Bernstein v. El-Mar Painting & Decorating Co.
| Decision Date | 27 November 1963 |
| Docket Number | EL-MAR |
| Citation | 13 N.Y.2d 1053,245 N.Y.S.2d 772,195 N.E.2d 456 |
| Parties | , 195 N.E.2d 456 George BERNSTEIN, Respondent, v.PAINTING & DECORATING CO., Inc., Appellant, and Jack Berman et al., Appellants-Respondents. |
| Court | New York Court of Appeals Court of Appeals |
Lazarus I. Levine, Liberty, for appellant.
James M. McLaughlin, Jr., New York City, for appellants-respondents.
Bernard Meyerson, Brooklyn, for respondent.
The plaintiff, having followed the instructions of the painters in mounting the scaffold, cannot be held to be negligent as a matter of law. (Zurich Gen. Acc. & Liab. Ins. Co. v. Childs Co., 253 N.Y. 324, 171 N.E. 391; Meyer v. West End Equities, 12 N.Y.2d 698, 233 N.Y.S.2d 479, 185 N.E.2d 915; Hamblet v. Buffalo Lib. Garage Co., 222 App.Div. 335, 225 N.Y.S. 716.)
The judgment over, however, in favor of the owners against the defendant contractor upon the cross claim must be reversed, because a landlord has a nondelegable duty to use reasonable care in providing for a safe means of ingress to a tenant (Harrington v. 615 West Corp., 2 N.Y.2d 476, 161 N.Y.S.2d 106, 141 N.E.2d 602). To this duty is added the responsibility that the landlord, who employs the contractor to do work in a place where tenants are in the habit of passing, must see that necessary precautions are taken not to endanger the tenants. (Sciolaro v. Asch, 198 N.Y. 77, 91 N.E. 263, 32 L.R.A., N.S., 945; Dollard v. Roberts, 130 N.Y. 269, 272, 29 N.E. 104, 14 L.R.A. 238.) The failure of the landlord to comply with that duty was an act of negligence which bars indemnity. The codefendants are joint tort-feasors. Where, as here, the codefendants have participated in or concurred in the wrong which caused the damage, there is no right of indemnity (Bush Term. Bldgs. Co. v. Luckenbach S. S. Co., 9 N.Y.2d 426, 214 N.Y.S.2d 428, 174 N.E.2d 516).
Judgment, insofar as appealed from by defendant El-Mar Painting & Decorating Co., Inc., modified in a memorandum by reversing the judgment over in favor of defendants Berman and dismissing their cross complaint, with costs to defendant El-Mar against defendants Berman; otherwise judgment affirmed, with costs to pla...
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...precluding his recovery of indemnity where he is under an affirmative duty to act. Bernstein v. El Mar Painting and Decorating Co., 13 N.Y.2d 1053, 245 N.Y.S.2d 772, 195 N.E.2d 456, and 41 Am.Jur.2d, Indemnity, Sec. 21." Under these circumstances, the jury may have found that there was an a......
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...negligence precluding his recovery of indemnity where he is under an affirmative duty to act. Bernstein v. ElMar Painting & Decorating Co., 13 N.Y.2d 1053, 245 N.Y.S.2d 772, 195 N.E.2d 456, and 41 Am.Jur.2d, Indemnity, § 21. If a person seeking indemnity personally participates in an affirm......
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