Schnur v. Shanray Construction Corp.

31 A.D.2d 513, 294 N.Y.S.2d 652, 1968 N.Y. App. Div. LEXIS 2953

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 7, 1968
• Status: Published

Opinion

Amended order, entered April 5, 1968, in favor of plaintiff on the issue of liability in this action for personal injuries, unanimously modified, on the law and facts, and the complaint dismissed against defendants Shanray Construction Corp., the general contractor, Bea Tay Holding Corp., Joaneff Realty Corp. and 201 East 19th Street Corp., owners with one bill of costs to these defendants against plaintiff, and with costs to plaintiff against defendant Otis Elevator Co., and otherwise affirmed. Appeals from orders entered May 22, 1967 and June 21, 1967 dismissed, without costs or disbursements. Section 200 of the Labor Law is in effect a statutory codification of the common-law duty to furnish a safe place to work (Employers Mut. Liab. Ins. Co. v. Di Cesare & Monaco Concrete Constr. Corp., 9 A D 2d 379, 383). In order to establish a violation of section 200, there must be notice, actual or constructive, of the condition about which complaint is made. (Zaulich v. Thompkins Sq. Co., 10 A D 2d 492, 496.) There was no evidence that the general contractor or the owners had actual or constructive notice that the defendant Otis’ men were working at the work site. In fact the trial Justice found neither actual nor constructive notice, merely holding that “ presumably ” there was such notice. This finding is insufficient in law and in any event is not sustained by the record. Plaintiff testified that when he started working there were no other workers at the top of the car sling and that he first observed them after the occurrence. Further, the general contractor and the owner are not responsible for the independent acts of subcontractors. The mere retention of the power of general supervision to see that the over-all work proceeds properly and to co-ordinate the actions of subcontractors on the site is insufficient to east them in judgment for the negligent acts of the subcontractors. (Broderick v. Cauldwell-Wingate Co., 301 N. Y. 182, 187.) Concur — Stevens, J. P., Steuer, Capozzoli, Tilzer and McNally, JJ.