| Bakhtadze v Riddle |
| 2008 NY Slip Op 09012 [56 AD3d 589] |
| November 18, 2008 |
| Appellate Division, Second Department |
| Giorgi Bakhtadze, Respondent, v Robert W. Riddle et al.,Defendants, JN Contracting, Inc., Appellant, and Seventin Construction Corp.,Respondent. |
—[*1] Dinkes & Schwitzer, New York, N.Y. (Beth Diamond, Christian R. Oliver, and Raymond J.Mollica of counsel), for plaintiff-respondent.
In an action to recover damages for personal injuries, the defendant JNM Contracting, Inc.,sued herein as JN Contracting, Inc., appeals from so much of an order of the Supreme Court,Richmond County (Gigante, J.), dated June 26, 2007, as granted the plaintiff's motion forsummary judgment on the issue of liability on the cause of action to recover damages forviolation of Labor Law § 240 (1) insofar as asserted against it, and denied its cross motionfor summary judgment dismissing the complaint and all cross claims insofar as asserted againstit.
Ordered that the order is affirmed insofar as appealed from, with costs to theplaintiff-respondent.
The plaintiff was helping to install a roof when he slipped and fell, sustaining personalinjuries. He commenced the instant action to recover damages pursuant to Labor Law§§ 200, 240 (1) and § 241 (6), and for common-law negligence for the injurieshe sustained in the accident [*2]against, among others, SeventinConstruction Corp. (hereinafter Seventin), as owner and general contractor, and Seventin'ssubcontractor JNM Contracting, Inc., sued herein as JN Contracting, Inc. (hereinafter JNM). Theplaintiff was employed by JNM's subcontractor Adam Sowa.
The plaintiff moved for summary judgment against Seventin and JNM of the issue of liabilityon the causes of action alleging violations of Labor Law § 240 (1) and § 241 (6), andJNM cross-moved for summary judgment dismissing the complaint and all cross claims insofaras asserted against it. The Supreme Court, inter alia, granted that branch of the plaintiff's motionwhich was for summary judgment on the cause of action to recover damages for violation ofLabor Law § 240 (1), and denied JNM's cross motion for summary judgment dismissingthe complaint and all cross claims insofar as asserted against it. We affirm.
To hold JNM liable, as an agent of Seventin, for violations of Labor Law § 240 (1) and§ 241 (6), there must be a showing that it had the authority to supervise and control thework (see Torres v LPE Land Dev. & Constr., Inc., 54 AD3d 668 [2008]; Markey vC.F.M.M. Owners Corp., 51 AD3d 734 [2008]). The determinative factor is whether theparty had "the right to exercise control over the work, not whether it actually exercised that right"(Williams v Dover Home Improvement, 276 AD2d 626, 626 [2000]; see Mulcaire vBuffalo Structural Steel Constr. Corp., 45 AD3d 1426, 1428 [2007]; Pino v IrvingtonUnion Free School Dist., 43 AD3d 1130, 1131 [2007]; Milanese v Kellerman, 41AD3d 1058, 1061 [2007]). Where the owner or general contractor delegates the duty to conformto the principles of the Labor Law to a third party, that third party becomes the statutory agent ofthe owner or general contractor (see Walls v Turner Constr. Co., 4 NY3d 861, 864[2005]).
In the instant case, the president of Seventin testified at his deposition that he relied on JNMto provide any necessary equipment and "do everything that was required to do the roof," andthus delegated the duty to provide proper safety devices to it. JNM's president asked theplaintiff's employer Sowa if he was familiar with Occupation and Safety Hazard Administrationregulations, and acknowledged that he had the power to stop his subcontractors from working ifhe observed unsafe conditions. He testified that it was his "custom and practice to provide safetyfor" customers of JNM, and that was his custom and practice for this job. Thus, the plaintiffestablished as a matter of law that JNM had the authority to supervise and control the work andwas the statutory agent of the owner and general contractor Severtin.
In opposition to the plaintiff's prima facie showing, JNM failed to raise a triable issue of factregarding its supervision and control of the work giving rise to the plaintiff's injuries, whether itviolated Labor Law § 240 (1), and whether its violation was a proximate cause of theplaintiff's injuries. The plaintiff's comparative fault did not constitute a defense (see Bland vManocherian, 66 NY2d 452, 460 [1985]; Pearl v Sam Greco Constr., Inc., 31 AD3d996, 997 [2006]; Montalvo v J. Petrocelli Constr., Inc., 8 AD3d 173, 175 [2004]).
JNM's remaining contentions are without merit. Florio, J.P., Angiolillo, McCarthy andChambers, JJ., concur.