Colon v. Board of Ed. of City of New York

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: FOSTER; DESMOND, C. J., and DYE, FULD, FROESSEL and BURKE, JJ., concur with FOSTER; VAN VOORHIS
• Citation: Colon v. Board of Ed. of City of New York, 230 N.Y.S.2d 697, 11 N.Y.2d 446, 184 N.E.2d 294 (N.Y. 1962)
• Decision Date: 06 July 1962
• Parties: , 184 N.E.2d 294 Rafael COLON, Jr., an Infant, by His Guardian ad Litem, Rafael Colon, et al., Plaintiffs, v. BOARD OF EDUCATION OF the CITY OF NEW YORK et al., Defendants. JULIUS SCHULMAN CONSTRUCTION CORP. et al., Third-Party Plaintiffs-Respondents, v. Andrew BEDDEN, Third-Party Defendant-Appellant.

Page 697

230 N.Y.S.2d 697

11 N.Y.2d 446, 184 N.E.2d 294

Rafael COLON, Jr., an Infant, by His Guardian ad Litem, Rafael Colon, et al., Plaintiffs, v. BOARD OF EDUCATION OF the CITY OF NEW YORK et al., Defendants.

JULIUS SCHULMAN CONSTRUCTION CORP. et al., Third-Party Plaintiffs-Respondents, v. Andrew BEDDEN, Third-Party Defendant-Appellant.

Court of Appeals of New York.

July 6, 1962.

Robert A. Dwyer and William H. Morris, New York City, for third-party defendant-appellant.

William F. McNulty, New York City, for third-party plaintiffs-respondents.

FOSTER, Judge.

The main action herein was commenced by the infant-plaintiff, Rafael Colon, Jr., to recover damages for personal injuries sustained by him at Public School No. 25 in New York City, during the course of renovation work, and by his father for loss of services. Plaintiffs sued the Board of Education of the City of New York, Julius Schulman, and the Julius Schulman Construction Corp. Schulman and Schulman Construction Corp., in turn, commenced third-party actions against Andrew Bedden seeking common-law indemnification. The Board of Education cross-claimed against the Schulman corporation, but that cross complaint was dismissed and is not involved here. At the trial, it was stipulated that for purposes of the main action Schulman and Schulman Construction Corp. would be regarded as one and the same.

At the close of all the evidence, the third-party complaints of Schulman against Bedden were dismissed as a matter of law. The jury then returned substantial verdicts against the defendants named in the main action. On appeal to the Appellate Division, the judgment of the trial court, insofar as it directed a recovery against all of the defendants in the main action and dismissed the cross complaint of the Board of Education, was affirmed unanimously. However, the Appellate Division, by a divided court, reversed on the law and on the facts the dismissal of the third-party complaints of Schulman and ordered a new trial thereupon.

The case, as it comes to us, presents this problem: was the recovery against Schulman predicated upon 'passive' negligence only, and was there evidence that appellant Bedden was 'actively' negligent? If questions of fact exist on these issues, then judgment absolute must now be entered in favor of Schulman on its third-party complaints. A summary of the facts, undisputed in their salient features, and the relevant testimony follows:

On September 18, 1956 Julius Schulman entered into a contract with the Board of Education of the City of New York to renovate certain rooms in Public School No. 25, at 149th Street and Tinton Avenue, in the Borough of The Bronx. The work under the contract subsequently was turned over to Julius Schulman Construction Corp., of which Schulman was the president and sole officer. Work commenced on October 1, 1956, but was suspended temporarily on October 5, 1956 because of the default of one of the other contractors on the job. Thus no employees of Schulman were on the job on October 8, 1956.

On October 1, 1956 Schulman had erected a boom in the attic window of the school on the side of the building adjacent to the 'lower' play yard, in order to facilitate the raising and lowering of work appliances and materials to and from this portion of the building. The principal and custodian engineer of the school were aware that the boom had been constructed in the attic window. They had inspected the boom together and concluded that it was safe 'hanging out' of the attic window.

When the work under the contract temporarily ceased on October 5, 1956, the old floor boards and plaster which previously had been removed from the rooms that were being renovated and the other rubbish resulting from the work remained on the premises. This rubbish was piled in room 200 on the second floor and in room 400 on the fourth floor of the building, on the 'lower' play-yard side.

On October 8, 1956 Mr. Schulman telephoned Andrew Bedden, the 'rubbish removal man' frequently used by Schulman, and requested that he remove the rubbish from these rooms. Schulman knew that the customary method of removal of planks and debris on jobs of this kind was by use of a boom; that Bedden had used booms on other jobs, and that the boom constructed by Schulman over the play area was available for Bedden's use. Bedden was instructed to report to the office of the school to apprise the school authorities that the rubbish was about to be removed so that the school schedule could be arranged accordingly. Schulman had promised the school authorities he would furnish such notice. Bedden was not told how or in what manner to perform the work, and was not told specifically that there was a boom in the attic window which could be used to lower the rubbish. Schulman did not tell Bedden to provide any safeguards or precautions if he used the boom, and said nothing about barricading the work areas.

Bedden, accompanied by two men, arrived at the school at approximately 1 o'clock that afternoon. He reported to the office of the school on the ground floor, and, after stating the purpose of his visit, was turned over to the custodian engineer of the school.

The custodian engineer thereafter took Bedden up to room 200 and room 400 and showed him the rubbish that was to be removed. The rooms in which the rubbish was piled had been locked, but the custodian engineer unlocked them for Bedden. After showing Bedden the rubbish that was to be removed, the custodian engineer then went through the building looking for the principal in order to inform him that it was being removed. He was unable to find the principal before the accident resulting in the infant plaintiff's injury herein occurred.

The principal of the school testified that, if he had known that Bedden was going to use the boom in the attic window to remove the rubbish, he certainly would have excluded the children from the lower schoolyard while the work was in progress. Furthermore, he testified that he previously had issued specific instructions to the custodian engineer that no work was to be done in the school by Schulman or anybody under Schulman until he was notified, and that he should have been notified before Bedden was permitted to commence removing the rubbish from the building.

The accident occurred while Bedden and the two men who were assisting him were...