Gabbamonte v. 16-20 West 19th Street, Inc.

Appellate Division of the Supreme Court of New York

Gabbamonte v. 16-20 West 19th Street, Inc.

14 A.D.2d 518, 217 N.Y.S.2d 345, 1961 N.Y. App. Div. LEXIS 9568

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 6, 1961

StatusPublished

Cited by2 cases

This text of 14 A.D.2d 518 (Gabbamonte v. 16-20 West 19th Street, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gabbamonte v. 16-20 West 19th Street, Inc., 14 A.D.2d 518, 217 N.Y.S.2d 345, 1961 N.Y. App. Div. LEXIS 9568 (N.Y. Ct. App. 1961).

Pincite

Opinion

This is an action by an employee of a contractor against the owner of a building to recover for personal injuries sustained when he fell through the escape hatch on top of a freight elevator when he was walking or standing thereon for purpose of replacing the shoes and gibs on the elevator. The case was submitted to the jury under a charge which authorized a finding by the jury of negligence on the part of the defendant because of a violation of the provisions of section 200 of the Labor Law, a violation of section 240 of the Labor Law, or a violation of common-law duties. The trial court specifically charged that section 240 of the Labor Law was “ applicable to the facts in this case ” in that the top of the elevator, used as a platform by plaintiff and his eoworker, was for the time being a scaffold; and that under the provisions of said section requiring “ that one employing or directing another to perform labor or doing repairs shall give proper protection to the worker, the plaintiff is entitled to the full protection of the statute”. We are of the opinion that under the circumstances here the court was in error in charging that the top of the elevator was a scaffold within the meaning of the provisions of section 240. (See Caddy v. Interborough R. T. Co., 195 N. Y. 415; Broderick v. Cauldwell-Wingate Co., 301 N. Y. 182, 187; cf. Croce v. Buckley, 115 App. [519]*519Div. 354, 357.) Furthermore, under the circumstances here, the defendant was not in the position of “ employing or directing ” the plaintiff within the meaning of section 240. (See Kluttz v. Citron, 2 N Y 2d 379, 383; Blackwood v. Chemical Corn Exch. Bank, 4 A D 2d 650; Bellask v. Coronation Homes, 5 A D 2d 873, affd. 5 N Y 2d 956.) The jury having rendered a general verdict and liability based on a violation of section 240 not being sustainable, the verdict is to be set aside and a new trial granted. (6 Carmody-Wait, New York Practice, p. 617, § 10.) Concur — Rabin, J. P., Valente, McNally, Eager and Steuer, JJ.

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This is an action by an employee of a contractor against the owner of a building to recover for personal injuries sustained when he fell through the escape hatch on top of a freight elevator when he was walking or standing thereon for purpose of replacing the shoes and gibs on the elevator. The case was submitted to the jury under a charge which authorized a finding by the jury of negligence on the part of the defendant because of a violation of the provisions of section 200 of the Labor Law, a violation of section 240 of the Labor Law, or a violation of common-law duties. The trial court specifically charged that section 240 of the Labor Law was “ applicable to the facts in this case ” in that the top of the elevator, used as a platform by plaintiff and his eoworker, was for the time being a scaffold; and that under the provisions of said section requiring “ that one employing or directing another to perform labor or doing repairs shall give proper protection to the worker, the plaintiff is entitled to the full protection of the statute”. We are of the opinion that under the circumstances here the court was in error in charging that the top of the elevator was a scaffold within the meaning of the provisions of section 240. (See Caddy v. Interborough R. T. Co., 195 N. Y. 415; Broderick v. Cauldwell-Wingate Co., 301 N. Y. 182, 187; cf. Croce v. Buckley, 115 App. [519]*519Div. 354, 357.) Furthermore, under the circumstances here, the defendant was not in the position of “ employing or directing ” the plaintiff within the meaning of section 240. (See Kluttz v. Citron, 2 N Y 2d 379, 383; Blackwood v. Chemical Corn Exch. Bank, 4 A D 2d 650; Bellask v. Coronation Homes, 5 A D 2d 873, affd. 5 N Y 2d 956.) The jury having rendered a general verdict and liability based on a violation of section 240 not being sustainable, the verdict is to be set aside and a new trial granted. (6 Carmody-Wait, New York Practice, p. 617, § 10.) Concur — Rabin, J. P., Valente, McNally, Eager and Steuer, JJ.

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Bluebook (online)

14 A.D.2d 518, 217 N.Y.S.2d 345, 1961 N.Y. App. Div. LEXIS 9568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gabbamonte-v-16-20-west-19th-street-inc-nyappdiv-1961.

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