MANZITTO v. JACK PARKER CONSTRUCTION CORPORATION, 26 N.Y.2d 975 (1970)

311 N.Y.S.2d 18, 259 N.E.2d 487

ALFIO MANZITTO, Appellant, v. JACK PARKER CONSTRUCTION CORPORATION, Respondent, et al., Defendant.

Court of Appeals of the State of New York.Argued March 2, 1970
Decided April 16, 1970

Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, MURRAY T. FEIDEN, J.

Page 976

Robert Klonsky for appellant.

William F. McNulty for respondent.

MEMORANDUM. The order of the Appellate Division should be reversed, with costs, and a new trial ordered. The trial court erred in declining to charge section 23-3.8 of the Industrial Code (12 N.Y.CRR 23.3 [h]) in its entirety; there being, at the least, questions of fact whether plaintiff or any other person was required to work within the area of exposure or was required by any work duties being performed elsewhere at that time to pass through it, or whether plaintiff and any others were merely at work in the vicinity of the exposed area. There was error, too, in the instruction that if the jury should find that the falling object that injured plaintiff was a brick, rather than a piece of wood, the verdict must be for the defendant.

Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, BREITEL, JASEN and GIBSON concur.

Order reversed, with costs, and a new trial granted in a memorandum.

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