Opinion
March 1, 1971
In a negligence action by an employee of a subcontractor on a construction job to recover damages for personal injuries, (1) defendant A.J. McNulty Co., another subcontractor, appeals (a) from so much of an order of the Supreme Court, Kings County, dated July 13, 1970, amending an interlocutory judgment of said court entered May 11, 1970 upon a jury verdict after trial on the issues of liability only, as is in favor of plaintiff and against said defendant and (b) from the similar portion of said interlocutory judgment of May 11, 1970; (2) plaintiff cross-appeals (a) from so much of said order of July 13, 1970 as dismissed its complaint as against defendants 43rd Street Estates Corp. and Sky-Way Park Avenue, Inc., the owners-general contractors, upon the trial court's decision at the end of the trial, and (b) from the similar portion of said interlocutory judgment of May 11, 1970; and (3) third-party plaintiffs 43rd Street Estates Corp. and Sky-Way Park Avenue, Inc., cross-appeal (a) from so much of said order of July 13, 1970 as dismissed their third-party complaint against third-party defendant G.B.S. Construction Corp., plaintiff's employer, upon the trial court's decision at the end of the trial, and (b) from the similar portion of said interlocutory judgment of May 11, 1970. Appeals from interlocutory judgment of May 11, 1970 dismissed as academic, without costs. That interlocutory judgment was superseded by the order of July 13, 1970. Order of July 13, 1970 reversed insofar as appealed from by defendant A.J. McNulty Co., on the law and the facts, with costs to said defendant against plaintiff, and plaintiff's complaint as against said defendant dismissed. Order of July 13, 1970 reversed insofar as appealed from by plaintiff and defendants 43rd Street Estates Corp. and Sky-Way Park Avenue, Inc., on the law, and, as between plaintiff and said defendants and between said defendants, as third-party plaintiffs, and third-party defendant G.B.S. Construction Corporation, action severed and new trial granted, with costs to abide the event as between plaintiff and said defendants and without costs as to said third-party defendant. The questions of fact involved in said portions of the case have not been considered. Plaintiff, an employee of the concrete subcontractor, G.B.S. Construction Corporation, was struck on the head by a steel hook while working on the sixth floor of a construction job. The hook allegedly came through a one-foot-square hole which had been cut out of the seventh-floor deck. In our opinion the verdict against A.J. McNulty Co., the steel subcontractor, was wholly unsupported by the evidence. Its employees could not have left hooks lying about on the decking of the seventh floor, for the reason that they had stopped working on the job at least four or five days before the installation of the deck. There was no proof in the case from which a jury could find that the steel subcontractor was responsible for the presence of the hook on the seventh floor. Plaintiff did not testify; nor was any reason advanced for his failure to do so; and, were we not dismissing the complaint as against the steel subcontractor, we would grant a new trial as against the latter, based upon plaintiff's failure to establish his freedom from contributory negligence by means of proper direct or circumstantial evidence (cf. Weston v. City of Troy, 139 N.Y. 281; Wiwirowski v. Lake Shore Michigan So. Ry. Co., 124 N.Y. 420). A case sufficient to go to the jury was made out as against the owners-general contractors, 43rd Street Estates Corp. and Sky-Way Park Avenue, Inc., subject to the missing proof of plaintiff's freedom from contributory negligence which might be supplied at the new trial. The evidence most favorable to plaintiff indicated that Ferrante, the owners-general contractors' construction superintendent, was in charge of safety on the job. He was aware of the presence of openings in the decks and knew that those openings constituted a danger to persons working under them. The jury could have found that at the time of the accident the seventh floor was a commonly used portion of the premises (see Naso v. Wates Co., 21 A.D.2d 679); no work was in progress requiring the holes to be left uncovered (see Giorlando v. Stuyvesant Town Corp., 4 A.D.2d 701; Vivian v. J.W. Enterprises, 16 A.D.2d 933; La Rocca v. Diesel Constr. Co., 31 A.D.2d 951); the holes constituted a dangerous condition; and the owners-general contractors, while aware of the problem, did nothing to correct it. The third-party complaint against G.B.S. Construction Corp., the concrete subcontractor, should be reinstated, since it cannot be determined at this time whether the owners-general contractors, if held liable, will be found guilty of active negligence, in violation of section 241 Lab. of the Labor Law, or of passive negligence (cf. McCants v. Wilmorite, Inc., 9 A.D.2d 724). Rabin, P.J., Martuscello, Shapiro, Christ and Brennan, JJ., concur.