Summary
In Johnston v National Railroad Passenger Corp. (161 AD2d 288 [1st Dept 1990]), plaintiff was awarded damages against defendants Amtrak and Allied Maintenance Corporation, 30% and 70% respectively.
Summary of this case from R D v. Scottsdale Ins. Co.Opinion
May 8, 1990
Appeal from the Supreme Court, New York County (Bruce McM. Wright, J.).
In this personal injury action, the jury awarded plaintiff damages and apportioned liability between Amtrak and Allied at 30% and 70%, respectively, When Amtrak sought indemnification from Allied on a clause contained in the maintenance contract between the two, Allied asserted that the contractual indemnification was barred by General Obligations Law § 5-322.1 to the extent Amtrak, as indemnitee, had itself been negligent for plaintiff's injuries. (See, DeFilippis Crane Serv. v. Joannco Contr. Corp., 132 A.D.2d 517.)
Upon renewal, Amtrak asserted, for the first time, the applicability of 45 U.S.C. § 546 (d), for the proposition that leases and contracts entered into by Amtrak shall be governed by the laws of the District of Columbia, and claimed that since the District of Columbia has no analogous statute to New York's General Obligations Law § 5-322.1, there would be no bar to enforcement of the indemnification agreement. Counsel for Amtrak alleged that he was unaware of the Federal statute at the time of the original motion.
We see no reason to disturb the resettled order appealed from. Contrary to Allied's claim, there was no stipulation between defendants, or any implied agreement, to resolve the issue arising out of the indemnification agreement solely by New York law. (See, Mitchell v. New York Hosp., 61 N.Y.2d 208, 214.) Furthermore, there was no bar to granting renewal upon the Federal statute, since a motion for renewal may be based upon law not previously considered (Prude v. County of Erie, 47 A.D.2d 111, 113-114) and the excuse for neglecting in the first instance to raise the Federal statute was valid. Counsel's failure to assert the statute earlier falls within the valid excuses of mistake, inadvertence or excusable neglect. (Foley v. Roche, 68 A.D.2d 558, 568.) Last, Allied has failed to demonstrate any prejudice arising from Amtrak's failure to earlier assert the Federal statute.
Concur — Kupferman, J.P., Carro, Milonas, Kassal and Ellerin, JJ.