Cangiano v. Charles LoBosco & Son, Inc.

• Decision Date: 10 May 1965
• Citation: 259 N.Y.S.2d 197,23 A.D.2d 860
• Court: New York Supreme Court — Appellate Division
• Parties: Ralph CANGIANO, Respondent, v. CHARLES LoBOSCO & SON, INC., Appellant-Respondent, and L & N Construction Corp., Appellant; CHARLES LoBOSCO & SON, INC., Third-Party Plaintiff-Appellant; Ben RASTELLI and Albert Paltrow, co-partners, doing business under the firm name and style of Rastelli and Paltrow, Third-Party Defendants-Respondents.

Page 197

259 N.Y.S.2d 197

23 A.D.2d 860

Ralph CANGIANO, Respondent, v. CHARLES LoBOSCO & SON, INC., Appellant-Respondent, and L & N Construction Corp., Appellant; CHARLES LoBOSCO & SON, INC. Third-Party Plaintiff-Appellant; Ben RASTELLI and Albert Paltrow, co-partners, doing business under the firm name and style of Rastelli and Paltrow, Third-Party Defendants-Respondents.

Supreme Court, Appellate Division, Second Department.

May 10, 1965.

Michels, Gangel & Walton, New York City, for appellant L & N Constr. Corp.; L. L. Walton, New York City, of counsel.

Emile & Berman and A. Harold Frost, New York City, for C. LoBosco & Son, appellant-respondent and third-party plaintiff-appellant.

Robert Swaybill, New York City, for respondent.

Before CHRIST, Acting P. J., and HILL, RABIN, HOPKINS and BENJAMIN, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injury, in which court's decision, dismissed its third-party Son, Inc. commenced a third-party action against Ben Rastelli and Albert Paltrow (co-partners doing business as Rastelli and Paltrow), the said defendant LoBosco and the defendant L & N Construction Corp. appeal as follows from a judgment of the Supreme Court, Kings County, entered December 10, 1963 after a jury trial:

(1) Each of the said defendant corporations appeals, as limited by its brief, from so much of the judgment as, upon the jury's verdict, awarded damages to the plaintiff against it.

(2) The defendant corporation LoBosco also appeals from so much of the judgment as, upon the court's decision, dismissed its thirdparty complaint.

Judgment, insofar as it is in the plaintiff's favor and against the two corporate defendants, LoBosco and L & N, reversed on the law, without costs, and complaint dismissed without costs. The findings of fact implicit in the verdict are affirmed.

Appeal from the judgment, insofar as it dismissed the third-party complaint of the corporate defendant LoBosco, dismissed as academic, without costs.

This action was brought to recover damages for personal injury sustained as a result of the alleged negligence of the two corporate defendants, L & N Construction Corp. and Charles LoBosco & Son, Inc. The L & N corporation owned wooded property on which it desired to construct houses; and it employed the LoBosco corporation to clear and grade the property. LoBosco employed the partnership of Rastelli and Paltrow to do part of the clearing of trees and the grading. Plaintiff, an employee of the said partnership, was seriously injured by the branch of a tree when at the direction of his employers (Rastelli and Paltrow), who had just felled the tree, plaintiff attempted to push the tree out of the street with a bulldozer which he was then operating.

The case was submitted to the jury on the theory that the owner and general contractor were obligated under rule 23-41 of the Industrial Code promulgated by the New York State Board of Standards and Appeals (12 NYCRR 23-48[b]) to protect the plaintiff by a cab. It is admitted that the bulldozer, which was supplied by the plaintiff's employers, had no cab. The rule on which plaintiff relies concerns steam shovels and other stationary...