di Suvero v. Gem Window Cleaning Co.

• Court: New York Supreme Court
• Writing for the Court: MATTHEW M. LEVY
• Citation: di Suvero v. Gem Window Cleaning Co., 252 N.Y.S.2d 735 (N.Y. Sup. Ct. 1963)
• Decision Date: 14 October 1963
• Parties: Marco Polo di SUVERO, Plaintiff, v. GEM WINDOW CLEANING CO., Inc., Armor Elevator Company, Inc., Jewish Board of Guardians, Howard C. Forbes, Inc., and J. H. Taylor Construction Co., Inc., Defendants. GEM WINDOW CLEANING CO., Inc., Third-Party Plaintiff, Plaintiff, v. DURABUILD CONSTRUCTION CO. and Giuseppi Giammarella, Third-Party Defendants. Giuseppi GIAMMARELLA, Fourth-Party Plaintiff, v. LIBERTY MUTUAL INSURANCE COMPANY, Fourth-Party Defendant.

Page 735

252 N.Y.S.2d 735

Marco Polo di SUVERO, Plaintiff, v. GEM WINDOW CLEANING CO., Inc., Armor Elevator Company, Inc.,

Jewish Board of Guardians, Howard C. Forbes, Inc.,

and J. H. Taylor Construction Co., Inc.,

Defendants.

GEM WINDOW CLEANING CO., Inc., Third-Party Plaintiff, Plaintiff, v. DURABUILD CONSTRUCTION CO. and Giuseppi Giammarella,

Third-Party Defendants.

Giuseppi GIAMMARELLA, Fourth-Party Plaintiff, v. LIBERTY MUTUAL INSURANCE COMPANY, Fourth-Party Defendant.

Supreme Court, Special and Trial Term, New York County, Part XII.

Oct. 14, 1963.

Kreindler & Kreindler, New York City (Harry E. Kreindler, Milton G. Sincoff and Jack L. Kroner, New York City, of counsel), for plaintiff.

Bernard Helfenstein, Brooklyn (Harold J. Levy and Jacob L. Rothstein, Brooklyn, of counsel), for defendants Gem Window Cleaning Co. Inc., Armor Elevator Co., Inc. and third-party plaintiff Gem Window Cleaning Co. Inc.

Bower, O'Connor & Taylor, New York City (James W. Taylor and William F. O'Connor, New York City, of counsel), for defendants Jewish Bd. of Guardians and Howard C. Forbes, Inc.

John W. Olmstead, New York City, for defendant J. H. Taylor Construction Co. Inc., and fourth-party defendant Liberty Mutual Ins. Co.

Schaffner & Furey, New York City (Edmund F. Lamb and William E. Fay, New York City, of counsel), for third-party defendant Durabuild Construction Co.

Lindenbaum & Young, Brooklyn (William Rosencrans and Simon B. Gluck, Brooklyn, of counsel), for third-party defendant Giammarella and fourth-party plaintiff Giammarella.

MATTHEW M. LEVY, Justice.

The plaintiff was awarded a jury verdict of $300,000 in this personal injury action against two defendants, Gem Window Cleaning Co., Inc. and Howard C. Forbes, Inc. The jury rendered a verdict against the plaintiff insofar as his suit against the defendant Armor Elevator Company, Inc. is concerned. Motions by the unsuccessful defendants to dismiss the complaint, made during the trial, and motions to set aside the verdict and dismiss the complaint, made upon the coming in of the verdict, are now before me for disposition, as are the cross-claims of those defendants, one against the other. ¹

Marco Polo di Suvero, a university graduate, is (or, at least prior to the unfortunate accident hereinafter related, was) a sculptor by vocation. He was 26 years of age at the time of the occurrence, but was already recognized for his artistic ability and undoubted professional promise. He was physically and sexually crippled for life as a result of the accident, and his career as a sculptor has been seriously adversely affected, if not in all respects permanently blighted. At the outset, therefore, let me say that I shall not go further into the matter of damages, and that insofar as the defendants' motions to set aside the verdict are based upon any claim of alleged excessiveness, they are denied.

I shall, however, endeavor to recite, albeit briefly, the essential facts on the issue of liability, as proved upon the trial--keeping in mind that the verdict of the jury resolved questions of credibility and conflicting evidence and inferences in favor of the plaintiff as against the moving defendants (Marton v. McCasland, 16 A.D.2d 781, 782, 228 N.Y.S.2d 756, 757, and the cases therein cited; Fischer v. New York Certral Railroad Company, 188 Misc. 72, 73, 66 N.Y.S.2d 557, 559, affd. 273 App.Div. 135, 138, 77 N.Y.S.2d 196, 198, motion for leave to appeal dismissed 297 N.Y. 956, 80 N.E.2d 351; Fanning v. Maggi, Sup., 127 N.Y.S.2d 152, 158, affd. 282 App.Div. 1067, 126 N.Y.S.2d 551).

As not infrequently happens in the world of art, the plaintiff found it necessary to engage himself, from time to time, in the doing of menial odd jobs for others so as to meet the expenses of living and of sculpturing. On Saturday, March 26, 1960, he was in the temporary employ as a laborer and helper of one Leo Schulemowitz, a cabinet-maker, who conducted a one-man business under the name of Durabuild Construction Co. On that day, the plaintiff accompanied Schulemowitz to the building owned by the Jewish Board of Guardians, located at 120 West 57th Street, New York City. Schulemowitz sought to deliver cabinet tops of lumber, 16 feet in Length and 14 inches in width, to the Child Development Center, a tenant on the twelfth floor. There was no freight elevator. The passenger elevators were recently converted by the defendant Armor from manual to automatic operation, with optional manual control. They went as high as the penthouse level, which was just above the twelfth floor.

John Leddy, the building superintendent, performed general duties relating to the diversified needs of the owner, who occupied a number of floors, and of the tenants in the building. The defendant Howard C. Forbes, Inc., was the managing agent of the building for the commercial tenants. Leddy was paid by the defendant Gem, who, in pursuance of a contract with the owner, provided various employees for the operation and maintenance of the building. On the morning of that Saturday, Leddy suggested to Schulemowitz and authorized him to deliver the long pieces by riding on top of the elevator with the lumber. When the long tops were, later that day, brought into the lobby of the building by Schulemowitz and the plaintiff, Leddy was not there. The only person in the lobby at the time was Giuseppi Giammarella, conceded to be in the general employ of the defendant Gem, and claimed by the plaintiff to have been (in addition to a porter-watchman) one of the elevator operators provided by Gem under its contract with the owner, and alleged by Gem to have been merely a porter-watchman.

The plaintiff offered evidence to the effect that Giammarella knew of the permission already given by Leddy to Schulemowitz, that Giammarella had the key needed to open the elevator doors that Saturday afternoon, when all else in the building was closed, and that he consented if not volunteered to operate the building's south elevator for the task. The men sought to insert the long boards into the cab of the elevator through the ceiling hatchway, but found it impossible to do. They then put the boards on top of the elevator and placed themselves there too in order to hold the planks while Giammarella operated the elevator from inside the cab.

It is undisputed that Giammarella operated the car under automatic control. He pressed the 12th floor button, and up the elevator went to that floor. Upon reaching it in normal automatic fashion, with Schulemowitz and the plaintiff and the plank on top, Giammarella was instructed to take the car down to the 11th floor, so that the men would be able to unload the board on the floor above from the roof of the cab. Although Giammarella testified that he then pressed the number '11' button on the cab panel, the elevator responded by going upward. The two men on top yelled down for him to stop the car, at which point Giammarella testified that he 'closed' the 'stop' button. Nevertheless, the elevator continued moving upward, the top of the board hit the top of the shaft, the board broke and the plaintiff became wedged between the side of the elevator and the shaft, suffering the very severe injuries previously adverted to.

The jury's verdict absolving Armor removed from the case two projected issues involving that defendant--the alleged improper installation of the elevator and its related mechanical apparatus and the alleged malfunctioning thereof. The jury's verdict against the other defendants means that the arrangements for and the operation of the elevator by Leddy and Giammarella, respectively, were negligent in the circumstances. And the issue remaining for consideration on that score is whether sufficient has been shown on the proven facts to warrant the jury in holding Gem and Forbes, or either of them, legally responsible to the plaintiff for that negligence. The jury's verdict did one thing more: it held that the plaintiff had not, by his conduct, proximately caused the accident. And thus, the question for me to resolve on this facts of the case is whether, as a matter of law, the plaintiff was contributorily negligent or had assumed the risk of the accident.

Taking up the last point first, the defendants contend that the plaintiff was guilty of contributory negligence as a matter of law because there were at least six other and safer methods of delivery, and that the plaintiff voluntarily assumed the risk of the most dangerous method. The six possibilities asserted by the defendants are the following: that the long cabinet top could have been cut in half so that each portion could be placed within the cab of the elevator and would fit therein for transportation purposes; that the board, as it was, could have been taken up the twelve flights by walking up and through the stairways; that the plaintiff and his employer could have inserted the long board into the cab through the top hatchway so that only a small portion of it would have extended above the roof of the cab; that the board could have been lashed to the elevator cables so that it would have been unnecessary to have anyone ride with it on top of the elevator; that the board could have been lifted up the elevator shaft by a hoist and pulley arrangement, and thus not operate the elevator above the first floor; and that the board could have been hauled up to the 12th floor window from outside the building.

On the other hand, the plaintiff presented proof that there were no feasible alternatives to the chosen method of delivery. It was uncontroverted that the plaintiff and his employer first attempted to work the board up through the trap door of the elevator in the inside of the cab, and that they were unable to do so. There was also testimony that the board could not be taken up through the stairway. And it could have been inferred by the jury from the proof before it that there was not available in the building at the time any hoist and...