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Martinez v. Royal-Pak Sys

Appellate Division of the Supreme Court of New York, First Department
Apr 22, 2004
6 A.D.3d 297 (N.Y. App. Div. 2004)

Opinion

3437, 3437A.

Decided April 22, 2004.

Order, Supreme Court, Bronx County (Barry Salman, J.), entered December 22, 2003, which, in an action for personal injuries by a building employee against the building's owner and the manufacturer of a defective compactor, denied plaintiff's motion to vacate a judgment, same court and Justice, entered July 28, 2003, assessing plaintiff's damages for past and future pain and suffering in the principal amount of $404,000, apportioning liability 50% against plaintiff, 1% against the building owner, 1% against the manufacturer, and 48% against third-party defendant/plaintiff's employer, and awarding plaintiff $2020 as against each of the main defendants, and to substitute therefor a judgment awarding plaintiff $202,000 as against each of the main defendants, unanimously affirmed, without costs. Appeal from the aforementioned judgment, unanimously dismissed, without costs, as superseded by the appeal from the order.

Ginsberg Broome, P.C., New York (Robert M. Ginsberg of counsel), for appellant.

Ahmuty, Demers McManus, Albertson (Brendan T. Fitzpatrick of counsel), for Royal-Pak Systems, respondent.

Galvano Xanthakis, P.C., New York (Craig Lamster of counsel), for Sebco I. Associates, Sebco Management Co., Inc., Sebco Development Corporation and PRC Management Corp., respondents.

Before: Tom, J.P., Saxe, Ellerin, Lerner, JJ.


The motion was properly denied where plaintiff did not plead an exception to CPLR 1601 limiting defendants' liability to their respective equitable shares of fault, and never sought leave to amend his pleadings to include such exception until after the verdict was rendered and the jury was discharged ( see Cole v. Mandell Ford Stores, 93 N.Y.2d 34, 39-40; Morales v. County of Nassau, 94 N.Y.2d 218, 224). We reject plaintiff's contention that the workers' compensation exception contained in CPLR 1602(4) was inferentially raised by the allegation in the third-party complaint that plaintiff is third-party defendant's employee.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


Summaries of

Martinez v. Royal-Pak Sys

Appellate Division of the Supreme Court of New York, First Department
Apr 22, 2004
6 A.D.3d 297 (N.Y. App. Div. 2004)
Case details for

Martinez v. Royal-Pak Sys

Case Details

Full title:MANUEL MARTINEZ, Plaintiff-Appellant, v. ROYAL-PAK SYSTEMS, ET AL.…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Apr 22, 2004

Citations

6 A.D.3d 297 (N.Y. App. Div. 2004)
775 N.Y.S.2d 135

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