Lunde v. Nichols Yacht Sales, Inc.
| Decision Date | 17 October 1988 |
| Citation | 143 A.D.2d 816,533 N.Y.S.2d 130 |
| Parties | Robert LUNDE, Jr., Respondent, v. NICHOLS YACHT SALES, INC., Appellant. |
| Court | New York Supreme Court — Appellate Division |
Morris, Graham, Stephens & McMorrow, Westbury (Thomas J. Graham and Gerald P. McMorrow, of counsel), for appellant.
Corini & Weiss, New Rochelle (Robert O. Corini and Richard Weiss, of counsel), for respondent.
Before LAWRENCE, J.P., and KUNZEMAN, SULLIVAN and BALLETTA, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, the defendant appeals from so much of a judgment of the Supreme Court, Westchester County (Palella, J.), entered April 21, 1987, as, upon a jury verdict, found it 95% at fault for the happening of the accident.
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
The plaintiff was an employee of Nichols Yacht Yards Inc, which was located at 500 Rushmore Avenue in Mamaroneck, when he injured his hand attempting to fix a boat lift that had malfunctioned. The defendant was also located on the same premises. The business of Nichols Yacht Yard generally entailed the repair and storage of boats. The defendant was involved in selling boats and the motors. On numerous occasions, when boats were purchased from the defendant, Nichols Yacht Yard would perform the task of actually launching the boat and bill the defendant for services rendered.
As of April of 1981, the plaintiff worked in the so-called "Dry Sail" area which included the task of taking boats less than 24 feet long and weighing less than 6,000 pounds from their shelves on land and transporting them to the water for use on a daily basis. A device called the "big lift" was used to transport and launch boats weighing over 6,000 pounds. A group of Nichols Yacht Yard employees called the "yard crew" were responsible for using the big lift and the handling of any boat over 24 feet. The plaintiff was not a part of the yard crew and rarely handled boats larger than 24 feet or boats weighing over 6,000 pounds.
On July 18, 1982, a forty foot, six and one half ton speed boat sold by the defendant was to be delivered to purchaser. Certain employees of the defendant told the plaintiff that he and a coworker were to launch the boat as none of the yard crew were present. No one asked the plaintiff if he knew how to use the big lift. While the straps of the "big lift" were lowered in order to give the plaintiff slack to connect them beneath the boat, the arms of the lift would not come down because a cable had come off a pulley. The defendant's employees present at the scene made the plaintiff aware of the problem and told him to get a boat hook (a long pole with a hook on the end) and pull the cable over the pulley. While attempting to correct the problem, the plaintiff's hand was pulled into the pulley. Evidence was adduced at trial that the lift malfunction had been caused by a boat trailer parked too close to the lift which prevented one of the outer arms from dropping.
Immediately prior to the commencement of trial, the court precluded any reference to the Workers' Compensation Law due to the existence of an order striking the defendant's affirmative defense of Workers' Compensation, which was the law of the case.
The defendant's contention that the plaintiff failed to meet its burden of showing that it owed a duty to the plaintiff is without merit. Upon a review of the record, we find the plaintiff proffered sufficient evidence, as a matter of law, to show that the defendant was either an owner (see, Bach v. Emery Air Frgt Corp., 128 A.D.2d 490, 512 N.Y.S.2d 417) or general contractor (see, Copertino v. Ward, 100 A.D.2d 565, 473 N.Y.S.2d 494) of the premises, including the big lift where the injury occurred, and thus incurred the duty to provide a safe work place pursuant to Labor Law § 200. Furthermore,...
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