Sullivan v. Held

• Decision Date: 27 April 1981
• Parties: John L. SULLIVAN et al., Respondents, v. Ruth HELD, Defendant Third-Party Plaintiff-Appellant; Nier Sheet Metal Roofing, Third-Party Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 359

438 N.Y.S.2d 359

81 A.D.2d 663

John L. SULLIVAN et al., Respondents, v. Ruth HELD, Defendant Third-Party Plaintiff-Appellant;

Nier Sheet Metal Roofing, Third-Party Defendant-Appellant.

Supreme Court, Appellate Division,

Second Department.

April 27, 1981.

Raymond J. MacDonnell, New York City (Adolph B. Salib, New York City, on the brief), for appellant Held.

Peter M. Pryor, New York City (William F. Larkin, New York City, of counsel), for appellant Nier Sheet Metal Roofing.

Queller, Fisher & Block, New York City (Seligson, Rothman and Rothman, New York City, of counsel), for respondents.

Before TITONE, J. P., and LAZER, MANGANO and COHALAN, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for personal injuries incurred while repairing the brick facing of a building, the defendant and third-party defendant separately appeal from a judgment of the Supreme Court, Kings County, entered June 10, 1980, which, upon a jury verdict, inter alia, is in favor of plaintiffs in the principal sum of $1,100,000 on the main action and $100,000 on the derivative action.

Judgment affirmed, with one bill of costs payable jointly by appellants.

John Sullivan, a 34-year-old laborer who had risen to the position of foreman with the company for which he had worked for 18 years (the third-party defendant), was injured when he fell to the ground in a scaffold on which he had been working, seated in a boatswain's chair, repairing the facing of a brick building ("pointing"). Plaintiffs relied on section 240 of the Labor Law, an absolute liability statute, and argued successfully before the trial court (in the bifurcated trial) that contributory negligence should be struck from the pleadings as an affirmative defense and that no testimony should be permitted on the issue of a safety belt. Plaintiffs' proof went to show that the cause of the accident was the breaking or tearing of the rope that was used to rig the scaffold because the rope was old, worn and unfit for use as a scaffold rope. The defense of the contractor (the third-party defendant) was that the rope in evidence was not the one it had furnished for the rigging.

The jury's verdict was in favor of plaintiffs and damages were awarded accordingly. The Trial Judge gave judgment to the third-party plaintiff, following the waiver of a jury trial by the parties in the third-party action.

The third-party defendant, Nier Sheet Metal Roofing (Nier), contends on appeal that the exclusion of evidence with respect to the safety belt and other trial court rulings deprived it of a fair trial, that the comparative negligence statute (CPLR 1411) is applicable to this action based on section 240 of the Labor Law, and that the verdict is excessive. We reject all three contentions.

Section 240 of the Labor Law places absolute responsibility for safety practices on the owner and general contractor, "where it belongs" (Rocha v. State of New York, 45 A.D.2d 633, 636, 360 N.Y.S.2d 484, mot. for lv. to app. den. 36 N.Y.2d 642, 366 N.Y.S.2d 1026, 324 N.E.2d 561). It is for that reason that a worker's contributory negligence may not be asserted as a defense in an action based upon that section (Koenig v. Patrick Constr. Corp., 298 N.Y. 313, 83 N.E.2d 133).

In the present case, the issue of the safety belt was, therefore, irrelevant. The issue was whether the scaffolding equipment and...