86 A.D.2d 597 | N.Y. App. Div. | 1982
In a negligence action to recover damages for personal injuries, etc., defendant appeals from an interlocutory judgment of the Supreme Court, Nassau County (Pantano, J.), dated February 9, 1981, which, after a jury trial limited to the issue of liability only, was in favor of the plaintiffs and against him. Interlocutory judgment affirmed, with costs. Horace Kennedy (plaintiff) was an employee of Walter McKay Electrical Corp., of which defendant Walter McKay was president. The corporation had an office in the basement of a structure owned by defendant in his individual capacity. On the first floor of the structure was a store, vacant since early in 1975, which had been used as a butcher shop. One of the previous tenants had, with defendant’s permission, installed a second-hand walk-in refrigerator box in a corner of the rear of the store. The box was made of wood and measured 10-feet square and 8 to 9 feet high. There were wires running up from the floor, along the outside wall and across the top of the box. The wires were encased in metal pipe. In about October of 1975, defendant began to remove the fixtures from the store in order to make it easier to rent. Plaintiff had disconnected a blower and removed a light and switch from inside the box and had ripped out some of the wiring, using his own personal tools. On January 12, 1976, defendant told plaintiff to work upstairs in his store for a few hours and to remove all wiring from the box. Plaintiff brought up his own tools, but there was a ladder in the store. In the course of his work, plaintiff used the ladder to reach the top of the box, upon which he climbed to remove some debris. After having disconnected a light and removed a blower from inside the box, plaintiff again climbed to the top to reach the pipe-encased wires, which, after running up the outside wall, ran across the top of the box. Shortly after he reached the top, plaintiff heard a loud noise and fell through the roof onto the floor of the box. Defendant had not given plaintiff any specific instructions on how to remove the wires and had not provided any tools or equipment other than the ladder. At the close of plaintiff’s case, defendant moved for a directed verdict. The motion was denied. After both sides rested, the court charged the jury pursuant to sections 200 and 240 of the Labor Law, submitting special interrogatories to the jury and instructing them that a finding for plaintiff under either section must result in a verdict for plaintiff. Defense counsel duly objected to the charge under section 240. The jury returned a verdict for plaintiff, finding for him on both interrogatories. The court denied defense counsel’s motion to set aside the verdict. The trial court should have dismissed plaintiff’s claim based on section