Agnelli v. L. Silverman Roofing & Sheet Metal Co.

Citation29 Misc.2d 565,215 N.Y.S.2d 648
PartiesJohn AGNELLI, Plaintiff, v. L. SILVERMAN ROOFING & SHEET METAL CO., Inc., Defendant. L. SILVERMAN ROOFING & SHEET METAL CO., Inc., Third Party Plaintiff, v. MALLAD REALTY CORP., Third Party Defendant.
Decision Date04 May 1961
CourtUnited States State Supreme Court (New York)

Winnie & Matis, New York City, for plaintiff.

Bernard Helfenstein, Brooklyn, for defendant and third-party plaintiff; Joel Bernstein, Brooklyn, of counsel.

Hampton & Dietel, New York City, for third-party defendant; Walter J. McMahon, Brooklyn, of counsel. HAROLD TESSLER, Justice.

The third-party defendant moves to dismiss the third-party complaint upon the ground that it does not state facts sufficient to make out a case of liability over.

The action is to recover damages for personal injuries allegedly sustained by the plaintiff, an employee of the third-party defendant, which entered into a contract with the defendant third-party plaintiff to repair the roof of certain premises owned by the third-party defendant.

The plaintiff in the main action sued the roofing contractor alone alleging that while lawfully on the premises of his employer he was struck by a plank 'which was dropped on his head by agents, servants and or employees of the defendant herein' (par. Fourth); that this accident was caused solely by the negligence of the defendant, its agents, servants and or employees (par. Fifth) which 'consisted in doing their work in an unworkmanlike fashion, in an unskillful fashion and in such a grossly reckless and careless way that they dropped the plank on the plaintiff's head' (par. Sixth).

In the third-party complaint, the defendant third-party plaintiff--the roofing contractor--alleges that if plaintiff sustained the personal injuries and damages in the manner and at the time and place alleged in the main complaint, such injuries were caused either through the negligence of the plaintiff or through the active negligence of the owner of the building in failing properly to supervise, inspect and control the work of the various subcontractors or of its own employees and causing the beam or plank to exist on the roof of the aforesaid premises; that it was the third-party defendant 'its servants, agents and/or employees, during the course of the performance of certain work on the said roof, caused the said beam or plank to be dropped and to strike the plaintiff, causing the injuries alleged by him' and in failing adequately to safeguard the plaintiff against...

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