New York Court of Appeals, 1976

Kappel v. Fisher Bros.

New York Court of Appeals · Decided July 15, 1976

39 N.Y.2d 1039; 355 N.E.2d 305; 387 N.Y.S.2d 251; 1976 N.Y. LEXIS 2970

Cases that cite this one

15 later published cases cite this decision.

In re World Trade Center Disaster Site Litigation (District Court, S.D. New York 2006)
Curby Toussaint v. Port Authority of New York and New Jersey (N.Y. 2022)
Houde v. Barton (Appellate Division of the Supreme Court of New York 1994)
Lawyer v. Rotterdam Ventures, Inc. (Appellate Division of the Supreme Court of New York 1994)
Ross v. Curtis-Palmer Hydro-Electric Co. (N.Y. 1993)
Maracle v. DiFranco (Appellate Division of the Supreme Court of New York 1993)
Whitaker v. Norman (N.Y. 1989)
Nagel v. Metzger (Appellate Division of the Supreme Court of New York 1984)
Allen v. Cloutier Construction Corp. (N.Y. 1978)
Haimes v. New York Telephone Co. (N.Y. 1978)
Bass v. Standard Brands, Inc. (Appellate Division of the Supreme Court of New York 1978)
Allen v. Cloutier Construction Corp. (Appellate Division of the Supreme Court of New York 1977)
Carinha v. Action Crane Corp. (Appellate Division of the Supreme Court of New York 1977)
Washington v. East 87th & 88th Street Contracting Co. (Civil Court of the City of New York 1977)
Freeo v. Victor A. Perosi, Inc. (Appellate Division of the Supreme Court of New York 1976)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

Memorandum. The order of the Appellate Division should be affirmed for the reasons stated by that court in its memorandum. (49 AD2d 578.) We add, however, that section 241 of the Labor Law was amended in 1969, nearly two and one-half years after the accident involved in this case and, as a result, it may no longer be necessary to establish, as plaintiff was required and failed to do here, that the building owner and general contractor actively controlled, directed or supervised the work. We also note that Kelly v Diesel Constr. Div. of Carl A. Morse, Inc. (35 NY2d 1), rélied upon by the dissenting Justices at the Appellate Division, is distinguishable upon the ground that, in that case, the general contractor furnished, maintained and operated the defective instrumentality that caused the accident. More importantly, although Kelly abrogated the old rule that an owner or general contractor liable under the Labor Law could not recover against a negligent subcontractor, even if the subcontractor was solely responsible for the accident, Kelly did not alter the law respecting the first instance liability of the owner or general contractor. As *1041the Appellate Division stated, owners and general contractors were not liable under the former provisions of the Labor Law absent a showing that they controlled, supervised or directed the work. (49 AD2d, at p 579.) Lastly, the "protective” appeal taken as of right by the defendant owner/general contractor from that portion of the Appellate Division order which reversed a judgment in its favor on its third-party complaint and dismissed the third-party complaint should be dismissed. Defendant was not aggrieved by the Appellate Division order since that order released defendant from all liability.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum.

On plaintiffs appeal: Order affirmed, with costs.

On third-party plaintiffs’ appeal: Appeal dismissed, without costs.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.