McCarthy v. Exchange Buffet Corp.

In an negligence action to recover damages for personal injury, the plaintiff Michael McCarthy appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Kings County, entered May 7, 1962 after a jury trial, as dismissed the amended complaint at the end of plaintiff’s ease, for failure of proof. Judgment, insofar as appealed from, affirmed, without costs. It appears that the defendant Exchange Buffet Corp. engaged plaintiff’s employer, Geo. E. Joyce, Inc., to clean and paint certain equipment, including a ventilating hood, in the kitchen of its restaurant. Joyce sent plaintiff to do the work. No ladder or scaffold was supplied to plaintiff, nor was any such appliance requested by him. Instead, in order to reach the ventilating hood for the purpose of painting it, plaintiff successively used as platforms: a stove; an open, empty cooking vat; and an oven. During the course of such work, plaintiff attempted to stand on a second cooking vat, which was covered with a lid. His foot slipped and went into the vat. Unknown to plaintiff, the vat contained a scalding-hot liquid; and plaintiff was severely injured. In his complaint, plantiff alleged, inter alia, that defendant had failed to provide him with a safe place to work (Labor Law, § 200). The defendant served a third-party summons and complaint on plaintiff’s employer, Geo. E. Joyce, Inc., in which said defendant alleged the Joyce corporation’s liability over for plaintiff’s claim. In view of the dismissal of the main complaint, the third-party complaint was dismissed by the Trial Justice as academic. In our opinion, plaintiff failed to establish a prima facie ease; hence, the dismissal of the complaint at the end of his ease was proper (cf. Italiano v. Jeffrey Gardens Apts., 694 3 A D 2d 677, affd. 3 N Y 2d 977; Borshowsky v. Altman & Co., 280 App. Div. 599, affd. 306 N. Y. 798; Marshall v. City of New York, 308 N. Y. 836). Ughetta, Acting P. J., Kleinfeld, Hill, Rabin and Hopkins, JJ., concur.