Opinion
September 10, 1984
Appeal from the Supreme Court, Kings County (Sullivan, J.).
Judgment modified, on the law, by vacating the judgment granted in favor of defendants Atlas Transit Mix Corp., Donald F. Ryan and Margaret M. Ryan, reinstating and severing the action against said defendants, their cross claims against each other, and the Ryans' counterclaim, and new trial granted with respect to those defendants on the complaint, their cross claims against each other, and the Ryans' counterclaim. As so modified, judgment affirmed, with one bill of costs to plaintiffs and defendant Marquette Concrete Manufacturing Co., appearing separately and filing separate briefs.
Viewing the evidence in the light most favorable to plaintiffs, it cannot be said that no rational process existed by which the trier of facts could find in favor of plaintiffs as against defendants Atlas Transit Mix Corp. (Atlas), Donald F. Ryan and Margaret M. Ryan (see Lipsius v White, 91 A.D.2d 271, 276-277). Plaintiffs presented sufficient evidence to establish a duty on Atlas' part to warn against potentially dangerous propensities of the concrete delivered (see Young v Elmira Tr. Mix, 52 A.D.2d 202). The concrete delivered could be viewed as defective absent sufficient warnings. Plaintiffs thereby at least made out a case on a strict products liability theory ( Voss v Black Decker Mfg. Co., 59 N.Y.2d 102, 106-107). Whether Atlas, under the circumstances, met its duty to warn was disputed. Therefore, a question of fact existed to be resolved by the jury ( Lancaster Silo Block Co. v Northern Propane Gas Co., 75 A.D.2d 55, 64-65) and the dismissal with respect to Atlas was erroneous.
Similarly, plaintiffs adduced sufficient evidence at trial on common-law negligence and statutory theories (see Labor Law, § 200, subd. 1; § 241, subd. 6) of liability to withstand the motion to dismiss by the owners, Mr. and Mrs. Ryan. Further, Mr. Ryan, who hired plaintiffs to perform the concrete work, clearly had a duty to plaintiffs to exercise reasonable care to render the place of work safe (Labor Law, § 200; Copertino v Ward, 100 A.D.2d 565). Mr. Ryan may have been responsible for the manner of dumping concrete into the work area by which concrete was purportedly splattered onto plaintiffs John Maher and Salvatore Lenza. Mr. Ryan also allegedly supplied some or all of the tools used during the job. Finally, he was concededly aware at some point that plaintiffs Maher and Lenza should have been wearing rubber boots. Under the circumstances, plaintiffs proffered sufficient evidence to support the Ryans' liability under common-law and statutory theories.
Parenthetically, we observe that the 1980 amendment to section 241 Lab. of the Labor Law exempting owners of one- and two-family dwellings who contract for but do not direct or control the work is inapplicable, inasmuch as the incident occurred prior to the effective date of the amendment ( Copertino v Ward, supra, p 567). We further note that the term "building", as used in section 241 Lab. of the Labor Law is not to be construed in its narrowest sense ( Copertino v Ward, supra; Celestine v City of New York, 86 A.D.2d 592, aff'd 59 N.Y.2d 938; see, also, Page v State of New York, 73 A.D.2d 479, aff'd 56 N.Y.2d 604; Tilkins v City of Niagara Falls, 52 A.D.2d 306) and the repaving work being done in the instant case would fall within the ambit of the statute.
Finally, no error was committed in dismissing the complaint against defendant Marquette Concrete Manufacturing Co. (Marquette). Indeed, plaintiffs expressly indicated they did not oppose Marquette's motion to dismiss the complaint insofar as it was asserted against it. Thus, the action and any cross claims against Marquette are not reinstated. Mangano, J.P., Thompson, O'Connor and Boyers, JJ., concur.