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Taylor v. Lehr Construction Corp.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 2, 2008

DANNY TAYLOR, PLAINTIFF-APPELLANT,
v.
LEHR CONSTRUCTION CORP., DEFENDANT,
WOOD-PRO II INSTALLERS INC., ET AL., DEFENDANTS-RESPONDENTS. [AND A THIRD-PARTY ACTION]

Judgment, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered on or about October 10, 2006, insofar as appealed from as limited by the briefs, after a jury trial, dismissing the complaint as against defendants Wood Pro II Installers, Inc. (Wood Pro) and William Summerville, Inc. (Summerville), unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Saxe, Catterson, Renwick, Freedman, JJ.

18498/00, 8207/00

Plaintiff was injured when, while working at a construction site, he was struck in the back by an uninstalled door frame that had been left in an open doorway. Plaintiff commenced this action against, inter alia, Wood Pro, the company hired to install the door frames at the site, and Summerville, the manufacturer of the door frame.

The verdict in favor of Wood Pro was based upon a fair interpretation of the evidence (see e.g. McDermott v Coffee Beanery, Ltd., 9 AD3d 195, 206 [2004]). Wood Pro's principal testified that neither he nor Wood Pro workers placed the subject door frame in the open doorway, and that it was Wood Pro's practice to lean the wooden door frames against a solid wall rather than against a doorway. Issues of credibility are for the jury and its resolution of such issues is entitled to deference (see White v New York City Tr. Auth., 40 AD3d 297 [2007]). It was error for the court to charge the jury on comparative fault as there was no evidence of any act on plaintiff's part showing negligence. However, the error was harmless in light of the verdict finding no negligence on the part of Wood Pro (see Silverstein v Marine Midland Trust Co. of N.Y., 35 AD3d 840 [2006]).

The court properly granted Summerville's motion to dismiss the action as against it at the close of plaintiff's case. There was no evidence that Summerville was negligent or violated a statutory or contractual duty to plaintiff (see Vargas v New York City Tr. Auth., 54 AD3d 579 [2008]).

The record further establishes that contrary to plaintiff's contentions, he had no viable claims under Labor Law § 241(6) against either Wood Pro or Summerville. Neither had the authority to supervise or control plaintiff's work, and they were not owners or general contractors at the construction site (see e.g. Andrade v Triborough Bridge & Tunnel Auth., 35 AD3d 256, 257 [2006]).

We have considered plaintiff's remaining arguments, including that the court improperly denied his request to reopen his case to establish liability on Summerville's part, and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20081202

© 1992-2008 VersusLaw Inc.



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