Izrailev v. Ficarra Furniture of Long Island, Inc.

• Decision Date: 10 November 1987
• Citation: 517 N.E.2d 1318,70 N.Y.2d 813,523 N.Y.S.2d 432
• Parties: , 517 N.E.2d 1318 Etela IZRAILEV, as Administratrix of the Estate of Sema Z. Izrailev, Deceased, Appellant, v. FICARRA FURNITURE OF LONG ISLAND, INC., et al., Respondents. FICARRA FURNITURE OF LONG ISLAND, INC., Third-Party Plaintiff-Respondent, v. K & R ELECTRIC CO., INC., Third-Party Defendant-Respondent. Etela IZRAILEV, as Administratrix of the Estate of Sema Z. Izrailev, Deceased, Appellant, v. 1000 SUNRISE HIGHWAY, INC., Defendant-Respondent and Third-Party Plaintiff- Respondent. K & R Electric Co., Inc., Third-Party Defendant-Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 432

523 N.Y.S.2d 432

70 N.Y.2d 813, 517 N.E.2d 1318

Etela IZRAILEV, as Administratrix of the Estate of Sema Z.

Izrailev, Deceased, Appellant, v. FICARRA FURNITURE OF LONG ISLAND, INC., et al., Respondents.

FICARRA FURNITURE OF LONG ISLAND, INC., Third-Party Plaintiff-Respondent, v. K & R ELECTRIC CO., INC., Third-Party Defendant-Respondent.

Etela IZRAILEV, as Administratrix of the Estate of Sema Z.

Izrailev, Deceased, Appellant, v. 1000 SUNRISE HIGHWAY, INC., Defendant-Respondent and

Third-Party Plaintiff- Respondent.

K & R Electric Co., Inc., Third-Party Defendant-Respondent.

Court of Appeals of New York.

Nov. 10, 1987.

[70 N.Y.2d 814] David Jaroslawicz and Mark Landesman, New York City, for appellant.

John P. Gibbons, New York City, and Lawrence B. Lame, Rego Park, for Ficarra Furniture of Long Island, Inc., respondent.

William H. Morris and Gerald P. McMorrow, Westbury, for 1000 Sunrise Highway, Inc., respondent.

Steven I. Brizel and Michael I. Josephs, New York City, for K & R Elec. Co., Inc., respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 121 A.D.2d 685, 504 N.Y.S.2d 450, should be reversed, with costs, and a new trial granted.

Plaintiff's decedent, an electrician employed by third-party defendant K & R Electric, sustained fatal injuries when he fell from a ladder supplied by his employer for use in connection with work on an electrical sign owned by defendant Ficarra Furniture and attached to a building owned by defendant 1000 Sunrise Highway. Plaintiff brought this wrongful death action against defendants claiming, among other things, that decedent's injuries were caused by a violation of Labor Law § 240. The trial court, despite plaintiff's objections, limited its charge on the potential Labor Law violations to defendants' duty pertaining to the ladder. The jury found defendants not liable for decedent's injuries. The trial court's charge was in error and a new trial is required.

The testimony at trial showed that decedent had not been supplied with safety belts, insulated gloves, hard hats, or scaffolds. Plaintiff's expert witness, a consulting safety engineer, stated that a Baker-type scaffold and insulated gloves should have been provided to decedent and that in the event a ladder was used, decedent should have been provided with a safety belt or a safety line. Given this unrebutted proof, it was error for the trial court to charge the jury that under Labor Law § 240 the only question was...