Opinion
July 10, 1967
Judgment of the Supreme Court, Queens County, entered April 21, 1966, in favor of plaintiff against defendants Park P.E.P. Corporation and Dic Concrete Corp., modified on the law and facts by reversing so much of the judgment as is against defendant Park P.E.P. Corporation, with costs, and severing the action as to it, and dismissing the complaint against said defendant, and by reversing so much of the judgment as is against defendant Dic Concrete and granting a new trial as to the latter defendant, with costs to abide the event, unless within 30 days after entry of the order herein plaintiff shall serve and file a written stipulation consenting to reduce the amount of the verdict in his favor from $7,500 to $5,000 and to entry of an amended judgment accordingly, in which event, the judgment, as so reduced and amended, is affirmed, without costs, as to plaintiff and defendant Dic Concrete. In our opinion, the amount of the verdict in plaintiff's favor was excessive. The plaintiff was injured when he was struck on the head by a falling piece of wood as he was about to ascend the ladders with some material for his duties on the fourth floor. The inference is that it was dropped or caused to fall by a carpenter employee of the defendant Dic Concrete who was working on the fourth floor. The ladders were in a shaftway about 6 feet by 10 feet or 6 feet by 12 feet. These ladders were the only set of ladders in the building under construction and had to be used by those going to the upper floors or descending therefrom. No stairways were in use and no elevators were operating. There were also two elevator shaftways and a stairwell but they were open. In our opinion, the open shaftway was reasonably required for proper construction because the work could not have been performed or not performed efficiently if the shaftway had been planked over at the third or fourth floor. Therefore, there was no violation of section 241-a Lab. of the Labor Law and of section 23-39.14 of the Rules of the Board of Standards and Appeals (N.Y. Off. Comp. of Codes, Rules Regulations [7th Supp.], p. 396; 12 NYCRR 23.11) ( Giorlando v. Stuyvesant Town Corp., 4 A.D.2d 701; Vivian v. J.W. Enterprises, 16 A.D.2d 933; Martin v. Siegfried Constr. Co., 16 A.D.2d 383; cf. Gasper v. Ford Motor Co., 13 N.Y.2d 104, 110). Beldock, P.J., Brennan, Hopkins, Munder and Nolan, JJ., concur.