Franco v. Jay Cee of New York Corp.

• Decision Date: 09 January 2007
• Docket Number: 9186.
• Citation: 827 N.Y.S.2d 143,2007 NY Slip Op 00085,36 A.D.3d 445
• Parties: ANTHONY J. FRANCO, Appellant, v. JAY CEE OF NEW YORK CORP., Respondent, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

36 A.D.3d 445

827 N.Y.S.2d 143

2007 NY Slip Op 00085

ANTHONY J. FRANCO, Appellant, v. JAY CEE OF NEW YORK CORP., Respondent, et al., Defendant.

9186.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided January 9, 2007.

Order, Supreme Court, New York County (Rosalyn Richter, J.), entered on or about May 26, 2005, which denied plaintiff's motion to set aside the jury verdict insofar as it found no liability against defendant Jay Cee on the Labor Law § 241 (6) cause of action, unanimously reversed, on the law, without costs, the motion granted to the extent that the verdict is set aside and the matter remanded for a new trial.

Plaintiff, an apprentice elevator mechanic employed by nonparty Pace Elevator, Inc., was injured during the course of an elevator modernization project at a building owned by defendant Jay Cee of New York Corp. In January 2000, Pace entered into a contract with Jay Cee to convert one of the elevators in the premises from manual operation to automatic. The building had two elevators, installed in 1903, which were configured in an unusual manner in that they shared the same elevator shaft with no separation, and the counterweight for elevator number 1 was directly behind elevator number 2, the elevator to be modernized. On the date of the accident, plaintiff was installing wiring on the top of elevator number 2, with his leg hanging off the rear of the elevator, when the counterweight from elevator number 1 came down against his leg, causing him injury. Prior to plaintiff's accident, a supervising mechanic and another coworker had been hit by a portion of the same counterweight, but were not injured.

Plaintiff commenced the instant action against Jay Cee and TJK, the managing agent, alleging negligence and violations of Labor Law §§ 200, 240 (1) and § 241 (6). Following discovery, Jay Cee moved for summary judgment dismissal of the complaint. Insofar as relevant, the motion court (Diane J. Lebedeff, J.) denied the motion with respect to the section 241 (6) cause of action, stating that "the accident does fall squarely within the intended scope and protection of Labor Law Sec. 241 (6), as it incorporates 12 NYCRR 23-2.5 of the Industrial Code." The Industrial Code section to which the court was referring, 12 NYCRR 23-2.5 (b) (3), states: "Where any elevator is being installed, repaired or replaced and persons are working in the shaft, a solid or wire mesh partition shall be provided where necessary to prevent such persons from contacting any adjacent operable elevator or counterweight."

Plaintiff's negligence, section 200 and section 241 (6) claims proceeded to trial, after which the jury found that defendant Jay Cee was not negligent and did not violate Labor Law § 241 (6) on the basis of section 23-2.5 (b) (3).

Thereafter, plaintiff moved to set aside the verdict and for judgment on the Labor Law § 241 (6) cause of action. Alternatively, plaintiff argued that the verdict was against the weight of the evidence. Plaintiff made three arguments in his posttrial motion: that Justice Lebedeff's decision denying Jay Cee's motion for summary judgment on the section 241 (6) cause of action was law of the case that required the trial court to instruct the jury that Jay Cee had violated section 23-2.5 (b) (3) as a matter of law; that the trial court improperly allowed certain defense witnesses to testify regarding their interpretation of section 23-2.5 (b) (3), as well as the Building Code, the Fire Code and the Americans with Disabilities Act; and that the verdict should be set aside and judgment granted in plaintiff's favor on the section 241 (6) cause of action, with a new trial ordered solely on the issue of comparative negligence and damages. We reverse.

Initially, we reject plaintiff's argument, as to the preclusive effect of Justice Lebedeff's order denying Jay Cee's motion for summary judgment. Plaintiff interprets this ruling as a binding judicial determination that Industrial Code § 23-2.5 (b) (3) applies in this particular case and was violated. We disagree. The denial of Jay Cee's motion for summary judgment established no more than the existence of triable issues of fact (see Hammond v International Paper Co., 178 AD2d 798, 799-800 [1991]). Although Justice Lebedeff's language did evince a belief that section 23-2.5 (b) (3) was applicable, it did not purport to make a definitive ruling on any violation thereof or on Jay Cee's liability under Labor Law § 241 (6). Thus, the law of the case doctrine did not require the trial court to instruct the jury that section 23-2.5 (b) (3) was violated as a matter of law.

However, we agree with plaintiff's claim of error regarding the testimony of certain defense witnesses. Plaintiff contends that the trial court improperly allowed defense witnesses Schindler and Murray, the latter an expert witness, to testify as to the Industrial Code's legal requirements. Specifically, plaintiff objects to their testimony that section 23-2.5 (b) (3) required placement of the partition between the elevator shaftways, and that such placement would have violated the one-inch clearance requirement in the Building Code, thus rendering section 23-2.5 (b) (3) inapplicable under the circumstances. The trial court rejected these arguments, finding that the defense witnesses' testimony "did not alter the plain language of the regulation, but rather offered probative testimony interpreting the term `where necessary,' which is in the regulation."

Contrary to the trial court's ruling, our review of the defense...