STATE OF NEW YORK

SUPREME COURT : COUNTY OF CHAUTAUQUA

TERRY TANE

INDEX NUMBER: H-03796

Plaintiff

vs.

WHIPPLE-ALLEN CONSTRUCTION CO., INC.

CHADWICK BAY HOTEL CORPORATION

d/b/a SHERATON HARBORFRONT INN

Defendants

_________________________________________________________

CHADWICK BAY HOTEL CORPORATION

d/b/a SHERATON HARBORFRONT INN

Defendant and

First Third-Party Plaintiff

vs.

BEKINS DISTRIBUTION SERVICES CO.

First Third-Party Defendant

_________________________________________________________

CHADWICK BAY HOTEL CORPORATION

d/b/a SHERATON HARBORFRONT INN

Defendant and

Second Third-Party Plaintiff

vs.

PROFESSIONAL INSTALLERS, INC.

Second Third-Party Defendant

_________________________________________________________

James D. Schultz, Jr., Esq.

MISERENDINO, CELNIKER, SEEGERT & ESTOFF, P.C.

Attorneys for Plaintiff

964 Ellicott Square Building

Buffalo, New York 14203

Gerard A. Strauss, Esq.

DAMON & MOREY

Attorneys for Defendant and

Third-Party Plaintiff

Chadwick Bay Hotel Corporation

d/b/a Sheraton Harborfront Inn

1000 Cathedral Place

Buffalo, New York 14202

SLIWA & LANE

Attorneys for First Third-Party Defendant

Bekins Distribution Services Co., and

Second Third-Party Defendant

Professional Installers, Inc.

700 Cathedral Park Tower

37 Franklin Street

Buffalo, New York 14202

Casey E. Callanan, Esq.

LAW OFFICES OF LAWRENCE M. RUBIN

Attorneys for Defendant

Whipple-Allen Construction Co., Inc.

345 Olympic Towers

300 Pearl Street

Buffalo, New York 14202

DECISIONANDORDER

Plaintiff, a Erie Acoustical Tile employee says he was

injured July 13, 1989, at the job site when a box thrown from the

fourth floor window of the Sheraton Inn struck him on the head.

There were no witnesses to the accident.

Defendant Whipple-Allen Construction Co. ("W-A" or

"Whipple") was the general contractor; Bekins Distribution

Services ("BK") contracted with Chadwick to install furniture at

the Inn and utilized its subsidiary, Professional Installers

Inc., ("Professional" or "PI") to do the installation and debris

disposal work for the furniture project.

Plaintiff moves for summary judgment against Chadwick, as

owner, and W-A, as general contractor.

Chadwick:

1. Opposes summary judgment motion of Bekins and Professional.

2. Seeks common law and contractual indemnity against W-A because

of its default in replying to the claim and common law

indemnity against Bekins and Professional on the grounds it

did not exercise any control or supervision.

BK and PI seek summary judgment dismissing Chadwick's complaint.

2

On the day plaintiff was struck, the interior elevator used

to transport debris was unavailable, Professional Installers'

project supervisor claims he got permission from the general

contractor W-A to use the windows to throw their empty cardboard

boxes out the window. W-A denies it gave such permission.

No one disputed plaintiff's contention that Erie Acoustical

had either boarded up or otherwise secured all the windows. There

were standing orders that debris was not to be thrown from the

windows.

The PI supervisor says he instructed his crew that one man

was responsible for throwing the boxes out, and one or two men

were to transport those boxes to the dumpster. When plaintiff

was struck, there was no one else around.

The fact that the incident was unwitnessed does not help

defendants. See RODRIGUEZ v NEW YORK CITY HOUS. AUTHOR. 194 AD2d

460, 599 NYS2d 263.

Professional Installers admits it threw debris out the

window that day; admits it paid for plaintiff's eye glasses that

were knocked off his head and broken by the falling box. This is

sufficient to bring the case within the unwitnessed accident

exceptions in cases referred to in BK/PI memo of law.

Defendants Whipple and Chadwick provided no scaffolds,

hoists, slings, pulleys, ropes or other devises that could have

been used to transport the debris from the 4th floor to the

ground in a controlled manner. Their failure to meet their LL

241 undelegatable duty makes them responsible for any worker

injury resulting from the gravity disposal system of rubbish

disposal utilized by BK/PI.

3

Professional's supervisor admits it discarded items through

the hotel's open window, a window that had been secured by

plaintiff's employer. Even if a worker from a different company

had used the window for debris disposal, Professional created the

condition; it cannot escape liability because someone else may

have thrown the box that hit plaintiff. Nowhere does it appear

that Professional re-secured the window after disposing of

material.

Plaintiff was injured because of special hazards related to

the gravity-related debris disposal. See ROSS v. CURTIS-PALMER

HYDRO-ELECTRICO., 81 NY2d 494, 601 NYS2d 49.

The Court grants the motion of plaintiff for partial summary

judgment against defendants Whipple-Allen Construction Co.

and Chadwick Bay Hotel Corporation; grants the motion of Chadwick

vs Whipple-Allen Construction Co. for indemnification; grants

the Whipple-Allen Construction Co. motion for partial summary

judgment against Bekins and Professional.

THIS IS THE DECISION AND ORDER OF THIS COURT. NO FURTHER ORDER

SHALL BE NECESSARY.

Dated: September 18, 1995

Mayville, New York

__________________________

JOSEPH GERACE

SUPREME COURT JUSTICE