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RUSIN v. JACKSON HGTS. SHOPPING CTR.

27 N.Y.2d 103 (1970)

John Rusin, Plaintiff-Respondent, v. Jackson Heights Shopping Center, Inc., Defendant-Appellant, and Third-Party Plaintiff-Respondent. Keystone Fireproofing Corp. et al., Third-Party Defendants-Appellants.

Court of Appeals of the State of New York.

Decided July 2, 1970.

Attorney(s) appearing for the Case

Edward H. Schiff and Harold L. Cowin for appellant.

Richard Bakalor and Robert E. Quirk for third-party appellants.

Arthur N. Seiff and Harry H. Lipsig for respondent.

Judges BURKE, SCILEPPI, BERGAN and JASEN concur in Per Curiam opinion; Chief Judge FULD and Judges BREITEL and GIBSON dissent and vote to affirm in the following memorandum: The issue of negligence is based on the alleged concurrent negligence of the owner in failing to cover the excavation into which plaintiff fell and not on the breaking of the plank supplied by his employer. This raised a proper issue of fact for the jury (Ithaca Trust Co. v. Driscoll Bros. & Co., 169 App. Div. 377, affd. 220 N.Y. 617). Moreover, the opinion of the Trial Justice on the post-verdict motion as well as the charge to the jury make the issue quite clear.

Per Curiam.

Defendant Jackson Heights Shopping Center, Inc. was the owner of a shopping center building which was under construction March 23, 1959 when plaintiff was injured.

Plaintiff's employer, Keystone Fireproofing Corporation, was engaged as a subcontractor to install fiber glass insulation between the iron beams and the roof.

In the course of doing the...

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