Italiano v. Jeffrey Garden Apts. Section II, Inc.

• Decision Date: 28 January 1957
• Parties: Anthony ITALIANO, Respondent, v. JEFFREY GARDEN APTS. SECTION II, Inc., Atlas Fence Company and Dallas D. Fox, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 338

159 N.Y.S.2d 338

3 A.D.2d 677

Anthony ITALIANO, Respondent, v. JEFFREY GARDEN APTS. SECTION II, Inc., Atlas Fence Company and Dallas D. Fox, Appellants.

Supreme Court, Appellate Division, Second Department.

Jan. 28, 1957.

Peter M. J. Reilly, New York City, for Jeffrey Garden Apts. Section II, Inc., Charles R. Mullin, Brooklyn, on the brief.

Bernard Meyerson, Brooklyn, for respondent.

William F. McNulty, New York City, for Atlas Fence Co.

Before NOLAN, P. J., and WENZEL, BELDOCK, MURPHY and HALLINAN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, alleged to have been incurred as a consequence of defendants' negligence, defendants appeal from separate orders severally denying their respective formal motions for a dismissal of the complaint and the entry of judgment in their favor, amounting to a directed verdict, pursuant to section 457-a of the Civil Practice Act and rule 60-a of the Rules of Civil Practice, made after the jury had disagreed on a verdict after an eight-day trial of the issues. The defendants Jeffrey Garden Apts. Section II, Inc., and Atlas Fence Company additionally appeal from the denial of their respective oral motions to dismiss the complaint, made at the end of the plaintiff's case and at the close of the entire case.

Orders reversed on the law, with costs, motions granted, and complaint dismissed.

The respondent, a bricklayer's helper with more than 10 years' experience, was injured when he fell from the roof of a garage located on premises upon which construction for a housing development was in progress. He was on the premises as an employee of the masonry subcontractor. On the day prior to his injury, by use of a scaffold as his place of work, respondent and two others were engaged in washing down the exterior of a courtyard brick wall with a preparation of acid and soda. The scaffold was descending toward the level of the garage roof, located about 10 feet above ground level. Paralled with the edge of the roof, and set in about 12 to 15 inches, there was a line of upright poles, spaced about 6 feet apart. The end pole was about 10 or 12 inches away from the wall abovementioned and in the path of the descending scaffold. These poles had been erected as a preliminary step in the construction of a chain link wire fence planned to be three feet, six inches high, when completed. On the day of the accident, the fence was still incomplete, without wiring or crossbars affixed. Respondent knew that the work of putting up the fence was still unfinished.

His claim is that on the day before the accident, one of the construction superintendents of the appellant Jeffrey Garden, owner and general contractor, had been informed that the end pole hindered the scaffold from further descent. The construction superintendent directed respondent and his fellow employees to leave the pole undisturbed take down the scaffold, and wash the wall from the garage roof. On the day of the accident, respondent used the garage roof as a platform instead of the scaffold. He squeezed himself in between the end pole and the wall, grasped the pole with his left hand, clutched his brush with his right hand, and crouched forward to reach a portion of the wall which extended out about two feet from the edge of the roof. Upon the first stroke of the brush, the pole collapsed, and respondent and the pole were precipitated to the ground level.

Affording the respondent the benefit of every fact that a jury could find from the proof and every reasonable inference that might be drawn therefrom, we are unable to ascribe any actionable negligence on the part of the appellants which required submission of that question to the jury. Gallagher v. Citizens Water Works to Town of Highlands, 278 App.Div. 792, 104 N.Y.S.2d 195, affirmed 303 N.Y. 805, 104 N.E.2d 363. In our view, appellant Jeffrey Garden owed to respondent the duty of furnishing him with a safe place to work. Wohlfron v. Brooklyn Edison Co., 238 App.Div. 463, 265 N.Y.S. 18, affirmed 263 N.Y. 547, 189 N.E. 691. That duty did not embrace, however, requirements 'beyond the bounds of what is practicable and reasonable', Caspersen v. La Sala Bros., 253 N.Y. 491, 495, 171 N.E. 754, or necessitate that the owner intervene to deter a subcontractor's employee from doing his work without a safety device which the subcontractor neglects to furnish. Borshowsky v. B. Altman & Co., 280 App.Div. 599, 116 N.Y.S.2d 299, affirmed 306 N.Y. 798, 118 N.Y.S.2d 818. In the case at bar, respondent's employer had the contractual duty to act as an 'independent contractor', to furnish all tools, scaffolds, equipment and supplies, and to provide a foreman. That employer, however, did not provide respondent with any safety equipment or any foreman to give direction as to the method of work to be pursued in the area where respondent was injured, while he was at work on such employer's business at the place where such business had to be pursued. The owner does not breach his duty when the place in which a subcontractor's employee is injured is neither a place of work provided by the owner nor a way of approach thereto. Gambella v. John A. Johnson & Sons, Inc., 285 App.Div. 580, 582, 140 N.Y.S.2d 208, 210; Butler v. D. M. W. Contracting Co., 286 App.Div. 828, 142 N.Y.S.2d 24, affirmed 309 N.Y. 990, 132 N.E.2d 898.

Respondent's voluntary use of the pole of an incomplete fence, as a place of work, did not impose upon appellant Jeffrey Garden the responsibility for the collapse of the pole. An owner's duty to furnish a safe place...