Opinion
February 2, 1999
Appeal from the Supreme Court, New York County (Carol Arber, J.).
Plaintiff, while performing his job at a parking garage, was injured when his left leg became caught between an upwardly moving elevator platform and the wall of the elevator shaft. As is here relevant, plaintiff sued the direct defendants (collectively, Ardmore), which own the building containing the garage; Ardmore impleaded third-party defendant Walnut Parking Corp. (Walnut), lessee and operator of the garage and plaintiffs employer at the time of the accident; and Walnut asserted a fourth-party claim against Bergen-Passaic Elevator of New York, Inc. (Bergen), which had serviced the elevator. Prior to trial, Ardmore's answer, but not its third-party complaint, was stricken as a sanction for default in providing discovery; the striking of Ardmore's answer is not challenged on this appeal. After trial, which resulted in a jury verdict attributing 90% of the fault for the accident to Walnut, 10% of the fault to plaintiff, and finding Ardmore and Bergen to be without fault, the court granted Ardmore's post-trial motion to amend its third-party complaint to conform to the proof by adding a claim for contractual indemnification against Walnut based on a provision of Walnut's lease, and for judgment on such claim. Thereafter, the court signed a judgment and then a resettled judgment awarding plaintiff recovery directly against Walnut, a party against which plaintiff had never asserted a cause of action. Both the judgment and resettled judgment, however, were rejected by the clerk when submitted for entry. Ultimately, a third resettled judgment, awarding plaintiff recovery of the entirety of its damages against Ardmore and awarding Ardmore indemnification for all such damages against Walnut, was entered.
On appeal, Ardmore and Walnut argue that the judgment entitling plaintiff to recover all of his damages from Ardmore should be reversed on the ground that it is inconsistent with the jury's verdict that found that Ardmore was not at fault for plaintiffs accident. This contention is without merit. The liability of Ardmore, the sole defendant in the main action, to plaintiff was premised upon its default and was not affected by the jury's apportionment of fault, the purpose of which was not and could not have been to determine the extent of the liability of the single defendant in the main action, but to provide a basis upon which to resolve the third-party and fourth-party claims for CPLR article 14 contribution and common-law indemnification. Moreover, because the first two judgments the court signed, which purported to award plaintiff recovery directly against third-party defendant Walnut, were never entered within the meaning of CPLR 5016 (a), the court retained jurisdiction to correct the substantive defects of such judgments through resettlement.
We reject Walnut's argument that the trial court erroneously granted Ardmore's post-trial motion to add the claim for contractual indemnification pursuant to the lease and for judgment thereon. Contrary to Walnut's contention that it was prejudiced in that it might have attempted to defeat application of the lease indemnification provision by proving Ardmore's negligence had a contractual indemnification claim been pleaded prior to trial, the lease plainly required Walnut to indemnify Ardmore for all liabilities arising out of, inter alia, "any accident, injury or damage which shall happen in or about the demised premises", without regard to whether the liability arose to any extent from Ardmore's own negligence, and was enforceable in this respect under General Obligations Law § 5-321 Gen. Oblig. ( see, Hogeland v. Sibley, Lindsay Curr Co., 42 N.Y.2d 153, 161). Further, we find that Walnut had ample notice well in advance of trial that Ardmore might assert a contractual indemnification claim, and whether Ardmore bore any share of fault for the accident was at issue in any event by virtue of Ardmore's claims for contribution and common-law indemnification. Walnut's argument that the express terms of the lease do not require it to indemnify Ardmore for liabilities imposed due to procedural default is improperly raised for the first time in Walnut's reply brief, and is in any event without merit. We note that Walnut has not argued on appeal that Ardmore's third-party complaint should have been stricken along with its answer, and it apparently failed to move for such relief in Supreme Court.
We do not find any abuse of discretion by the trial court in precluding defendants' expert witness. At no time did defendants offer any explanation for the unavailability of this witness on the date appointed for his testimony. The medical issues were fully presented to the jury on an extensive and objective hospital record, which provides full evidentiary support for the damages verdict.
Concur — Ellerin, J. P., Williams, Wallach and Tom, JJ.