Statella v. Robert Chuckrow Const. Co.

• Decision Date: 20 June 1967
• Citation: 281 N.Y.S.2d 215,28 A.D.2d 669
• Parties: Emma STATELLA, as the Administratrix of the Estate of Fiore Monte Statella, Deceased, Plaintiff, Plaintiff-Respondent, v. ROBERT CHUCKROW CONSTRUCTION CO., Inc., Defendant, Defendant-Respondent-Appellant, and the Wheeling Corrugated Co., Defendant-Appellant-Respondent, and Ervin E. Helms, Inc., Defendant-Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 215

281 N.Y.S.2d 215

28 A.D.2d 669

Emma STATELLA, as the Administratrix of the Estate of Fiore Monte Statella, Deceased, Plaintiff, Plaintiff-Respondent, v. ROBERT CHUCKROW CONSTRUCTION CO., Inc., Defendant Defendant-Respondent-Appellant, and the Wheeling Corrugated Co., Defendant-Appellant-Respondent, and Ervin E. Helms Inc., Defendant-Appellant-Respondent.

Supreme Court, Appellate Division, First Department.

June 20, 1967.

J. D. Fuchsberg, New York City, for plaintiff, plaintiff-respondent.

W. F. McNulty, New York City, for defendant, defendant-respondent-appellant.

J. S. Christensen, New York City, for defendant-appellant-respondent Wheeling Corrugated Co.

R. E. Quirk, New York City, for defendant-appellant-respondent Ervin E. Helms, Inc.

Before EAGER, J.P., and STEUER, TILZER, McNALLY and McGIVERN, JJ.

PER CURIAM.

Judgment in favor of plaintiff as against the defendant, The Wheeling Corrugated Co., unanimously reversed, on the law, the verdict rendered against it vacated, and complaint as against said defendant dismissed; judgment in favor of the plaintiff as against the defendants Robert Chuckrow Construction Co., Inc. and Ervin E. Helms, Inc., in the sum of $275,000 for wrongful death, with interest, and $15,000 for conscious pain and suffering, with interest, unanimously reversed, on the law and on the facts and in the exercise of discretion, as to said defendants and verdicts vacated and a new trial granted unless the plaintiff, within twenty days after entry of order hereon, stipulates to accept the sum of $200,000 for wrongful death, with interest from April 29, 1965, and the sum of $5,000 for conscious pain and suffering, with interest from April 29, 1965, in lieu of the awards by verdict, in which event the judgment is modified to that extent, and, as so modified, affirmed; in the event the plaintiff so stipulates, the respective judgments in favor of defendants upon their respective cross-complaints against co-defendants are modified accordingly, on the law and the facts, as to amounts but otherwise affirmed; judgment in favor of defendant The Wheeling Corrugated Co. on cross-complaint against the defendant Ervin E. Helms, Inc. shall specifically provide that there shall be a recovery over by the former against the latter of the sums recovered against Wheeling Corrugated Co. under the cross complaint of the defendant Robert Chuckrow Construction Co., Inc., in the event the plaintiff does not stipulate as aforesaid, then the respective judgments in favor of defendants upon respective cross-complaints against co-defendants are reversed and vacated on the law and the facts, and a new trial granted thereon, and the aforesaid directions and determinations are without costs or disbursements to any party on this appeal as against any other party.

The defendant, The Wheeling Corrugated Co. (Wheeling), as a subcontractor to the general contractor, entered into an agreement with Robert Chuckrow Construction Co., Inc. (Chuckrow) to install the metal floor decks throughout the building. Thereafter, Wheeling entered into a sub-subcontract with defendant Ervin E. Helms, Inc. (Helms) to perform all of the work which was to be performed under its subcontract with Chuckrow. Wheeling did not enter upon the construction site and did not retain or exercise any control over the manner and means of doing the work which was the subject of its subcontract with Chuckrow....