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SEIGER v. PORT OF N. Y. AUTH.

43 A.D.2d 339 (1974)

Frank Seiger et al., Respondents, v. Port of New York Authority et al., Appellants, et al., Defendant

Appellate Division of the Supreme Court of the State of New York, First Department.

January 28, 1974.

Attorney(s) appearing for the Case

Richard C. Browne of counsel (D'Amato, Costello & Shea, attorneys), for appellants.

Evan R. Salmore of counsel (Shaftan Friedman Hodys & Salmore, attorneys), for respondents.

McGIVERN, P. J., and MURPHY, J., concur with CAPOZZOLI, J.; STEUER, J., dissents in an opinion.

CAPOZZOLI, J.

In this case the plaintiff was not working above the planking but was actually kneeling on the planking, doing his work, when a heavy plank fell from above, striking the plank on which he was working, breaking it and catapulting him three stories below. The case of Gorman v. Grand Cent. Bldg. (29 A.D.2d 849, affd. 22 N.Y.2d 821

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