Opinion
March 3, 1994
Appeal from the Supreme Court, Bronx County (Anita R. Florio, J.).
Where plaintiff, who was employed by Chard's, the subcontractor hired by the general contractor Pettorini to replace certain windows on the fourth and seventh floors of a twelve story commercial building owned by Janco and managed by Newmark, suffered an eye injury as the combined result of the owner and general contractor's failure to erect a protective sidewalk bridge and Chard's failure to provide plaintiff with safety goggles as well as its method of removing the old windows by hammering out the glass and allowing glass splinters to fall to the sidewalk below where plaintiff was stationed to warn away passersby, the jury's apportionment of 80% liability against Janco and Newmark and only 5% against Chard's is against the weight of the evidence. Under the circumstances, we believe that
an apportionment of liability of 42 1/2% against Newmark and Janco and 42 1/2% against Chard's, the window replacement specialist which, it appears, was solely in charge of supervising the actual work, as well as the 15% found by the jury against Pettorini, who apparently provided no supervision and who defaulted in appearing at trial, more reasonably reflects the reality of the situation, and we provide accordingly. Inasmuch as plaintiff has subsequently settled with Newmark and Janco for an undisclosed amount, in the event the relevant parties stipulate to our suggested reapportionment of liability, we remand the matter to the trial court to determine the effect, if any, of such reapportionment on any settlements between the parties.
As to the trial court's failure to charge the jury regarding Chard's duties pursuant to the applicable Industrial Code regulations, while it cannot be said to have deprived defendants-appellants of a fair trial, it may have adversely affected the jury's determination of apportionment of liability among the parties. In the event of a new trial, appropriate instructions on the issue should be given.
Concur — Sullivan, J.P., Carro, Wallach, Kupferman and Tom, JJ.