Utica Mut. Ins. Co. v. Paul Mancini & Sons

• Decision Date: 16 December 1958
• Citation: 19 Misc.2d 284,189 N.Y.S.2d 5
• Parties: UTICA MUTUAL INSURANCE COMPANY, Plaintiff, v. PAUL MANCINI & SONS (Mancini Brothers), Defendants.
• Court: New York Supreme Court

Page 5

189 N.Y.S.2d 5

19 Misc.2d 284

UTICA MUTUAL INSURANCE COMPANY, Plaintiff, v. PAUL MANCINI & SONS (Mancini Brothers), Defendants.

Supreme Court, Oneida County.

Dec. 16, 1958.

Order Reversed 192 N.Y.S.2d 87.

Tucker & Bisselle, Utica, William Evans, 3rd, New Hartford, of counsel, for plaintiff.

Hubbard, Felt & Fuller, Utica, Eugence P. Hubbard, Utica, of counsel, for defendants.

HENRY A. HUDSON, Justice.

This is a motion by the defendants, Paul Mancini & Sons (Mancini Brothers) to dismiss the plaintiff's complaint upon the ground that it appears on the face thereof that it does not state facts sufficient to constitute a cause of action.

It appears from the moving papers and the briefs of the parties that the plaintiff originally instituted its action against both Paul Mancini & Sons and the Cooperative G. L. F. Holding Corporation. Thereafter the plaintiff discontinued the action as against the defendant, Cooperative G. L. F. Holding Corporation and served an amended complaint. Although the notice of motion was entitled in the action against the defendants Paul Mancini & Sons alone, the complaint attached to the notice of motion was the complaint in the original action. The plaintiff urges that inasmuch as the motion is addressed to the complaint rather than the amended complaint that it should be dismissed as the original complaint is no longer at issue in the action.

The defendant asserts that the original complaint was annexed to the motion papers through mistake and that the motion was intended to be addressed to the amended complaint and urges that the plaintiff could not have been prejudiced in any way by the mistake inasmuch as the amended complaint was the only pleading presently in effect. Both parties have briefed the law on the main issues between them and I am of the opinion that nothing would be gained by denying the motion on such a technical ground.

The amended complaint sets forth a cause of action arising out of the injury of one John Hitchens, an employee of A. J. Eckert Company, Inc., a plumbing contractor engaged upon the construction of an office building for the Cooperative G. L. F. Holding Corporation on Terrace Hill in the City of Ithaca, New York. The general contractor was Streeter Associates, Inc. and the defendants, Paul Mancini & Sons are alleged to have had a subcontract for the excavation of a trench for the installation of the main water lines in the building being constructed. It is alleged that the defendants, Paul Mancini & Sons, failed to shore the trench pursuant to the provisions of section 241 of the New York State Labor Law and the applicable rules of the Board of Standards and Appeals promulgated thereunder. It was further alleged that the said John Hitchens was injured when the walls of the trench suddenly collapsed and that such accident was caused by the failure of the defendants, Paul Mancini & Sons, to shore up the trench pursuant to Section 241 of the Labor Law and the rules of the Board of Standards and Appeals thereunder. There is no specific allegation of negligence or lack of contributory negligence contained in the complaint. Pursuant to demand therefor, plaintiff served a bill of particulars specifying Rule 23:11 of the Board of Standards and Appeals as being the applicable rule relied upon by it and attached to said bill of particulars a copy of such rule.

The defendants urge that the complaint sets forth a cause of action based upon a violation of the rules promulgated by the Board of Standards and Appeals and that the violation of such rules does not constitute negligence per se but rather can be considered only as some evidence of negligence. They rely upon Teller v. Prospect Heights Hospital, 280 N.Y. 456, 21 N.E.2d 504, and Schumer v. Caplin, 241 N.Y. 346, 150 N.E. 139. These cases involve injury to window washers and the rules involved were of a different character than those involved in the rules promulgated by the Board of Standards and Appeals pursuant to section 241 of the Labor Law. For this reason, in my opinion, neither the Teller or Schumer cases are applicable. Section 241, subdivision 6 of the Labor Law reads as follows:

'The board of standards and appeals may make rules to provide for the protection of workmen in connection with the excavation work for the construction of buildings, the work of constructing or demolishing buildings and structures, and the guarding of dangerous machinery used in connection therewith, and the owners and contractors for such work shall comply therewith.'

The plaintiff urges that it is unnecessary to specifically allege negligence upon the part of the defendant or the freedom from contributory negligence on the part of John Hitchens for the reason that the provisions of section 241 of the Labor Law create a positive, non-delegable duty...