Moore v. Suburban Fuel Oil Service, Inc.

• Decision Date: 30 November 1964
• Court: New York Supreme Court — Appellate Division
• Parties: Bennie MOORE, Respondent, v. SUBURBAN FUEL OIL SERVICE, INC., Appellant, and High Point Oil Terminals, Inc., Defendant.

Page 230

255 N.Y.S.2d 230

22 A.D.2d 827

Bennie MOORE, Respondent, v. SUBURBAN FUEL OIL SERVICE, INC., Appellant, and High Point Oil Terminals, Inc., Defendant.

Supreme Court, Appellate Division, Second Department.

Nov. 30, 1964.

Albert P. Thill, Brooklyn, for appellant.

Seymour Paul Schulman, New York City, for respondent; Robert M. Ginsberg, New York City, of counsel.

Before BELDOCK, P. J., and KIEINFELD, CHRIST, RABIN and HILL, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injury, the defendant Suburban Fuel Oil Service, Inc., appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Queens County, entered May 12, 1964 after trial upon a jury's verdict, as directed recovery by plaintiff against said defendant.

Judgment, insofar as appealed from, reversed on the law and the facts, without costs; and complaint dismissed, withoug costs.

The defendant Suburban Fuel Oil Service, Inc., was the lessee in possession and control of certain premises at which it maintained and operated fuel storage tanks. Plaintiff was an employee of an independent contractor which had been retained by Suburban to clean the fuel tanks. Plaintiff's duties consisted primarily of driving a trailer-truck which was used in the cleaning operation and in assisting in the actual cleaning of the tanks.

On the day of the accident, the plaintiff drove his truck to Suburban's premises and parked it on the public sidewalk adjoining the premises, near a stairway which extended from the sidewalk to an elevated area upon which the fuel tanks were located. Several hours later, after the cleaning operation (which consisted primarily of extending and attaching a length of hose from the truck to the tanks for the purpose of cleaning the tanks) had been completed, the plaintiff, while engaged in loading the hose onto the truck, tripped over a metal 'skid' which was lying on the public sidewalk near the truck. The skid was described as being eighteen feet long and one and one-half to two feet wide.

It is not disputed that the accident occurred on the sidewalk adjoining Suburban's premises. The complaint so alleged and plaintiff's counsel in his opening address to the jury conceded that 'the area that we are concerned with in this case is officially mapped as a City sidewalk. In other words, it is actually part of the property that is owned by New York City.' Moreover, the learned trial court charged that this was a sidewalk owned by the City of New York and controlled by it. Furthermore, since the record was devoid of any proof that the condition complained of had been created by Suburban or that it was in any way responsible for the presence of the 'skid,' although there was testimony that the 'skid' had been in the same position for several months, the court charged, without exception, that Suburban, as the abutting owner (lessee in possession), was under no duty or obligation to remove the 'skid'. (cf. Neiberg v. Remsenburg Realty Corp., 1 A.D.2d 1043, 152 N.Y.S.2d 555).

The cases cited by the plaintiff (Condon v. Arata, 302 N.Y. 579, 96 N.E.2d 890; Nickelsburg v. City of New York, 263 App.Div. 625, 34 N.Y.S.2d 1) are distinguishable and inapposite. In any event, the charge of the court, to which plaintiff took no exception, became the 'law of the case' and binding upon the parties (Brown v. DuFrey, 1 N.Y.2d 190, 195, 151 N.Y.S.2d 649, 653, 134 N.E.2d 469, 471).

The sole basis for the liability imposed upon Suburban, as charged by the trial court, to which portion of the charge Suburban excepted, lies in Suburban's alleged failure to furnish to plaintiff a safe place to work. In our opinion, on the record in this case there is no basis for predicating liability upon a breach of the duty to furnish a safe place to work. To the workmen coming onto his premises to perform construction or repair work, an owner owes the duty by the exercise of reasonable care to render safe the places of work provided by him, together with the ways...