Leahy v. Botnick
| Decision Date | 30 November 1970 |
| Citation | 315 N.Y.S.2d 700,35 A.D.2d 898 |
| Parties | Gerald LEAHY, Appellant, v. Saul BOTNICK, Respondent and Third-Party Plaintiff, GORICK CONSTRUCTION CO., Inc., Third-Party Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Kramer, Wales, Robinson & Stearns, Binghamton (Donald W. Kramer, Binghamton, of counsel) for appellant.
Chernin & Gold, Binghamton (Israel Margolis, Binghamton, of counsel) for respondent and third-party plaintiff.
Levene, Gouldin & Thompson, Binghamton (Robert Reeder, Binghamton, of counsel) for third-party defendant-respondent.
Before HERLIHY, P.J., and REYNOLDS, STALEY, GREENBLOTT and COOKE, JJ.
Appeal from an order and judgment of the Supreme Court, Broome County, granting respondent Botnick's motion for summary judgment dismissing appellant's complaint pursuant to CPLR 3212.
Respondent contracted with appellant's employer for the demolition of certain buildings on his property. In the course of this demolition appellant, an equipment operator, was injured when a house he was in the process of removing collapsed on him and the instant action ensued. We concur in Special Term's dismissal of the appellant's complaint. Assuming Arguendo a violation of section 241 of the Labor Law in the demolition of the building involved, respondent, as owner, was not responsible for the instant accident which arose solely out of a detail of the immediate work process (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; Cangiano v. Lo Bosco & Son, 23 A.D.2d 860, 239 N.Y.S.2d 197, affd. 18 N.Y.2d 922, 276 N.Y.S.2d 1003, 223 N.E.2d 496). The accident occurred as a direct result of the manner in which the appellant's employer conducted the demolition. There was no 'common hazard' or general unsafe condition for which the respondent was responsible (Bidetto v. New York City Housing Auth., 25 N.Y.2d 848, 303 N.Y.S.2d 695, 250 N.E.2d 735). Nor do we find that there is present here any factual question that respondent retained sufficient control and supervision over the project to place liability upon him under the Labor Law. The mere fact that his engineer visited the work site did not constitute proof of respondent's direction and control (Campoli v. Endicott Constr. Servs., 21 A.D.2d 947, 251 N.Y.S.2d 347) and neither do any of the contractual provisions between respondent and appellant's employer confer control on respondent...
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...the work on the part of the city to support liability (Broderick v. Cauldwell-Wingate Co., 301 N.Y. 182, 93 N.E.2d 629; Leahy v. Botnick, 35 A.D.2d 898, 315 N.Y.S.2d 700). There is some evidence, however, that the city did reserve the authority to stop the work or order corrections if the w......
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