Lee v. Tandy & Allen Const. Co.
| Decision Date | 04 November 1958 |
| Citation | 14 Misc.2d 348,179 N.Y.S.2d 243 |
| Parties | Francis J. LEE, Plaintiff, v. TANDY & ALLEN CONSTRUCTION CO., Defendant. TANDY & ALLEN CONSTRUCTION CO., Third Party Plaintiff, v. F. H. SPARKS CO., Inc., Third Party Defendant. |
| Court | New York Supreme Court |
Coyle & Marks, Rochester, Raymond F. Allen, Rochester, of counsel, for third party defendant, movant. Brown, Zurett, Sullivan, Smith & Gough, Rochester, William V. Gough, Rochester, of counsel, for defendant-third party plaintiff, respondent.
This is a motion by a subcontractor, third party defendant, to dismiss the third party complaint of the general contractor, the defendant-third party plaintiff, who has been sued in negligence by an employee of the subcontractor.
In the original complaint plaintiff alleges that while he was engaged in working for the subcontractor on the third floor of a building, the general contractor, defendant, 'requested and instructed' his services in the guidance of a rope affixed to a box being hoisted to said third floor, and in the process thereof the rope was jerked, which caused the box to force plaintiff's hand into the pulley wheelwell, injuring plaintiff. Plaintiff alleges that defendant, third party plaintiff, was negligent (1) in carelessly directing plaintiff to expose himself to hazards without taking adequate precautions to safeguard him, (2) in failing to provide a safe place for plaintiff to work, (3) in failing to promulgate proper regulations for such work of hoisting such boxs, and (4) in proceeding with inadequate hoisting apparatus, i.e. by wheelwell, boom and rope attached to bumper on defendant's truck and operated by defendant's employee in violation of the laws of the State of New York.
In its third party complaint defendant-third party plaintiff alleges that the third party defendant was engaged on the job as a subcontractor to install steel window sashes, that plaintiff was employed by said subcontractor in such work, and that the subcontractor had exclusive charge of the labor, materials and equipment used in such installation. It is further alleged that the subcontractor, third party defendant, caused the rope to jerk, in that the equipment was 'concocted' and controlled by it and that 'the truck which powered the rope and caused the rope to jerk was operated and exclusively controlled by the third party defendant.'
These allegations amounted to a denial of the allegations of the original complaint that the original defendant 'instructed', controlled and supervised plaintiff at the time, and that its employee operated the truck when the rope was jerked. If such allegations of the third party complaint are proved, the defendant will be successful in defending the plaintiff's action; and hence there is no occasion for the third party action.
Defendant-third party plaintiff contends that the allegations of the original complaint are so general concerning 'safe place to work' that it should be left for the trial court to determine whether an issue exists in this respect. It would seem that each of the parties to this motion would have been well advised to have required a bill of particulars of the plaintiff with respect to his claims concerning this matter (see 4 Carmody-Wait, § 4, p. 617) and then there would be less occasion for speculation as to the meaning of the complaint. But indefinite as any claim of negligence may be in said original complaint, the allegations relate to alleged failures on the part of the original defendant in the performance of its obligations to the plaintiff.
The essential question before the court on this motion is whether or not upon the original complaint and third party complaint there is any basis in law whereby the defendant may be held liable to the plaintiff by reason of passive negligence on its part and wherein the third party defendant was the active-tort-feasor in violation of an obligation it owed to the original defendant. Coffey v. Flower City Carting and Excavating Company, 2...
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Sarnoff v. Charles Schad, Inc.
...and Schad (McFall v. Compagnie Maritime Belge (Lloyd Royal) S.A., 304 N.Y. 314, 330, 107 N.E.2d 463, 472; Lee v. Tandy & Allen Constr. Co., 14 Misc.2d 348, 179 N.Y.S.2d 243; Seiden v. Savings & Loan Assn. of Sunnyside, 10 Misc.2d 720, 172 N.Y.S.2d The only proof in this case is that Associa......