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Komar v. Dun & Bradstreet Co., Inc.

Supreme Court of New York, Appellate Division

July 19, 1954

ANTHONY KOMAR, Respondent,
v.
DUN & BRADSTREET CO., INC., et al., Appellants, et al., Defendant. DUN & BRADSTREET CO., INC., et al., Third-Party Plaintiffs-Appellants,
v.
A. GREENE CO., INC., Third-Party Defendant-Respondent.

Republished decision, July 22, 1954.

Page 539

APPEAL from a judgment of the Supreme Court in favor of plaintiff and against the appellants, entered December 7, 1953, in New York County upon a verdict rendered at a Trial Term (SAYPOL, J.). The appellants also appeal from that part of the judgment in which said trial court granted a motion of the third-party defendant for a dismissal of appellants' third-party complaint.

COUNSEL

Page 540

Archie B. Morrison of counsel (Daniel R. Harvey and Robert A. Dwyer with him on the brief; William S. O'Connor, attorney), for appellants.

Eugene J. Morris of counsel (Albert J. Rosenthal with him on the brief; Gustave G. Rosenberg and Leon Himmelfarbe, attorneys), for respondent.

Harry Schechter of counsel (Bernard Katzen and William H. Stieglitz with him on the brief; Bernard Katzen, attorney), for third-party defendant-respondent.

CALLAHAN, J.

On February 3, 1950, the George A. Fuller Company, as general contractor, entered into an agreement with A. Greene Co., Inc., subcontractor, for the demolition of a number of buildings in New York City. The demolition was in pre-paration of a site for the construction of a large office building by Fuller, as general contractor, for Dun & Bradstreet Co., Inc., the owner.

In the course of the work, and on May 23, 1950, plaintiff, Anthony Komar, who was employed by Greene as a 'bar-man', was prying loose part of the front wall of one of the buildings. He was sitting astride the wall as he worked, and fell off into the cellar with the stone he had pried loose. The wall was about twelve feet above the ground on the streetside and about twenty-five feet above the cellar floor on the inside of the building.

The trial court submitted the issue of liability to the jury against the owner and general contractor solely on the theory of negligence arising out of breach of a claimed statutory duty. It dismissed defendants-appellants' claim over for indemnity against the subcontractor, A. Greene Co., Inc.

The claimed breach of statutory duty was the failure to furnish a scaffold, and the question submitted to the jury was whether such failure was a proximate cause of the accident suffered by plaintiff. The jury returned a verdict for $100,000 damages against both defendants-appellants.

The statute alleged to have been breached was a rule of the Board of Standards and Appeals of the State Labor Department, having the force of law, and known as rule 23-7.5.11 of the Industrial Code, which reads: 'Demolition requiring scaffolds. Whenever workmen are engaged in the removal of any part of a building or structure, which part is more than 12 feet above a floor, platform or the ground, there shall be provided for such workmen suitable scaffolds constructed in accordance with rule

Page 541

23-8.2'. (N.Y. Official Compilation of Code, Rules & Regulations, Vol. 3, p. 664.)

Concededly, no scaffold had been supplied on either side of the wall at the time of the accident, and there was evidence that the wall was over twelve feet high. Thus, there was proof of non-compliance with the rule aforesaid. The principal issue is whether these defendants-appellants (the owner and general contractor) were required by law to furnish such scaffold. This issue is one of law depending on the construction and application of the relevant statutes and rules.

Section 240 of the Labor Law, insofar as pertinent, reads as follows: '1. A person employing or directing another to perform labor of any kind in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed or directed.'

It will be noted that the section refers specifically to demolition work, among other activities, and provides that the person employing or directing another to perform such work shall erect or cause to be furnished scaffolds, among other devices, necessary for the protection of these workers. The section lists not only scaffolds, but such other devices as hoists, stays, ladders, blocks, pulleys, braces, irons and ropes. This section has been construed by many decisions of the higher courts of this State to place the duty of furnishing these devices on the immediate employers of the labor, and this would mean the subcontractor when he is in charge of performance. It would not mean an owner or general contractor, unless such person was actually doing the work himself without the intervention of a subcontractor. ( Iacono v. Frank & Frank Contr. Co., 259 N.Y. 377; Sweeney v. Spring Products Corp., 257 A.D. 104, affd. 282 N.Y. 685; Glass v. Gens-Jarboe, Inc., 280 A.D. 378, affd. 306 N.Y. 786; Ellithorp v. Adams Rice Constr. Corp., 281 A.D. 917.)

The trial court recognized that insofar as section 240 is concerned, it placed no duty to furnish a scaffold on the owner or general contractor, but held that rule 23-7.5.11 did obligate these defendants-appellants to furnish such scaffolds. It is the correctness of this latter ruling that presents the principal question upon this appeal.

Page 542

The theory of plaintiff, accepted by the trial court, was that rule 23-7.5.11 was applicable to the owner and general contractor by force of the provisions of subdivision 6 of section 241 of the Labor Law.

Section 241 is entitled 'Protection of employees on building construction or demolition work including excavation work in connection therewith'. The opening sentence reads: 'All contractors and owners, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements'. Then follow five paragraphs or subdivisions referring to the filling of floor space, the laying of underflooring, the planking of floor space, and the guarding of elevator shaftways. All of these paragraphs quite apparently refer to construction activities. Finally, subdivision 6 (repeated as subdivision 7), 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 ...


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