Opinion
April 23, 1992
Appeal from the Supreme Court, New York County (Carl J. Mugglin, J.).
Plaintiff, an employee, of third-party defendant Hatfield Construction Corporation in charge of supervising the various tradesmen (carpenters, electricians, etc.) doing construction and renovation work at 164 Washington Park, Brooklyn, New York, was injured when he fell down a stairway at the premises into a pile of construction debris. While temporary lighting was used during the performance of work, the stairway down which plaintiff fell, was dark, because the workmen had left early due to a holiday. In addition, there was evidence that the plaintiff was examining a punch list to determine what work was left to be done while walking down the steps. It was plaintiff's contention that he fell because his foot got caught on electrical wiring suspended from a bannister.
The trial court improperly directed a verdict in favor of the plaintiff on the issue of liability. While Labor Law § 241 imposes a nondelegable duty upon owners and contractors to provide that the area in which work is to be performed is safe, irrespective of their control or supervision of the work site (Allen v Cloutier Constr. Corp., 44 N.Y.2d 290, 300, rearg denied 45 N.Y.2d 776), the comparative negligence of the plaintiff remains as a defense to an action instituted under the section (Long v Forest-Fehlhaber, 55 N.Y.2d 154). The trial court should have submitted the issue of liability to the jury with a proper instruction on comparative negligence (supra). Given this conclusion we need not reach the other issues raised by the third-party defendant-appellant.
Concur — Murphy, P.J., Carro, Wallach, Ross and Rubin, JJ.