
    John Joyce, Respondent-Appellant, v. Rumsey Realty Corp., Appellant, and H. J. Butler & Bro., Inc., Respondent. Rumsey Realty Corp., Third-Party Plaintiff-Appellant, v. Mara Construction Corp., Third-Party Defendant-Respondent.
    Argued January 3, 1966;
    decided March 24, 1966.
    
      
      Benjamin H. Siff and Abraham Solomon for respondent-appellant.
    I. A failure to comply with subdivision 1 of former section 241 of the Labor Law resulting in accident and injury to a worker on a construction job renders the owner and general contractor absolutely liable, irrespective of contributory negligence, if any, on the part of the injured laborer, or the negligence of anyone else. (Koenig v. Patrick Constr. Corp., 298 N. Y. 313.) II. The undisputed and conceded facts established that Rumsey was absolutely liable for failing to comply with subdivision 1 of former section 241 of the Labor Law. (Bobbey v. Turner Constr. Corp., 308 N. Y. 890; Martin v. Siegfried Constr. Co., 16 A D 2d 383; Olsommer v. Walker & Sons, 4 A D 2d 424, 4 N Y 2d 793; Red Hook Cold Stor. Co. v. Department of Labor, 295 N. Y. 1; Dudar v. Milef Realty Corp., 258 N. Y. 415; Drummond v. Norton Co., 156 App. Div. 126; Hooey v. Airport Constr. Co., 253 N. Y. 486.) III. Plaintiff was in the class of workers protected by the statute. (De Haen v. Rockwood Sprinkler Co., 258 N. Y. 350; Vallina v. Wright & Kremers, 7 A D 2d 101; Vassiliades v. Joseph P. Blitz, Inc., 36 Misc 2d 5; Bergen v. East 84th Constr. Corp., 22 A D 2d 935, 16 N Y 2d 644; Ithaca Trust Co. v. Driscoll Bros. & Co., 169 App. Div. 377, 220 N. Y. 617; Holgerson v. South 45th St. Garage, 16 A D 2d 255, 12 N Y 2d 1011; Kernan v. American Dredging Co., 355 U. S. 426.) IV. The failure to comply with subdivision 1 of former section 241 of the Labor Law was a proximate cause of the accident which injured plaintiff. (Rivera v. City of New York, 11 N Y 2d 856; Martín v. Siegfried Constr. Co., 16 A D 2d 383; Hartman v. Berlin & Jones Envelope Co., 71 Misc. 30, 146 App. Div. 926; Porcella v. Mutual Reserve Fund Life Assn., 50 App. Div. 158; Hawkes v. Goll, 256 App. Div. 940, 281 N. Y. 808.) V. In the event the court holds that it was error to direct the verdict and orders a new trial, the issue of Bumsey’s responsibility should be submitted on common-law principles as well as for a violation of subdivision 1 of the former section 241 of the Labor Law. (Galbraith v. Pike & Sons, 18 A D 2d 39; Dolnick v. Dormer Lbr. Corp., 300 N. Y. 660.) VI. It was error to dismiss plaintiff’s complaint against Butler Lumber Co. (Thomas v. Leary, 15 A D 2d 438; Williams v. Union Carbide Corp., 17 A D 2d 661; Goldberg v. Kollsman Instrument Corp., 12 N Y 2d 432; Ryan v. Progressive Grocery Stores, 255 N. Y. 388; Mouren v. Great Atlantic & Pacific Tea Co., 1 N Y 2d 884; Bowman v. Great Atlantic & Pacific Tea Co., 308 N. Y. 780; Petersen v. Lamb Rubber Co., 54 Cal. 2d 339.)
    
      Copal Mintz and Morris Zweibel for appellant and third-party plaintiff-appellant.
    I. Subdivision 1 of former section 241 of the Labor Law has no application to this case. (Drummond v. Norton Co., 156 App. Div. 126; Martin v. Siegfried Constr. Co., 16 A D 2d 383; Ithaca Trust Co. v. Driscoll Bros. & Co., 169 App. Div. 377, 220 N. Y. 617; Olsommer v. Walker & Sons, 4 A D 2d 424, 4 N Y 2d 793; Giorlando v. Stuyvesant Town Corp., 4 A D 2d 701; Moran v. Rheinstein Constr. Co., 10 A D 2d 976; Vivian v. J. W. Enterprises, 16 A D 2d 933; McNeill v. BottsfordDickinson Co., 128 App. Div. 544; McHugh v. Grand Cent. Bldg. & Constr. Co., 133 App. Div. 100; Shannahan v. Empire Eng. Corp., 204 N. Y. 543; Walters v. Rao Elec. Equip. Co., 289 N. Y. 57; De Haen v. Rockwood Sprinkler Co., 258 N. Y. 350; Holgerson v. South 45th St. Garage, 16 A D 2d 255, 12 N Y 2d 1011; Ranney v. Habern Realty Corp., 281 App. Div. 278, 306 N. Y. 820; Boronkay v. Robinson & Carpenter, 247 N. Y. 365.) II. The absence of flooring was not a proximate cause of plaintiff’s accident. (Employers’ Liab. Assur. Corp. v. Post & McCord, 286 N. Y. 254; Rivera v. City of New York, 11 N Y 2d 856.) III. At best for plaintiff, it was a jury question whether the absence of flooring caused or contributed to, or aggravated, plaintiff’s injuries. (Vassiliades v. Joseph P. Blitz, Inc., 36 Misc 2d 5; Matter of Parchefsky v. Kroll Bros., 267 N. Y. 410; Derby v. Prewitt, 12 N Y 2d 100; Musco v. Conte, 22 A D 2d 121.) IV. The trial court erred in dismissing the cross claim against Butler. (Jordan v. City of New York, 3 A D 2d 507, 5 N Y 2d 723; Bertram v. New York City Tr. Auth., 16 A D 2d 779; Semanchuck v. Fifth Ave. & 37th St. Corp., 290 1ST. Y. 412; American Employers’ Ins. Co. v. Brandt Masonry Corp., 252 App. Div. 506; McFall v. Compagnie Mar. Beige, 304 N. Y. 314; Lobello v. City of New York, 268 App. Div. 880, 294 N. Y. 816; Tipaldi v. Riverside Mem. Chapel, 273 App. Div. 414, 298 N. Y. 686; Wanamaker v. Otis Elevator Co., 228 N. Y. 192; General Aniline & Film Corp. v. Schrader S Son, 12 N Y 2d 366.) Y. The trial court erred in dismissing Bumsey’s third-party complaint against Mara. (Schwarts v. Merola Bros. Constr. Corp., 290 N. Y. 145; Soderman v. Stone Bar Assoc., 3 A D 2d 680; Iroquois Gas Corp. v. International Ry. Co., 240 App. Div. 432; Perlmutter v. Beth David Eosp., 308 N. Y. 100; Carlone v. Eartsdale Constr. Corp., 14 A D 2d 341, 11 N Y 2d 1087; Samelli v. 3rd S Ave. X Corp., 15 A D 2d 964; Glass v. Gens-Jarboe, Inc., 280 App. Div. 378, 306 N. Y. 786.)
    
      John Nielsen and Thomas O. Perrell for respondent.
    I. Plaintiff failed to prove a cause of action against Butler. (Greenberg v. Lorenz, 9 N Y 2d 195; Thomas v. Leary, 15 A D 2d 438; Williams v. Union Carbide Corp., 17 A D 2d 661; Goldberg v. Kollsman Instrument Corp., 12 N Y 2d 432.) II. Bumsey’s cross complaint against Butler was properly dismissed. (Compagnia Italiano Trasporto Olii Minerali v. Sun Oil Co., 43 F. 2d 683; Conte v. Large Scale Development Corp., 10 N Y 2d 20, Semanchuck v. Fifth Ave. & 37th St. Corp., 290 N. Y. 412; Walters v. Rao Elec. Equip. Co., 289 N. Y. 57; Employers’ Liab. Assur. Corp. v. Post & McCord, 286 N. Y. 254; Tobin v. American Sur. Co., 32 Misc 2d 687; Scala v. Schreiber, 17 Misc 2d 981; Lee v. Tandy & Allen Constr. Co., 14 Misc 2d 348; American Employers’ Ins. Co. v. Brandt Masonry Co., 252 App. Div. 506; Eisenbach v. Gimbel Bros., 281 N. Y. 474; Natale v. Pepsi-Cola Co., 7 AD 2d 282.)
    
      Philip Hoffer, Raymond J. MacDonnell, Peter T. Affatato and Rose L. Hoffer for third-party defendant-respondent.
    The judgment in favor of the third-party defendant subcontractor dismissing the third-party complaint of the general contractor in this case involving injuries suffered by a construction worker by reason of the violation of the Labor Law by the general contractor was entirely justified on the law and the facts. (Conte v. Large Scale Constr. Corp., 10 N Y 2d 20; Rufo v. 
      Orlando, 309 N. Y. 345; Semanchuck v. Fifth Ave. & 37th St. Corp., 290 N. Y. 412; Walters v. Rao Elec. Equip. Co., 289 N. Y. 57; Schwartz v. Merola Bros. Constr. Corp., 290 N. Y. 145; Tipaldi v. Riverside Mem. Chapel, 298 N. Y. 686; Jordan v. City of New York, 3 A D 2d 507, 5 N Y 2d 723; Carlone v. Hartsdale Constr. Corp., 14 A D 2d 341,11 N Y 2d 1087; Dolnick v. Bonner Lbr. Corp., 275 App. Div. 954, 300 N. Y. 660; Sarnelli v. 3rd & Ave. X Corp., 15 A D 2d 964; Glass v. Gens-Jarboe, Inc., 280 App. Div. 378, 306 N. Y. 786; Kile v. Riefler Bros. Contrs., 282 App. Div. 1000; Bush Term. Bldgs. Co. v. Luckenbach S. S. Co., 9 N Y 2d 426.)
   Chief Judge Desmond.

At the end of the trial there was, between plaintiff and defendant Bumsey, no unresolved issue as to liability and so a verdict was properly directed for plaintiff against Bumsey, leaving to the jury the fixation of the damages. Bumsey had unquestionably violated the unequivocal command of subdivision 1 of former section 241 of the Labor Law that the contractor must complete the flooring as the building progresses. Plaintiff was moving planks on the fourth floor. The first, second and third levels had not been floored over as required by the statute and plaintiff, standing on a plank which broke, fell through the openings into the basement. The duty imposed by the statute and violated by defendant Bumsey was “ a flat and unvarying” one (Koenig v. Patrick Constr. Corp., 298 N. Y. 313, 318) and again as we said in Koenig: “ For breach of that duty, thus absolutely imposed, the wrongdoer is rendered liable without regard to his care or lack of it.” Or, as we put it in Major v. Waverly & Ogden (7 N Y 2d 332, 334), a violation of such a statute is “ conclusive evidence of negligence ”. Conclusive evidence of negligence calls for a directed verdict. It is, of course, undeniable that the statute is for the protection of workers situated as was plaintiff (see Bergen v. East 84th St. Constr. Corp., 16 N Y 2d 644).

That plaintiff was caused to fall by the breaking of a plank is beside the point. No one is ever physically injured by the existence of an unguarded opening. Something must project him into the hole but that something cannot be more than a concurrent cause of the injury. The statute puts absolute and unconditional liability on the contractor and in favor of the workman who falls through the floor opening which the statute insists must he covered. To hold otherwise would be to deprive the worker of the protection afforded him by the Labor Law. To say that a jury in such a case could bring in a no cause verdict would be to say that the jury can nullify the statute.

The order should be affirmed, with costs.

Judges Ftjld, Van Voorhis, Burke, Scileppi, Bergan and Keating concur.

Order affirmed, with costs to Butler against Joyce and to Joyce and Mara against Rumsey.  