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DeFreece v. Penny Bag, Inc.

Appellate Division of the Supreme Court of New York, Second Department
Feb 22, 1988
137 A.D.2d 744 (N.Y. App. Div. 1988)

Opinion

February 22, 1988

Appeal from the Supreme Court, Orange County (King, J.).


Ordered that the appeal by the defendant Resnick from so much of the order dated June 26, 1986, as denied his motion for summary judgment is dismissed, without costs or disbursements, as that part of the order was superseded by so much of the order entered September 15, 1986, as, upon reargument, adhered to the original determination denying his motion; and it is further,

Ordered that the order entered September 15, 1986, is affirmed insofar as reviewed, without costs or disbursements; and it is further,

Ordered that the plaintiffs' cross appeal is dismissed as abandoned, without costs or disbursements; and it is further,

Ordered that Newburgh's cross appeal is dismissed, without costs or disbursements, on the ground that it is not aggrieved by the order cross-appealed from (see, CPLR 5511).

The plaintiff Emanuel DeFreece was injured while he was on the roof of a factory building owned by the defendant Newburgh, and under a contract of sale to the defendant Resnick. The contract vendee, Resnick, who already had possession and control of the building, entered into a contract with one Richard Rafos to repair various holes in the factory's roof. The plaintiff, who was seeking employment and heard of the construction work to be done, visited the premises where Rafos authorized him to climb to the roof. After Rafos and the plaintiff agreed orally to employment to start in a few weeks, and, as the plaintiff was leaving, he fell into one of the holes in the roof.

The court correctly ruled that the defendant Resnick was an "owner" within the meaning of Labor Law § 241 (6). That section requires "owners and contractors and their agents" to comply with various safety requirements for "persons employed * * * or lawfully frequenting" areas in which construction, excavation or demolition work is being performed. 12 NYCRR 23-1.4 (b) (39) defines a person "lawfully frequenting" such places as "[a]ny person exercising a lawful right of presence or passage in any area, including persons on a public sidewalk, street or highway". As the plaintiff was lawfully on the roof with the permission of the contractor, he is covered by this provision (see, Brennan v M.L.P. Bldrs. Corp., 262 N.Y. 464).

The defendant Resnick was an "owner" within the meaning of this provision, even though legal title had not yet passed to him. As a contract vendee, he had a property interest, already had access to the premises, and was the party who had contracted to have the roof repair work performed (see, Copertino v Ward, 100 A.D.2d 565, 566; Celestine v City of New York, 86 A.D.2d 592, affd 59 N.Y.2d 938; Sweeting v Board of Coop. Educ. Servs., 83 A.D.2d 103, 113, lv denied 56 N.Y.2d 503; Allen v Cloutier Constr. Corp., 44 N.Y.2d 290, 300-301, rearg denied 45 N.Y.2d 776; see also, Real Property Law § 239-a). Bracken, J.P., Kunzeman, Eiber and Harwood, JJ., concur.


Summaries of

DeFreece v. Penny Bag, Inc.

Appellate Division of the Supreme Court of New York, Second Department
Feb 22, 1988
137 A.D.2d 744 (N.Y. App. Div. 1988)
Case details for

DeFreece v. Penny Bag, Inc.

Case Details

Full title:EMANUEL DeFREECE et al., Respondents-Appellants, v. PENNY BAG, INC.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Feb 22, 1988

Citations

137 A.D.2d 744 (N.Y. App. Div. 1988)

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