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FRANK A. CALDERONE v. R & C HOMES (06/03/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


June 3, 1968

FRANK A. CALDERONE, RESPONDENT,
v.
R & C HOMES, INC., DEFENDANT, AND ABE MELTZER, APPELLANT

In an action to recover damages for property injury, the appeal is from a judgment of the Supreme Court, Queens County, entered March 20, 1967 against appellant upon a jury verdict.

Brennan, Acting P. J., Rabin, Benjamin, Munder and Martuscello, JJ., concur.

Respondent's marine railway was damaged when a barge used by defendant R & C Homes, Inc., in connection with the construction of a bulkhead on appellant's property broke loose during a storm. Respondent failed to disprove that the relationship between R & C Homes, Inc., and appellant was one of employer-independent contractor, or to prove that the work to be performed was inherently dangerous (Schwartz v. Merola Bros. Constr. Corp., 290 N. Y. 145; Lockowitz v. Melnyk, 1 A.D.2d 138). We are of the further opinion that the accident was not reasonably foreseeable by the appellant.

Disposition

Judgment reversed, on the law and on the facts, and complaint dismissed, with costs.

19680603

© 1998 VersusLaw Inc.



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