Zinsenheim v. Congregation Beth David, Inc.
| Decision Date | 24 May 1960 |
| Citation | 200 N.Y.S.2d 753,10 A.D.2d 501 |
| Parties | Otto ZINSENHEIM, Plaintiff-Respondent, v. CONGREGATION BETH DAVID, INC., Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Nathan Dechter, New York City, (William Steingesser, New York City, with him on the brief), for plaintiff-respondent.
Thomas P. O'Malley, New York City, of counsel (George J. Conway, New York City) for defendant-appellant.
Before BOTEIN, P. J., and RABIN, M. M. FRANK, McNALLY and STEVENS, JJ.
Plaintiff, a glazier, ascended to the wide ledge of a mantle about twelve feet above the floor in the synagogue maintained by defendant to inspect a leaky stained-glass window. While still on the ledge he changed some electric light bulbs at the direction of one of defendant's officers. In descending from the mantle he came in contact with a heavy stone ornament resting on the ledge, which toppled over, struck and precipitated plaintiff to the floor.
The recovery below was based on the failure of defendant to supply a safe working space, as required by Section 200 of the Labor Law, which is a codification of the common-law rule. Findings that the working space was known to be unsafe or that such an unsafe condition was discoverable in the exercise of reasonable care are essential elements of any recovery under the common-law rule or the statute (Employers Mut. Ins. v. Di Cesare & Monaco, 9 A.D.2d 379, 383, 194 N.Y.S.2d 103, 107, 108). To charge, as the trial court did, that 'The negligence, if any, rests in the knowledge of the defendant or its agents that the heavy ornament was so placed as to be dangerous and liable to topple over when anyone on the ledge or its vicinity would come in contact with it' did not pose to the jury, with sufficient clarity, the requirement of a finding either of knowledge of the unsafe condition or that such condition should have been ascertained with reasonable care. 'The premises are made safe by the discovery of dangers ascertainable through reasonable diligence and remedying them or warning against them' (Employers Mut. Ins. v. Di Cesare & Monaco, supra). The omission in the charge was emphasized by the refusal to charge that there was no proof of knowledge that the ornament might topple if touched, and the failure to charge concerning the element of notice.
The judgment should be reversed, on the law and on the facts, and a new trial granted, with costs to abide the event.
All concur.
Judgment unanimously...
To continue reading
Request your trial
-
Gasperino v. Larsen Ford, Inc.
...of employees contributed to the injury or death of such employee." 5 17B McKinney's EPTL § 5-4.2. 6 See Zinsenheim v. Congregation Beth David Inc., 10 A.D.2d 501, 200 N.Y.S.2d 753 (1960); Bein v. City of New York, 271 F.Supp. 542 7 That the defense of contributory negligence is available in......
-
Kelly v. Diesel Const.
...200 and 241 of the Labor Law. (Schnur v. Shanray Construction Corp., et al., 31 A.D.2d 513, 294 N.Y.S.2d 652; Zinsenheim v. Cong. Beth David, 10 A.D.2d 501, 200 N.Y.S.2d 753; Zaulich v. Thompkins Square Holding Co., Inc., 10 A.D.2d 492, 200 N.Y.S.2d 550; Dittiger v. Isal Realty Corp., 264 A......
-
Wetteland v. Reyna Const. Co.
...and 241 of the Labor Law need be considered. Section 200 'is a codification of the common-law rule.' Zinsenheim v. Congregation Beth David, Inc., 10 A.D.2d 501, 502, 200 N.Y.S.2d 753, 754. As noted above, the common law duty to furnish a safe place to work, did not put upon this defendant a......
-
De Luca v. Fehlhaber Corp.
...App.Div. 279, 281-282, 35 N.Y.S.2d 311, 314-315, reversed on other grounds 290 N.Y. 492, 49 N.E.2d 380; see also Zinsenheim v. Cong. Beth David, 10 A.D.2d 501, 200 N.Y.S.2d 753; Zaulich v. Thompkins Sq. Holding Co., 10 A.D.2d 492, at page 496, 200 N.Y.S.2d 550, at pages 554, 555.) There has......