| Mulcaire v Buffalo Structural Steel Constr. Corp. |
| 2007 NY Slip Op 09256 [45 AD3d 1426] |
| November 23, 2007 |
| Appellate Division, Fourth Department |
| Paul Mulcaire et al., Respondents, v Buffalo Structural SteelConstruction Corp., Defendant, and Ciminelli-Cowper Co., Inc., et al.,Appellants. |
—[*1] Collins & Maxwell, L.L.P., Buffalo (Alan D. Voos of counsel), forplaintiffs-respondents.
Appeal from an order of the Supreme Court, Erie County (John F. O'Donnell, J.), enteredJanuary 5, 2007 in a personal injury action. The order, insofar as appealed from, granted in partplaintiffs' motion for partial summary judgment against defendants Ciminelli-Cowper Co., Inc.and Hauptman-Woodward Medical Research Institute, Inc. and denied those parts of defendants'cross motion for summary judgment dismissing the complaint against defendantsCiminelli-Cowper Co., Inc. and Hauptman-Woodward Medical Research Institute, Inc.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslymodified on the law by denying the motion in its entirety and granting those parts of the crossmotion for summary judgment dismissing the Labor Law § 200 claim and common-lawnegligence cause of action against defendants Ciminelli-Cowper Co., Inc. andHauptman-Woodward Medical Research Institute, Inc. and dismissing that claim and cause ofaction against those defendants and as modified the order is affirmed without costs.
Memorandum: Plaintiffs commenced this Labor Law and common-law negligence action torecover damages for injuries sustained by Paul Mulcaire (plaintiff) while installing floor deckingin a building under construction. Plaintiff slipped and fell through an uncovered openingapproximately 18 feet to the floor. Plaintiffs moved for partial summary judgment on liabilityunder Labor Law § 240 (1) and § 241 (6), and defendants cross-moved for summaryjudgment dismissing the complaint. Supreme Court granted that part of defendants' cross motionwith respect to defendant Buffalo Structural Steel Construction Corp. and dismissed thecomplaint against it, and the court granted those parts of plaintiffs' motion with respect toCiminelli-Cowper Co., Inc. (Ciminelli) and Hauptman-Woodward Medical Research Institute,Inc. (hereafter, defendants). We conclude that the court should have denied plaintiffs' motion inits entirety, and we therefore modify the order accordingly.[*2]
Although plaintiffs met their initial burden withrespect to Labor Law § 240 (1) by establishing that "the absence of or defect in a safetydevice was the proximate cause of [plaintiff's] injuries" (Felker v Corning Inc., 90 NY2d219, 224 [1997]; see Tronolone vPraxair, Inc., 22 AD3d 1031, 1033 [2005]), we conclude that defendants raised an issueof fact whether the actions of plaintiff were the sole proximate cause of his injuries (see Montgomery v Federal ExpressCorp., 4 NY3d 805, 806 [2005]). Specifically, defendants raised an issue of fact whetherthere were extra sheets of decking available to plaintiff for safety purposes and, if so, whetherplaintiff, based on his training, prior practice, and common sense, knew or should have known tocover the opening, and similar openings, which were created by the act of laying down thedecking according to the project plan (see id.). For the same reason, the court should havedenied that part of plaintiffs' motion with respect to Labor Law § 241 (6) and properlydenied that part of the cross motion as well (see Plass v Solotoff, 5 AD3d 365, 367 [2004], lv denied 2NY3d 705 [2004]). We note in any event that, even if defendants admitted that they had violatedthe Industrial Code regulation at issue here, plaintiffs nevertheless would not be entitled to partialsummary judgment on liability as a matter of law because "[v]iolation of the Industrial Code,even if admitted by defendants, does not establish negligence as a matter of law but is merelysome evidence to be considered on the question of a defendant's negligence" (Puckett vCounty of Erie, 262 AD2d 964, 965 [1999] [internal quotation marks omitted]).The court also erred in denying those parts of the cross motion seeking summary judgmentdismissing the Labor Law § 200 claim and common-law negligence cause of action againstdefendants, and we therefore further modify the order accordingly. Defendants established thatthey exercised no control over the manner or method of plaintiff's work (see Comes v NewYork State Elec. & Gas Corp., 82 NY2d 876, 877-878 [1993]) and that they had no controlover the premises, i.e., the floor decking (see Scarupa v Lockport Energy Assoc., 245AD2d 1038 [1997]), and plaintiffs failed to raise an issue of fact. Finally, we reject thecontention of Ciminelli that it was a construction manager without supervision or control of thework and thus that it was not an owner, contractor, or an agent for purposes of liability underLabor Law § 240 (1) and § 241 (6). "An entity is a contractor within the meaning ofLabor Law § 240 (1) and § 241 (6) if it had the power to enforce safety standardsand choose responsible subcontractors" (Outwater v Ballister, 253 AD2d 902, 904[1998]), and an entity is a general contractor if, in addition thereto, " 'it was responsible forcoordinating and supervising the . . . project' " (Bagshaw v Network Serv. Mgt., 4 AD3d 831, 833 [2004]). Inaddition, "[t]he entity's right to exercise control over the work denotes its status as a contractor,regardless of whether it actually exercised that right" (Milanese v Kellerman, 41 AD3d 1058, 1061 [2007]). In accordancewith the well-established principles of contract construction (see generally Village ofHamburg v American Ref-Fuel Co. of Niagara, 284 AD2d 85, 89 [2001], lv denied97 NY2d 603 [2001]), we conclude as a matter of law that Ciminelli had the contractualauthority to enforce safety standards and to hire responsible contractors, and that Ciminelli wasalso responsible for coordinating and supervising the project. We thus conclude as a matter oflaw that Ciminelli is an entity subject to liability under Labor Law § 240 (1) and §241 (6). Present—Hurlbutt, J.P., Martoche, Smith, Lunn and Peradotto, JJ.