Reynolds v. John T. Brady & Co.
| Decision Date | 24 January 1972 |
| Citation | 329 N.Y.S.2d 624,38 A.D.2d 746 |
| Parties | Patrick J. REYNOLDS, Respondent, v. JOHN T. BRADY & CO., Inc., et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Garrity, Connolly, Lewis & Grimes, New York City, for plaintiff-respondent; William R. Grimes, Joseph P. Allen, Burt A. Lewis, New York City, of counsel.
Tropp, Goldfinger & Berson, New York City, for defendant-appellant, John T. Brady & Co., Inc.; William F. McNulty, Anthony J. McNulty, New York City, of counsel.
Craig & Geen, New York City, for defendant-appellant, Daniel J. Rice, Inc.; John Nielsen, New York City, of counsel.
Before HOPKINS, Acting P.J., and GULOTTA, CHRIST, BRENNAN and BENJAMIN, JJ.
MEMORANDUM BY THE COURT.
In a negligence action to recover damages for personal injury, each of the two defendants appeal from so much of a judgment of the Supreme Court, Kings County, entered February 23, 1971, 65 Misc.2d 200, 317 N.Y.S.2d 412, as is in favor of plaintiff against it, upon jury verdicts.
Judgment reversed, on the law and the facts, insofar as it is in favor of plaintiff against defendant John T. Brady & Co., Inc., with costs, and complaint as against that defendant dismissed; and judgment affirmed insofar as it is in favor of plaintiff against defendant Daniel J. Rice, Inc., with costs.
Plaintiff, an employee of Park Row Roofing Company, was injured on February 8, 1965 during the course of construction of a building for the Board of Education of the City of New York when he fell into a ventilating duct which protruded through the floor of a fan room located on the roof of the building. The duct had been installed by defendant Rice, the prime contractor in charge of installation of the heating and ventilation systems. Defendant Brady was the prime contractor for the general construction of the building. Park Row was one of approximately 30 subcontractors engaged by Brady. There were altogether five prime contractors employed on the project.
Liability has been fastened upon Brady on the theory that as to plaintiff it was a general contractor with the duty to provide a safe place to work (Labor Law, §§ 200, 241). In our opinion, under the circumstances herein, Brady did not owe such a duty to plaintiff.
Implicit in the statutory imposition of the duty to provide a safe place to work is the prerequisite that the party charged with such responsibility have the concomitant authority and degree of control over the activity which produces the injury to enable it to take the action necessary to correct or avoid an unsafe condition. Insofar as was established by the evidence adduced at the trial, Brady, under its contract with the Board of Education, merely had the...
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