KEMP v. LAKELANDS PRECAST, NEW YORK TELEPHONE COMPANY, 55 N.Y.2d 1032 (1982)

449 N.Y.S.2d 710, 434 N.E.2d 1077

ROBERT V. KEMP et al., Respondents, v. LAKELANDS PRECAST, INC., Respondent, and NEW YORK TELEPHONE COMPANY, Appellant. LAKELANDS PRECAST, INC., Third-Party Plaintiff-Respondent, v. ANRAD CONSTRUCTION CORPORATION, Third-Party Defendant-Respondent.

Court of Appeals of the State of New York.
Decided February 25, 1982

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Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, JOHN H. PENNOCK, J.

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Francis E. Lehner and Michael M. Emminger for appellant.

Alfred C. Purello for plaintiffs-respondents.

James L. Pemberton for defendant-respondent.

Dale M. Thuillez for third-party defendant-respondent.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 N.Y.CRR 500.2 [b]), order modified, with costs to appellant, by (1) granting a new trial solely on the issue of defendant New York Telephone Company’s liability to plaintiffs, and (2) in the event New York Telephone is on such retrial found liable to plaintiffs, directing a verdict in its favor against Lakelands Precast, Inc., on the claim over in the full amount of the telephone company’s liability; and, as so modified, order affirmed. The trial court erred in refusing to charge contributory negligence as a bar to recovery by plaintiffs (see Long v Forest-Fehlhaber, 55 N.Y.2d 220). Lakelands, not having appealed to this court, is not, however, entitled to a retrial as to liability. The telephone company’s liability to plaintiffs, if any, arises from the nondelegable duty imposed upon it by subdivision 6 of section 241
of the Labor Law. There being no evidence that it had authority to exercise or in fact did exercise control over the offloading of the vault by Lakelands’ employee in the course of which the plaintiff’s injury occurred, New York Telephone was entitled under principles of common-law indemnity to a directed verdict on its claim over.

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Concur: Chief Judge COOKE and Judges JASEN, JONES, WACHTLER and MEYER. Taking no part: Judges GABRIELLI and FUCHSBERG.