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CARMEN GONZALEZ v. CONCOURSE PLAZA SYNDICATES (03/13/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 1969.NY.40832 <http://www.versuslaw.com>; 298 N.Y.S.2d 167; 31 A.D.2d 401 March 13, 1969 CARMEN GONZALEZ, AS ADMINISTRATRIX OF THE ESTATE OF ROBERTO GONZALEZ, DECEASED, APPELLANT,v.CONCOURSE PLAZA SYNDICATES, INC., ET AL., RESPONDENTS Appeal from a judgment of the Supreme Court in favor of defendants, entered February 19, 1968, in Bronx County upon a dismissal of the complaint by the court at a Trial Term (Francis Murphy, J.) at the close of plaintiff's case. Arthur L. Kagan of counsel (Norman J. Mordkofsky, attorney), for appellant. Irwin M. Strum of counsel (Bernard Helfenstein, attorney), for Concourse Plaza Syndicates, Inc., respondent. William F. McNulty of counsel (Smith & Formidoni, attorneys), for Mildred Weinberg and another, respondents. Capozzoli, J. Stevens, P. J., McGivern, Markewich and Macken, JJ., concur. Author: Capozzoli


Appeal from a judgment of the Supreme Court in favor of defendants, entered February 19, 1968, in Bronx County upon a dismissal of the complaint by the court at a Trial Term (Francis Murphy, J.) at the close of plaintiff's case.

Capozzoli, J. Stevens, P. J., McGivern, Markewich and Macken, JJ., concur.

Author: Capozzoli

 In this action plaintiff seeks to recover for the wrongful death of her intestate, who was killed by a fall while presumably engaged in cleaning a window in the living room of Apartment 910 of the hotel owned by the defendant, Concourse Plaza Syndicates, Inc. The individual defendants are the lessees of said Apartment 910, which was located on the ninth floor. The apartment consisted of a living room, which was also used as a bed room, and kitchen.

The case was tried only on the issue of liability. The trial court dismissed the amended complaint at the close of plaintiff's case, apparently on the theory that there was no showing that the alleged negligence of the defendants was the proximate cause of the accident.

The primary question presented on this appeal is whether or not plaintiff made out a prima facie case. A review of the record discloses that, at about 10:00 a.m. on October 3, 1961, the decedent, a window washer, who was employed by the Flatiron Window Cleaning Company, was admitted into said apartment by the defendant, Mildred Weinberg, for the purpose of cleaning the windows. Mrs. Weinberg noticed that he was wearing work clothes and was carrying a pail of water and a sponge. She led him to the living room and he placed his pail on the radiator cover in front of the open window, which he was to wash. At this point Mrs. Weinberg left the living room and joined her mother in the kitchen. The evidence disclosed that the decedent never left the living room.

Within moments after Mrs. Weinberg joined her mother she heard a slight noise. She arose and went into the living room and did not see the decedent anywhere in the room. The pail was still on the radiator cover, in front of the open window. Mrs. Weinberg then went into her kitchen "and opened the window. We looked out the window and we saw him there", on the parapet, seven floors below. When the police reached the body the decedent was wearing a window washer's safety belt.

The living room window, involved in this case, consisted of a double-hung or counterbalanced window, with an upper and lower portion containing glass panels. The lower portion of the window was 55 3/4 inches wide and 36 inches high. Anchors, which are used when the window is washed from the outside, were attached to the exterior frame. They were intact and operative before and after the accident. Resting on the inner and outer sill of the window was an air conditioner 27 inches wide, 16 1/4 inches high and 18 inches deep. It "was approximately in the center of the window frame. There were two side panels, one on each side, which was 14-1/2 inches wide. In fact, each one was 14-1/2 inches wide". It must be noted that the window was not sealed and it could be opened and closed. When the bottom portion of the window was fully raised it was "13-1/4 inches high from the top of the air conditioner".

This air conditioner was installed at about the end of 1958 or the beginning of 1959 when the Weinbergs moved into the apartment. They purchased the air conditioner and the hotel installed it. The rent paid was $200 per month and, according to the testimony of Mrs. Weinberg in her examination before trial:

"It includes cleaning, all cleaning and repair. I have nothing to do with it.

"Q. Was the Concourse Plaza Syndicates required to clean the windows?

"A. Yes."

It is clear that the defendant, Concourse Plaza, had an agreement with Flatiron Window Cleaning Company to clean all the windows of the hotel and it is, therefore, reasonable to conclude that the decedent was in the Weinberg apartment pursuant to such agreement.

The Legislature, in its wisdom, has enacted section 202 of the Labor Law for the protection of persons engaged at window cleaning, where the windows are cleaned from the outside. Under this section the Board of Standards and Appeals has been given the authority to make rules to effectuate the purposes of the section. Pursuant to such authority, the Board of Standards and Appeals has enacted rule 21.6 of the ...


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