Citation Numbers: 16 Misc. 2d 582
Judges: Cone
Filed Date: 11/21/1958
Status: Precedential
Modified Date: 2/5/2022
Plaintiff moves to strike out paragraph “third” of defendant corporation’s answer and paragraph ‘ seventh ’ ’ of the answer of the individual defendants, under subdivision 6 of rule 109 of the Rules of Civil Practice on the ground that the defenses set forth therein are insufficient in law.
The complaint alleges a cause of action for wrongful death of plaintiff’s intestate, a window cleaner, due to the negligence of the defendants in failing to comply and conform with the requirements of and in violating section 202 of the Labor Law of the State of New York. The numbered paragraphs set up the defense of contributory negligence. The defense of contributory negligence may not be asserted as a defense in an action predicated on a violation of section 202 of the Labor Law. (Koenig v. Patrick Constr. Corp., 298 N, Y. 313; Pollard v. Trivia Bldg. Co., 291 N. Y. 19; Teller v. Prospect Heights Hosp., 255 App. Div. 488, revd. on other grounds 280 N. Y. 456; Stern v. Great Is. Corp., 250 App. Div. 115.)
Teller v. Prospect Heights Hosp. (280 N. Y. 456, supra), relied on by defendants, is readily distinguishable. There the court held that the complaint could not be so construed as to permit the cause of action to depend upon the statute alone since the allegation of violation of duty was exclusively limited to the failure of the defendant to provide anchors attached to the side frames of the windows of the building, etc., whereas the statute contained no such requirement. The requirement was contained in the rules of the Industrial Board, a violation of which merely constituted some evidence of defendant’s negligence, whereas
The motions to strike the defenses are granted. Settle orders on notice.