44 A.D.2d 538 | N.Y. App. Div. | 1974
Interlocutory judgment of Supreme Court, New York County, entered May 24, 1973, adjudging, inter alia, that plaintiff have judgment against defendants Alvord & Swift (“Alvord”), the Port of New York Authority (“Authority ”), and Charles L. Wallace, Inc. (“Wallace”) and apportioning the liability among said defendants equally, modified, on the law and on the facts, to the extent of dismissing the complaint against Alvord and Authority. Except as so modified, said judgment is affirmed, without costs or disbursements. Defendant Authority engaged Alvord to install a new heating system in one of its hangars at La Guardia airport. Alvord retained Wallace to perform certain demolition, masonry, painting and other work. Wallace in turn engaged one subcontractor to remove the existing boiler equipment and duets and another (plaintiff’s employer) to take down the masonry walls in the boiler room. After the boilers had been disposed of (leaving several large holes in the mezzanine floor through'which they extended), plaintiff and a coworker were instructed by Wallace’s foreman to remove a masonry wall (where part of the duct work remained attached) on the mezzanine. Plaintiff was too short to reach a portion of the wall and stood aside while his eoworker and Wallace’s foreman tried to knock it down with a plank. They succeeded, but when it fell, the duct, which was also dislodged, struck a nearby ladder which in turn hit plaintiff, causing him to fall through one of the openings to the floor below. The trial court found all three defendants equally culpable for failure to comply with section 241 of the Labor Law and the former rule of the State Industrial Code relating to such hazard (12 NYCRR 23.3 [i]). Section 241 of the Labor Law, like section 200 thereof, has been construed as merely a codification of the common-law duty of owners and contractors to provide subcontractors and others lawfully on the premises with