Kajowski v. Irvico Realty Corp.

• Citation: 37 A.D.2d 991,327 N.Y.S.2d 715
• Parties: Ethel KAJOWSKI, as executrix under the Last Will and Testament of Wallace Kajowski, Appellant-Respondent, v. IRVICO REALTY CORPORATION et al., Respondents-Appellants.
• Decision Date: 29 November 1971
• Court: New York Supreme Court Appellate Division

Page 715

327 N.Y.S.2d 715

37 A.D.2d 991

Ethel KAJOWSKI, as executrix under the Last Will and Testament of Wallace Kajowski, Appellant-Respondent, v. IRVICO REALTY CORPORATION et al., Respondents-Appellants.

Supreme Court, Appellate Division, Second Department.

Nov. 29, 1971.

Crowe, McCoy & Agoglia, Garden City, for appellant-respondent; Emmet J. Agoglia, Garden City, Morris Zweibel, New York City, of counsel.

J. Robert Morris, New York City, for respondent-appellant Irvico Realty Corporation; Joseph D. Ahearn, New York City, of counsel.

Katz & Gantman, New York City, for Charles LoBosco & Co., Inc.; Arthur N. Seiff, New York City, of counsel.

Before SHAPIRO, Acting P.J., and CHRIST, BRENNAN, BENJAMIN, and GULOTTA, JJ.

MEMORANDUM BY THE COURT.

In this negligence action to recover damages for personal injuries sustained by the present plaintiff's testator, who died after trial, the jury returned a verdict in favor of the original plaintiff against defendants Irvico Realty Corporation (hereinafter called Irvico) and Charles LoBosco & Son, Inc. (hereinafter called LoBosco) in the amount of $110,000, following which the trial court denied said defendants' motions to set aside the verdict, etc., and rendered a written decision that the verdict would be set aside as to damages only, unless the original plaintiff would stipulate, within a stated time, to reduce the verdict to $35,000. Such stipulation was not given and therefore an order was made, on the court's own motion (Supreme Court, Kings County, dated February 27, 1969), which granted a new trial with respect to the issue of damages only. The original plaintiff and defendants Irvico and LoBosco have appealed from said order.

Order reversed, on the law, without costs, and, (1) as between plaintiff and defendant LoBosco, action severed and new trial on the issues of damages only granted, unless, within 30 days after entry of the order to be made hereon, plaintiff shall serve and file in the office of the trial court a stipulation consenting to reduce the verdict to $60,000 as against said defendant and to the entry of a judgment accordingly, in which event the verdict against said defendant, as so reduced, is reinstated; and (2) as between plaintiff and defendant Irvico, the verdict is set aside and judgment is directed to be entered in favor of said defendant dismissing the complaint. The court has considered the questions of fact as to defendant LoBosco and it would not grant a new trial to that defendant upon those questions.

In our opinion the jury's verdict, as against LoBosco, was excessive to the extent indicated herein. Plaintiff's testator was an employee of Irving Subway Grating Co. (hereinafter called Subway). Irvico had purchased certain property for the purpose of erecting a building to be used by Subway. Five underground tanks which were located on the property had to be removed to permit the laying of a foundation for the building.

LoBosco was hired to remove the tanks. The agreement therefor provided that any burning (by ox-acetylene torch) was to be done by Subway's employee. Plaintiff's testator was assigned that task. He was injured by a flame which erupted from one of the tanks as he began the burning operation at the direction of one of LoBosco's employees. The jury could properly have found that LoBosco was guilty of negligence in its failure to properly drain the tanks before the commencement of the burning operation.

Irvico's answer admitted that it had entered into the contract with LoBosco for the removal of the tanks and, at an examination before trial, James Young, Irvico's secretary-treasurer, indicated that LoBosco had been hired by Irvico. At the outset of the trial Irvico's motion to amend its answer to deny that it had entered into the contract with LoBosco was granted.

The proof adduced at trial conclusively establishes that LoBosco was hired by Subway and not by Irvico. In our opinion it was error to submit the case to the jury as against Irvico. That defendant breached no obligation owed by it to plaintiff's testator.

The use of an independent contractor shields Irvico from liability under section 240 of the Labor Law, even were Irvico held to have entered into the contract with LoBosco, as Irvico neither controlled nor directed the work (Kluttz v. Citron, 2 N.Y.2d 379, 161 N.Y.S.2d 26, 141 N.E.2d 547; Haskins v. City of New York, 28 A.D.2d 656, 280 N.Y.S.2d 773). Nor may Irvico be held liable under the plain terms of section 241 of the Labor Law, as it was not 'constructing or demolishing buildings or doing any excavating in connection therewith' (cf. Curtis v. State of New York, 27 A.D.2d 628, 275 N.Y.S.2d 992, affd. 23 N.Y.2d 976, 298 N.Y.S.2d 991, 246 N.E.2d 751; Olson v. 480 Park Ave. Corp., 12 A.D.2d 960, 211 N.Y.S.2d 100). Similarly, Irvico may not be held liable under section 200 of the Labor Law, as the method to be used in the removal of the tanks was left completely to LoBosco, whose negligence in failing to drain the tanks was the proximate cause of the accident (cf. Persichilli v. Triborough Bridge & Tunnel Auth., 16 N.Y.2d 136, 262 N.Y.S.2d 476, 209 N.E.2d 802; Wright v. Belt Associates, 14 N.Y.2d 129, 249 N.Y.S.2d 416, 198 N.E.2d 590; Gasper v. Ford Motor Co., 13 N.Y.2d 104, 242 N.Y.S.2d 205, 192 N.E.2d 163).

SHAPIRO, Acting P.J., and CHRIST, BRENNAN and BENJAMIN, JJ., concur.

GULOTTA, J., dissents in part, with the following memorandum:

I agree with the majority's decision that the award should be reduced to $60,000 but would sustain the verdict against both defendants in question on the issue of liability.

The removal of the gasoline tanks was a necessary part of the building operation, since its purpose was to make way for the foundation of the building which was to be...