Johnson v. Artkraft Strauss Sign Corp.

McGivern, P. J. (dissenting).

I would affirm the judgment against defendant Artkraft Strauss Sign Oorp. and reverse on the law the judgment against defendant Frank W. Stevens, Inc. and dismiss the complaint against the latter defendant.

We have under consideration a special verdict and I find no valid basis for disturbing the judgment against defendant subcontractor Artkraft. The charge, although not ideal, was sufficient to sustain intelligent response by the jury to the special questions directed to the jury. The record fully sustains both the specific finding of negligence by the jury against the defendant Artkraft and the trial court’s reserved determination of liability. CPLE 4111 (subd. [b]) provides, inter alia, that when the court requires a jury to return a special verdict: ‘ ‘ The court shall give sufficient instruction to enable the jury to make its findings upon each issue. If the court omits any issue of fact raised by the pleadings or evidence, each party waives his right to a trial by jury of the issue so omitted unless before the jury retires he demands its submission to the jury. As to an issue omitted without demand, the court may make an express finding or shall be deemed to have made a finding in accordance with the judgment.” Thus, I fail to appreciate the necessity of a new trial as to the defendant Artkraft.

And in view of the complete failure of evidence to sustain the judgment against the defendant Stevens, either under common law or Labor Law (§ 200), the complaint against this defendant should be dismissed. (Rusin v. Jackson Heights Shopping Center, 27 N Y 2d 103; Persichilli v. Triborough Bridge & Tunnel Auth., 16 N Y 2d 136.) On this record, it is clear that there was no basis for the judgment against Frank *486W. Stevens, Inc. As the Court of Appeals noted in Persichilli (supra, p. 145): “ It is by this time well settled that the duty to provide a safe place to work is not breached when the injury arises out of a defect in the subcontractor’s own plant, tools and methods, or through negligent acts of the subcontractor occurring as a detail of the work ”.

Markewich, Steuer and Capozzoli, JJ., concur in Per Curiam opinion; McGtvern, P. J., dissents in an opinion in which Kupferman, J., concurs.

Judgment, Supreme Court, New York County, entered on November 8, 1973, reversed, on the law and on the facts, and a new trial directed with respect to all issues of liability and damages raised by all of the parties hereto, with $60 costs and disbursements to abide the event.