affirmed insofar as appealed from, with $50 costs and disbursements. Appellants’ argument that a prior action was res judicata on the issue of LILCO’s negligence is without merit (see Greenberg v City of Yonkers, 45 AD2d 314, affd 37 NY2d 907). The issue of LIRR’s negligence was never presented to the trier of the facts in the prior action. The court’s finding in that action that LILCO was negligent has no bearing on the degree of its negligence as between LIRR and LILCO, since LIRR was not a party to that action. Damiani, J. P., Suozzi, Rabin and Hawkins, JJ., concur.