Zuccelli v. City Construction Co.

The third-party plaintiffs conceded liability under section 200 of the Labor Law. There is no dispute as to the fact that such concession is not binding on the third-party defendant. If, in fact, and in law there was no such liability on the part of the third-party plaintiffs, then there is no basis for the judgment over against the third-party defendant. (Williams v. Rhode Island Corp., 281 App. Div. 618, 621.) We find that the place where the plaintiffs worked and where the accident occurred was not a place within the scope or meaning of section 200. The place was one created by plaintiffs' employer, the third-party defendant, and constituted part of the work in progress. It was solely within the control of the third-party defendant. Consequently no liability could be found as against the third-party plaintiffs under section 200 of the Labor Law (Dimare v. Driscoll Co., 241 App. Div. 736). In the circumstances the judgment appealed from is unanimously modified so as to *843eliminate therefrom the judgment over against the third-party defendant and, as so modified, affirmed, with costs to the appellant. Settle order on notice. Concur- — Peck, P. J., Cohn, Bastow and Rabin, JJ.