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ZIPAY v. BENSON

47 A.D.2d 233 (1975)

Richard Zipay et al., Respondents-Appellants, v. H. Coolidge Benson et al., Defendants and Third-Party Plaintiffs-Appellants-Respondents; Dyer-Fitts Construction Co., Inc., Third-Party Defendant-Appellant. (Action No. 1.) Richard Zipay et al., Respondents-Appellants, v. Allied Chemical Corporation, Defendant, and Clark Jamesville Rental, Inc., Defendant and Third-Party Plaintiff-Appellant-Respondent; Dyer-Fitts Construction Co., Inc., Third-Party Defendant-Appellant. (Action No. 2.)

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

April 3, 1975

Attorney(s) appearing for the Case

Kramer, Wales & McAvoy (Philip J. Kramer of counsel), for Clark Trucking Company and another, defendants-appellants-respondents and third-party plaintiffs-respondents.

Levene, Gouldin & Thompson (Carlton F. Thompson of counsel), for H. Coolidge Benson, appellant-respondent.

Herbert Lasky (Charles O. Ingraham of counsel), for Dyer-Fitts Construction Co., Inc., third-party defendant-appellant.

Chernin & Gold (Israel Margolis of counsel), for Richard Zipay and another, respondents-appellants.

GREENBLOTT, J. P., KANE and MAIN, JJ., concur with SWEENEY, J.; REYNOLDS, J., concurs in part and dissents in part in an opinion.

SWEENEY, J.

On August 1, 1966, plaintiff Richard Zipay was employed as a flagman by third-party defendant Dyer-Fitts Construction Co. Inc. (Dyer-Fitts), a contractor engaged in repairing a portion of Route 23 between Norwich and South Otselic, New York. On that day two of Dyer-Fitts' large machines, a 10-foot wide shoulder spreader and a paver, were being operated on the 18-foot wide highway in opposite directions...

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