Sheppard v. Blitman/Atlas Building Corp.

• Decision Date: 08 November 2001
• Citation: 288 A.D.2d 33,734 N.Y.S.2d 1
• Parties: JAMES SHEPPARD, Respondent,<BR>v.<BR>BLITMAN/ATLAS BUILDING CORP. et al., Respondents-Appellants.<BR>BLITMAN/ATLAS BUILDING CORP. et al., Third-Party Plaintiffs-Respondents-Appellants,<BR>v.<BR>NORTHBERRY CORP., Third-Party Defendant-Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

288 A.D.2d 33

734 N.Y.S.2d 1

JAMES SHEPPARD, Respondent,

v.BLITMAN/ATLAS BUILDING CORP. et al., Respondents-Appellants.

BLITMAN/ATLAS BUILDING CORP. et al., Third-Party Plaintiffs-Respondents-Appellants,

v.NORTHBERRY CORP., Third-Party Defendant-Appellant-Respondent.

Decided November 8, 2001.

Concur — Nardelli, J. P., Tom, Mazzarelli, Wallach and Rubin, JJ.

There is no basis to disturb the jury's apportionment of liability which is supported by the record (see, Wiseberg v Douglas Elliman-Gibbons & Ives, 224 AD2d 361, 362). The accident occurred when plaintiff stepped back to avoid being hit by falling lumber and slipped on ice covered by ash. Although plaintiff had checked his surroundings prior to commencing the job and determined it was safe to proceed, the lighting in the work area was dim. Accordingly, there was an adequate basis for the jury's conclusion that plaintiff was not at fault for failing to notice the ash-covered patch of ice (cf., Doyne v Barry, Bette & Led Duke, 246 AD2d 756). Also adequately supported was the jury's 30% liability apportionment to Turner since the record showed that Turner retained more than general supervisory power over the work (see, Freitas v New York City Tr. Auth., 249 AD2d 184; cf., Buccini v 1568 Broadway Assocs., 250 AD2d 466). The evidence showed that Turner was responsible for advising Northberry if the work was unsatisfactory or if there was an unsafe condition at the site and that Turner had the authority to stop work being performed unsafely. Turner was aware of the conditions at the work site and set up work site safety practices regarding accumulations of snow and ice. Northberry's vice president testified that Northberry had no such practice other than as directed by Turner. Thus, there was a rational basis for the jury to find that, notwithstanding Northberry's contractual obligation to clear its work area, Turner retained sufficient supervisory authority over the work to support the imposition of liability.

We find the awards for damages excessive to the extent indicated.

The court properly granted preclusive effect as against Northberry to a Workers' Compensation Board determination that plaintiff's aggravated back injury was causally related to the accident (see, Ryan v New York Tel. Co., 62 NY2d 494; Lee v Jones, 230 AD2d 435, lv denied 91 NY2d 802).

The court properly deemed Turner's pleading asserting cross claims and counterclaims to be a third-party claim against Northberry. Any defect in the commencement of the action was waived by Northberry, which participated therein on the merits and never rejected the defective pleading (see, Matter of Fry v Village of Tarrytown, 89 NY2d 714, 720-721; Urena v NYNEX, Inc., 223 AD2d 442; Nardi v Hirsh, 250 AD2d 361, 364). Contrary to Northberry's claim, defective filing is waivable (Fry v Village of Tarrytown, supra).

Furthermore, the court properly permitted Turner to amend its third-party complaint to assert a claim for breach of contract to procure insurance. Leave to amend pleadings should be freely granted absent prejudice or surprise (Prote Contr. Co. v Board of Educ. of City of N. Y., 249 AD2d 178). In the absence of prejudice, mere delay is...