Opinion
March 26, 1962
In an action against a carpentry subcontractor, defendant Santevecchi, to recover damages for personal injuries allegedly sustained by plaintiff when he fell through a floor on the second story of premises being constructed by his employers who are also the owners thereof, the third-party defendant Par Plumbing Co., a plumbing subcontractor, appeals from an order of the Supreme Court, Kings County, dated May 24, 1961, which denied its motion to dismiss the third-party complaint of the defendant carpentry subcontractor, pursuant to subdivision 4 of rule 106 of the Rules of Civil Practice. Order reversed, with $10 costs and disbursements, and motion to dismiss the third-party complaint granted. The main complaint asserts that the defendant carpentry subcontractor improperly installed the flooring in a bathroom on the second story of the premises, thereby causing plaintiff to fall when it collapsed. Such subcontractor's third-party complaint asserts that the third-party defendant had complete control and supervision of its plumbers who, after a portion of the flooring was cut out to install plumbing facilities, improperly replaced the said flooring and failed to warn of or supervise the dangerous condition. In our opinion, in the main complaint the defendant and third-party plaintiff is charged only with active negligence, not with the omission or failure to perform a nondelegable duty ( Putvin v. Buffalo Elec. Co., 5 N.Y.2d 447). The third-party complaint is a "complete disavowal of negligence on the part of the defendant and third-party plaintiff, thus eliminating any possible premise upon which the original plaintiff could obtain a judgment against the third-party plaintiff" ( Kile v. Riefler Bros. Contrs., 282 App. Div. 1000). Beldock, P.J., Ughetta, Christ, Hill and Hopkins, JJ., concur.