Cangiano v. Charles Lo Bosco & Son, Inc.
| Decision Date | 01 December 1966 |
| Citation | 223 N.E.2d 496,276 N.Y.S.2d 1003,18 N.Y.2d 922 |
| Parties | , 223 N.E.2d 496 Ralph CANGIANO, Appellant, v. CHARLES LO BOSCO & SON, INC., et al., Respondents. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from Supreme Court, Appellate Division, Second Department, 23 A.D.2d 860, 259 N.Y.S.2d 197.
Robert Swaybill, New York City (Daniel Waxman and Jacob W. Friedman, New York City, of counsel), for plaintiff-appellant.
Emile Z. Berman and A. Harold Frost, New York City (Howard Lester, Leonard Sheft and Sheila L. Birnbaum, New York City, of counsel), for defendant-respondent Charles Lo Bosco & Son, Inc.
Michels, Gangel & Walton (L. L. Walton, New York City, of counsel), for defendant-respondent L & N Const. Corp.
Bulldozer operator, who was employed by partnership, brought action against first corporation, which had been retained to backfill and grade wooded realty, and second corporation, which owned the realty, for injuries sustained by the bulldozer operator when he was pushing a felled tree with bulldozer and branch broke loose and struck him in the chest. Recovery was sought on theory that corporations were obligated under rule promulgated by the New York State Board of Standards and Appeals to protect the bulldozer operator by a cab on the bulldozer. The rule related to power shovels and similar excavators and provided that the operator of every shovel shall be protected by a cab or other suitable means, from injury by falling loads, cinders, steam, or water. The first corporation filed a third-party action against partnership, which had been employed by first corporation to do part of the clearing of trees and grading, and which was the employer of the bulldozer operator.
The Supreme Court, Trial Term, Kings County, Thomas E. Morrissey, Jr., J., entered a judgment for the bulldozer operator against the corporations and dismissing the first corporation's third-party complaint, and the corporations appealed.
The Appellate Division entered an order which reversed, on the law, the judgment of the Trial Term and dismissed the complaint, and held that rule of the Board of Standards and Appeals applied to steam shovels and other stationary excavating machines rather than to bulldozers.
The bulldozer operator appealed to the Court of Appeals.
Order affirmed, without costs.
All concur.
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