Zalduondo v. City of New York
Decision Date | 27 June 1988 |
Citation | 141 A.D.2d 816,529 N.Y.S.2d 881 |
Parties | , 47 Ed. Law Rep. 664 James ZALDUONDO, et al., Appellants, v. The CITY OF NEW YORK, et al., Respondent, et al., Defendants. |
Court | New York Supreme Court — Appellate Division |
O'Dwyer & Bernstein, New York City (Gary Silverman, of counsel), for appellants.
Peter L. Zimroth, Corp. Counsel, New York City (Stephen J. McGrath and Lin Saberski, of counsel), for respondent.
Before MOLLEN, P.J., and MANGANO, RUBIN and SULLIVAN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Kings County (Rader, J.), dated February 11, 1987, as is in favor of the defendant City of New York and against them, upon a jury verdict.
ORDERED that the judgment is reversed insofar as appealed from, on the law and as an exercise of discretion, and a new trial is granted to the plaintiffs against the defendant City of New York, with costs to abide the event.
The defendant City of New York owned a building which was under construction in 1978 for use as a Brooklyn high school. The plaintiff James Zalduondo, an architect employed by the New York City Board of Education, was stationed at the site on June 13, 1978, when he fell from a staircase in the structure, incurring injuries.
In submitting the instant case to the jury, the court gave the jury a special verdict sheet which asked them to answer five questions. The plaintiffs' counsel requested that the first question be worded as follows: "was the defendant in violation of the mandates of the Labor Law". The trial court did not agree to that request and instead worded the first question on the verdict sheet as follows: "Was the defendant, City of New York, negligent"? The jury answered the first question in the negative and accordingly, it did not reach the other questions.
A review of the record indicates that the trial court, in its charge, improperly merged the theories of common-law negligence (codified in Labor Law § 200[1] ) and liability under Labor Law § 241(6). Specifically, the trial court charged the jury as follows:
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