Campoli v. Endicott Const. Services, Inc.

• Decision Date: 07 July 1964
• Citation: 21 A.D.2d 947,251 N.Y.S.2d 347
• Parties: Vivian R. CAMPOLI, as Administratrix of the Estate of Salvatore J. Campoli, Deceased, Appellant, v. ENDICOTT CONSTRUCTION SERVICES, INC., et al., Respondents. George W. WARNECKE, Defendant and Third-Party Plaintiff-Respondent, v. TUNNICLIFF CONSTRUCTION COMPANY et al., Third-Party Defendants-Respondents. (And 2 other cross actions.)
• Court: New York Supreme Court — Appellate Division

Page 347

251 N.Y.S.2d 347

21 A.D.2d 947

Vivian R. CAMPOLI, as Administratrix of the Estate of Salvatore J. Campoli, Deceased, Appellant, v. ENDICOTT CONSTRUCTION SERVICES, INC., et al., Respondents.

George W. WARNECKE, Defendant and Third-Party Plaintiff-Respondent, v. TUNNICLIFF CONSTRUCTION COMPANY et al., Third-Party

Defendants-Respondents. (And 2 other cross actions.)

Supreme Court, Appellate Division, Third Department.

July 7, 1964.

Matthew J. Armstrong, Binghamton, for plaintiff-appellant (John Harbachuk, Binghamton, of counsel).

Levene, Gouldin & Thompson, Robert H. Reeder, Binghamton, for defendant-respondent Endicott.

Night, Keller & Relihan, Chandler Y. Keller, Binghamton, for respondent Stage etc.

Hinman, Howard & Kattell, Martin F. Holleran, Jr., Binghamton, for respondent Warnecke.

Kramer, Wales & Robinson, Donald W. Kramer, Binghamton, for respondent County of Tioga.

Chernin & Gold, Israel Margolis, Binghamton, for third party defendants-respondents Tunnicliff & McDonald Construction Co.

Before GIBSON, P. J., and HERLIHY, REYNOLDS, TAYLOR and AULISI, JJ.

PER CURIAM.

Plaintiff's intestate sustained fatal injuries in the cave-in of an excavation in which he was laying sewer pipe.

Summary judgment was properly granted dismissing the complaint as against defendant owner Warnecke and, as necessarily followed, dismissing Warnecke's third-party complaint against his general contractors. The complaint, as limited by the bill of particulars, charged Warnecke with liability for common-law negligence and for violation of subdivision 6 of former section 241 of the Labor Law, as constituted on June 20, 1957, the date of the accident, and of the rules adopted pursuant thereto. Absent any control or direction of the work by him, the owner was not liable under common-law principles or under the statute (see Wright v. Belt Associates, 14 N.Y.2d 129, 249 N.Y.S.2d 416, 198 N.E.2d 590), assuming arguendo that the work itself was within the intendment of the statute. The bare fact that the engineer who designed the project for the owner occasionally visited the work site constituted no proof of direction or control by the owner. (Olsommer v. Walker & Sons, 4 A.D.2d 424, 433, 166 N.Y.S.2d 323, affd. 4 N.Y.2d 793, 173 N.Y.S.2d 28.) Upon the production upon the motion of affirmative proof that neither the owner not his engineer retained or exercised any direction or control of the work, plaintiff was required to make some evidentiary showing to sustain her allegations of direction and control, but this she failed to do.

For like reasons, the summary dismissal of the complaint against defendant County of Tioga was proper.

Summary judgment should not, however, have been granted in favor of defendants Endicott and Stage, who were engaged by the general contractors (the employers of plaintiff's intestate) to perform the actual excavation work. Special Term found that Endicott and Stage were not subcontractors and that their employees became the ad hoc employees of the general contractors. From examinations before trial, plaintiff has adduced at least minimal proof permitting inference that the employees had not completely passed from the control of their respective general employers; at least it cannot be held upon the papers before us that, as a matter of law, they had. (See Irwin v. Klein, 271 N.Y. 477, 484, 3...