Salvatore Giorlando v. Stuyvesant Town Corporation

In an action to recover damages for personal injuries, plaintiff appeals from a judgment in favor of defendant, entered upon
a dismissal of the complaint at the close of his case. Plaintiff, an employee of the general contractor, was injured when
he fell through an unguarded incinerator opening in the floor of the building being constructed for defendant, the owner.
There was no proof whatever that the defendant retained any supervision or control over the construction. Defendant's liability
is predicated solely on a violation of the duty to plank over the floor, allegedly imposed on it by subdivision 4 of section
241 of the Labor Law. Judgment unanimously affirmed, with costs. The uncontradicted proof in the record establishes that work
was in progress in and around the opening through which plaintiff fell, and that the work could not have been performed if
the opening had been covered. Under those circumstances, we are of the opinion that the statute did not require such opening
to be covered and that there was, consequently, no violation of the statutory duty to provide safeguards. (Cf. Ithaca Trust
Co. v. Driscoll Bros. & Co., 169 App. Div. 377, affd. 220 N. Y. 617.) We therefore do not reach the question whether
the provisions of section 241 are applicable to an owner who has retained no supervision or control over the construction.