The contractor Marcato might have been held liable on the cross complaint if the facts sufficiently disclosed that the sole cause of the accident was lack of a repair that Marcato had the contractual duty to remedy. Such proof would have established that Marcato was primarily negligent, and the landlord only passively negligent and secondarily liable (see Tipaldi v. Riverside Memorial Chapel, 273 App. Div. 414, 417, affd. 298 N.Y. 686). Here, however, the proof was...
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