Opinion
May 10, 2001.
Order, Supreme Court, New York County (Harold Tompkins, J.), entered April 12, 2000, which, after a nonjury trial in an action by a laborer under Labor Law § 240(1), apportioned liability 10% against defendant-respondent building owner, 30% against defendant-respondent general contractor, and 60% against defendant-appellant sidewalk bridge builder, unanimously affirmed, without costs.
Eugene Guarner, for plaintiffs.
Carol R. Finocchio, for defendants-respondents.
Roger P. McTiernan, Sr., for defendant-appellant.
Before: Mazzarelli, J.P., Ellerin, Wallach, Rubin, Friedman, JJ.
A fair interpretation of the evidence supports the trial court's finding that appellant's negligence was the main cause of plaintiff's injury. Appellant's principal testified that the only instructions appellant received was to build the bridge "according to Code," and evidence at trial showed that the bridge was noncompliant with the Code in at least one respect significantly related to the accident, namely, the failure to erect a barrier around the opening through which plaintiff fell ( 12 NYCRR 23-1.7 [b]). We reject appellant's argument that the unexplained placement of a piece of plywood over the opening constituted a superceding cause of the accident. Had a barrier been in place, plaintiff would have been put on notice of a dangerous condition, and would not have walked unsuspectingly onto the makeshift plywood cover. In view of the foregoing, there can be no review of the 10% apportionment made against the building owner since it did not file an appeal or cross appeal (see, Hecht v. City of New York, 60 N.Y.2d 57, 62).
Motion seeking leave to strike brief denied.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.