Carinha v. Action Crane Corp.

Murphy, P. J. (concurring in part and dissenting in part).

When Garrido, the foreman, directed Harrington to place the crane in a particular location, Harrington did not automatically become a special employee of any of the S. & S. defendants by reason of that directive. (Stone v Bigley Bros., 309 NY 132 .) The jury should have been permitted to decide whether Harrington, while setting up the crane for operation, remained in Action’s employ or had become, at that point in time, a special employee of one or more of the S. & S. defendants. With the exception of Drott’s cross claim, all other claims and cross claims against Action should be reinstated and a new trial held to determine the respective liability, if any, of all remaining parties.

Likewise, the trial court should not have found, as a matter of law, that the three S. & S. defendants comprised a single entity. Although the accountant for the S. & S. corporations may have believed that they formed a single business entity, this fact is not a sound or compelling reason for the court to treat them as one corporation. Upon retrial, the jury should *267 be permitted to determine the respective employers for all the workmen involved in this occurrence. At that time, the jury should be allowed to decide whether the three S. & S. corporations should be treated as a single employer or as three independent employers.

I agree with the trial court that the crane falls within the ambit of subdivision 1 of section 240 of the Labor Law (cf. Ranney v Habern Realty Corp., 279 App Div 426 ). I further agree that subdivision 1 of section 240 places a nondelegable duty upon the owner and a general contractor. (Rocha v State of New York, 45 AD2d 633 , lv to app den 36 NY2d 642 .) So too, I would not hesitate to permit an owner or general contractor to be indemnified under appropriate circumstances for any liability incurred under subdivision 1 of section 240. Since an indemnitor would be directly liable to an owner or general contractor for a breach of its own duty, that indemnitor should not be permitted to look to its own employee for contribution.

With foregoing guidelines in view, I would modify the judgment, entered March 12, 1975, by reversing all portions of the three decretal paragraphs except for the portion of the second paragraph as dismisses Drott’s cross claim against Action, and as so modified, I would otherwise affirm. I would also modify the interlocutory judgment, entered June 4, 1975, by reversing decretal paragraphs 3 through 12, by reinstating all claims and cross claims specified therein, and, as modified, I would otherwise affirm. Upon modification, all remaining claims should be remanded for a new trial.