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WAGER v. PELHAM UNION FREE SCHOOL DISTRICT

2012-00613.

108 A.D.3d 84 (2013)

966 N.Y.S.2d 126

2013 NY Slip Op 3475

RICHARD WAGER et al., Appellants, v. PELHAM UNION FREE SCHOOL DISTRICT et al., Respondents. PELHAM UNION FREE SCHOOL DISTRICT, Third-Party Plaintiff-Respondent, v. WAGER CONTRACTING CO., INC., Third-Party Defendant-Respondent. (Action No. 1.) RICHARD WAGER et al., Appellants, v. NEW YORK CITY HEALTH & HOSPITALS CORPORATION, Respondent. (Action No. 2.)

Appellate Division of the Supreme Court of New York, Second Department.

Decided May 15, 2013.

Attorney(s) appearing for the Case

Kramer, Dillof, Livingston & Moore, New York City ( Matthew Gaier and Norman Bard of counsel), for appellants.

Armienti, DeBellis, Guglielmo & Rhoden, LLP, New York City ( Vanessa M. Corchia and Jerry Granata of counsel), for Pelham Union Free School District, respondent.

Rawle & Henderson, LLP, New York City ( Robert A. Fitch and Marc A. Sherman of counsel), for Savin Engineers, P.C. and another, respondents.

Stewart, Greenblatt, Manning & Baez and Montfort, Healy, McGuire & Salley, Garden City ( Donald S. Neumann, Jr. of counsel), for third-party defendant-respondent.

Michael A. Cardozo , Corporation Counsel, New York City ( Pamela Seider Dolgow and Fay Ng of counsel), for respondent in action No. 2.

DICKERSON, AUSTIN and MILLER, JJ., concur.

OPINION OF THE COURT

DILLON, J.P.

This appeal presents the novel question of whether a governmental entity may waive the benefit of a statutory venue provision in an instance where an action against the governmental entity was commenced in a proper county in the first instance.

On the afternoon of October 31, 2009, Richard Wager (hereinafter Wager) was working on the roof of the Colonial Elementary School in Pelham when a portion of the roof allegedly...

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