| Predmore v EJ Constr. Group, Inc. |
| 2008 NY Slip Op 04180 [51 AD3d 1405] |
| May 2, 2008 |
| Appellate Division, Fourth Department |
| Patricia Predmore, Appellant, v EJ Construction Group,Inc., Respondent. |
—[*1] Sugarman Law Firm, LLP, Syracuse (Rebecca A. Crance of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Onondaga County (James P. Murphy, J.),entered September 6, 2007 in a personal injury action. The order, insofar as appealed from,granted in part defendant's motion for summary judgment and denied plaintiff's cross motion forpartial summary judgment on liability.
It is hereby ordered that the order so appealed from is unanimously modified on the law bydenying the motion in its entirety and reinstating the complaint and as modified the order isaffirmed without costs.
Memorandum: Plaintiff commenced this Labor Law and common-law negligence actionseeking damages for injuries she sustained when she was struck by a falling piece of rebar at aconstruction site. We conclude that Supreme Court erred in granting those parts of the motion ofdefendant, the subcontractor hired to perform iron work on the construction project, seekingsummary judgment dismissing the third and fourth causes of action, alleging the violation ofLabor Law § 240 (1) and § 241 (6), and that part of the first cause of action withrespect to those Labor Law sections. We therefore conclude that the court should have denied themotion in its entirety, and we modify the order accordingly. A subcontractor may be held liableunder those sections of the Labor Law where the subcontractor is an agent of the owner orgeneral contractor (see Russin v Louis N. Picciano & Son, 54 NY2d 311, 317-318[1981]), and defendant failed to meet its initial burden of establishing as a matter of law that itwas not an agent of either the owner or the general contractor. Indeed, defendant's submissionsraise triable issues of fact whether defendant had the authority "to supervise or control plaintiff orthe injury-producing work" (Millard vHueber-Breuer Constr. Co., 4 AD3d 817, 818 [2004]; cf. Bateman v WalbridgeAldinger Co., 299 AD2d 834, 835 [2002], lv denied 100 NY2d 502 [2003];Phillips v Wilmorite, Inc., 281 AD2d 945, 946 [2001]). We further conclude that thecourt properly denied that part of plaintiff's cross motion seeking partial summary judgment onliability with respect to Labor Law § 240 (1). Plaintiff failed to meet her initial burdenbecause she submitted only an attorney's affirmation in support of her cross motion and failed toincorporate the exhibits submitted by defendant in support of its motion (see generallyZuckerman v City of New York, 49 NY2d 557, 562 [1980]). Present—Hurlbutt, J.P.,Smith, Fahey, Green and Pine, JJ.