Abram v. Lyon Steel Rigging Corp.
| Decision Date | 20 May 1985 |
| Citation | 489 N.Y.S.2d 281,111 A.D.2d 291 |
| Parties | Aaron ABRAM, etc., Plaintiff-Respondent, v. LYON STEEL RIGGING CORPORATION, Appellant-Respondent, Elmwood Park, Inc., et al., Appellants, Hoffman International, Inc., Defendant-Respondent, et al., Defendant, The City of New York, et al., Third-Party Defendants, Duo Plumbing & Heating Company, Third-Party Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Smith, Mazure, Director & Wilkins, New York City (Howard Borowick and Lewis I. Wolf, New York City, of counsel), for appellant-respondent.
Alexander, Ash, Schwartz & Cohen, P.C., New York City (Marshall M. Kolba, New York City, of counsel), for appellant Elmwood Park, Inc.
Evans, Orr, Pacelli, Norton & Laffan, P.C., New York City (Alfred V. Norton, Jr. and William C. Morris, New York City, of counsel), for appellant Formigli Corp.
Fuchsberg & Fuchsberg, New York City (Paul F. McAloon and Abraham Fuchsberg, New York City, of counsel), for plaintiff-respondent.
Dolan, McMahon & Martine, New York City (Diane C. Pfirrman, New York City, of counsel), for respondent Hoffman International, Inc.
Montfort, Healy, McGuire & Salley, Mineola (E. Richard Rimmels, Jr., Mineola, of counsel), for third-party defendant-respondent.
Before TITONE, J.P., and BRACKEN, NIEHOFF and RUBIN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for wrongful death, defendants Formigli Corp. (Formigli) and Elmwood Park, Inc. (Elmwood), separately appeal from a judgment of the Supreme Court, Kings County, entered July 28, 1983, which is in favor of plaintiff and against them in the principal sum of $450,977, upon a jury verdict. Elmwood also appeals from a supplemental judgment of the same court, entered November 23, 1983, which, inter alia, incorporated the provisions of the judgment entered July 28, 1983, Formigli appeals from the supplemental judgment except insofar as said supplemental judgment awarded it judgment over and against Elmwood, and Lyon Steel Rigging Corporation (Lyon) appeals, as limited by its brief, from stated portions of that supplemental judgment. (We treat Lyon's notice of appeal from the judgment as a premature notice of appeal from the supplemental judgment.)
Appeals from the judgment entered July 28, 1983 dismissed, without costs or disbursements. That judgment was superseded by the supplemental judgment.
Supplemental judgment entered November 23, 1983 modified, on the law and in the exercise of discretion, by (1) deleting so much of the first decretal paragraph thereof as awarded the principal sum of $450,977 against defendants Elmwood and Formigli, (2) deleting the provision thereof which apportioned liability at 70% to Lyon, 15% to Elmwood, and 15% to Formigli, (3) deleting the provisions thereof incorporating an order of the Supreme Court, Kings County (Lawrence, J.), entered October 31 1983, which granted Formigli's motion for contractual indemnification against Elmwood, denied Formigli's motion for indemnification against Lyon and denied Elmwood's motion for indemnification against Lyon, and (4) by adding a provision thereto to reflect the fact that the action by Lyon against Hoffman International Inc. was dismissed. As so modified, supplemental judgment affirmed, without costs or disbursements, and new trial granted to Elmwood and Formigli as to plaintiff, with respect to Lyon's, Elmwood's and Formigli's proportionate share of liability vis a vis each other, and with respect to Formigli's claim against Elmwood and Formigli's and Elmwood's claim against Lyon. The judgment entered July 28, 1983 is modified accordingly.
Plaintiff's decedent was killed while working at a construction site owned by Elmwood, when a crane, leased and operated by Lyon, tipped forward, causing a heavy staircase to fall on him. Lyon had been hired by defendant Formigli, a subcontractor on the job, to erect concrete portions of a building. Plaintiff, as administrator of the decedent's estate, brought this action to recover damages for wrongful death. Elmwood, Lyon and Formigli brought various cross claims and Lyon brought a third-party action.
At trial, proof was offered to establish that the crane was overloaded, that insufficient supports had been placed under the crane and that Elmwood's failure to compact the backfill area resulted in an inability of the ground area to sustain the load. Over objection, the trial court merged the theories of common-law negligence and liability under Labor Law § 241(6), and the verdict sheet, to which objection was also taken, also only required the jury to state whether a particular defendant was negligent, without specification of the theory.
The jury returned a plaintiff's verdict and apportioned liability at 70% to Lyon, 15% to Elmwood, and 15% to Formigli. After trial, Elmwood sought common-law indemnification against Lyon. That motion was denied, the trial court explaining that while common-law indemnification is available to those defendants who are held liable solely by reason of their vicarious liability "was ample evidence from which the jury could and apparently did conclude that all of the defendants were guilty of some culpable conduct which resulted in the death of the decedent".
In Lagzdins v. United Welfare Fund-Security Div. Marriott Corp. (77 A.D.2d 585, 586-587, 430 N.Y.S.2d 351), we emphasized the need for a special verdict in multitheory construction accident litigation. We explained the distinction between the proof required in common-law negligence (Labor Law § 200), and a Labor Law § 241(6) claim, and the necessity to separately instruct the jury on each element, as follows:
"In order to recover under subdivision 1 of section 200 of the Labor Law, plaintiffs were required to establish that the defendants breached their duty to provide a place of work that is 'so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the...
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