Barker v. Menard

• Decision Date: 20 March 1997
• Citation: Barker v. Menard, 655 N.Y.S.2d 186, 237 A.D.2d 839 (N.Y. App. Div. 1997)
• Parties: David BARKER, Appellant, v. Francis MENARD, Individually and doing business as Menard and Sons, et al., Defendants, and Leonard Gadway, Defendant, and Third-Party Plaintiff-Respondent; Hebert Development Corporation, Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 186

655 N.Y.S.2d 186

237 A.D.2d 839

David BARKER, Appellant, v. Francis MENARD, Individually and doing business as Menard and Sons, et al., Defendants and Leonard Gadway, Defendant, and Third-Party Plaintiff-Respondent Hebert Development Corporation, Third-Party Defendant-Respondent.

Supreme Court, Appellate Division Third Department.

March 20, 1997.

Livingston L. Hatch, Plattsburgh, for Appellant.

Horigan, Horigan, Pennock & Lombardo (Krishna K. Singh, of counsel), Amsterdam, for Defendant and Third-Party Plaintiff-Respondent.

Ryan, Orlando & Smallacombe (David T. Luntz, of counsel), Albany, for Third-Party Defendant-Respondent.

Before MIKOLL, J.P., and MERCURE, CREW, WHITE and YESAWICH, JJ.

CREW, Justice.

Appeal from a judgment of the Supreme Court (Ryan Jr., J.), entered October 5, 1995 in Clinton County, upon a verdict rendered in favor of defendant Leonard Gadway.

At all times relevant to this appeal, plaintiff was employed as a laborer by third-party defendant, Hebert Development Corporation (hereinafter HDC). In July 1988, HDC and Dennis Gadway entered into a contract, pursuant to the terms of which Gadway was to perform, inter alia, certain excavation and backfilling work on a condominium project that HDC was developing in Clinton County. The record indicates that as the project unfolded, Gadway performed the excavation work and his brother, defendant Leonard Gadway (hereinafter defendant), performed the backfilling work.

On the day of the underlying accident, plaintiff and a co-worker, Dean Devost, were standing in a trench installing styrofoam insulation. As plaintiff and Devost held the insulation in place by hand, defendant, who was operating a front-end loader, poured sand into the trench, which plaintiff and Devost, in turn, would distribute and tamp down. Although defendant delivered several loads of sand in this manner without incident, on one such trip a large rock fell from the front-end loader and struck plaintiff's foot, causing substantial injuries.

Plaintiff thereafter commenced this action against, among others, defendant, alleging ordinary negligence, motor vehicle negligence and various violations of the Labor Law. Although defendant thereafter commenced a third-party action against HDC and its president, Alan Hebert, the third-party action subsequently was discontinued as to Hebert by stipulation of the parties, and the matter proceeded to trial against only defendant and HDC.

At the close of plaintiff's case, defendant moved to dismiss the Labor Law § 240(1) and § 241(6) causes of action based upon, inter alia, plaintiff's failure to establish that defendant was an owner, contractor or agent within the meaning of those statutes. Supreme Court granted defendant's motion and, additionally, dismissed the third-party complaint against HDC in its entirety. The general negligence claim was submitted to the jury for its consideration, and the jury returned a special verdict finding that defendant was not negligent. Supreme Court entered judgment in favor of defendant, and plaintiff thereafter unsuccessfully moved to set aside the verdict as against the weight of the evidence. This appeal ensued.

Initially, although plaintiff argues that Supreme Court erred in denying his motion to set aside the verdict as against the weight of the evidence, we note that plaintiff failed to file a notice of appeal from Supreme Court's order in this regard. Accordingly, that issue is not properly before this court for review.

Plaintiff next asserts that there was sufficient proof to find that defendant was either a contractor or, alternatively, a statutory agent of HDC and, as such, Supreme Court erred in dismissing the Labor Law causes of action. We cannot agree. As a starting point, there is no proof in the record to support a finding that defendant was a "contractor" within the meaning of Labor Law § 240(1) and § 241(6). Defendant was not a signatory to the contract with HDC...