| Tomyuk v Junefield Assoc. |
| 2008 NY Slip Op 09586 [57 AD3d 518] |
| December 2, 2008 |
| Appellate Division, Second Department |
| Mykaylo Tomyuk, Respondent, v Junefield Assoc. et al.,Appellants, et al., Defendant. |
—[*1] Craig P. Curcio, Middletown, N.Y. (Timothy P. Blum of counsel), for appellant HomeImprovement Building Management, Inc. MacCartney, MacCartney, Kerrigan & MacCartney, Nyack, N.Y. (Harold Y. MacCartney, Jr.,of counsel), for appellants John Klocek, doing business as Granja, Inc., and D & T Carpentry Corp. Fellows, Hymowitz & Epstein, New City, N.Y. (Steven R. Hymowitz of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant Junefield Assoc. appeals, aslimited by its brief, from so much of an order of the Supreme Court, Rockland County (Garvey, J.),entered October 5, 2007, as denied those branches of its motion which were for summary judgmentdismissing the causes of action to recover damages for common-law negligence and violation of LaborLaw §§ 200, 240 (1) and § 241 (6) insofar as asserted against it, and granted thatbranch of the plaintiff's cross motion which was for summary judgment on the issue of liability on thecause of action pursuant to Labor Law § 240 (1) insofar as asserted against it, the defendantHome Improvement Building Management, Inc., separately appeals, as limited by its brief, from somuch of the same order as denied those branches of its separate motion which were for summaryjudgment dismissing the causes of action to recover damages for [*2]common-law negligence and violation of Labor Law §§200, 240 (1) and § 241 (6) insofar as asserted against it, and granted that branch of the plaintiff'scross motion which was for summary judgment on the issue of liability on the cause of action pursuantto Labor Law § 240 (1) insofar as asserted against it, and the defendants John Klocek, doingbusiness as Granja, Inc., and D & T Carpentry Corp. separately appeal, as limited by their brief, fromso much of the same order as denied their separate motion for summary judgment dismissing thecomplaint insofar as asserted against them.
Ordered that the order is modified, on the law, by deleting the provision thereof denying the motionof the defendants John Klocek, doing business as Granja, Inc., and D & T Carpentry Corp. forsummary judgment dismissing the complaint insofar as asserted against them and substituting therefor aprovision granting that motion; as so modified, the order is affirmed insofar as appealed from, with onebill of costs to the defendants John Klocek, doing business as Granja, Inc., and D & T CarpentryCorp. payable by the plaintiff, and one bill of costs to the plaintiff payable by the defendants JunefieldAssoc. and Home Improvement Building Management, Inc.
The plaintiff allegedly was injured when he fell from a wooden scaffold while working on theconstruction of a single-family home. The plaintiff's employer V & J Construction had been hired by thedefendant Home Improvement Management, Inc. (hereinafter Home Improvement), to install theroofing material. Home Improvement, as the prime contractor for the exterior of the house, had alsohired the defendant John Klocek, doing business as Granja, Inc., and D & T Carpentry Corp.(hereinafter together Klocek) to frame the house. The defendant Junefield Assoc. (hereinafter Junefield)had been hired by the owner of the property to serve as the construction manager of the project.
The plaintiff commenced this action against the owner, Junefield, Home Improvement, and Klocek,alleging causes of action sounding in common-law negligence, violation of Labor Law §§200, 240 (1) and § 241 (6), and strict products liability. Junefield, Home Improvement, andKlocek each moved for summary judgment dismissing the complaint insofar as asserted against each ofthem, and the plaintiff cross-moved for summary judgment on the issue of liability on its Labor Law§ 240 (1) causes of action insofar as asserted against Junefield and Home Improvement. In aprior order, the Supreme Court granted the owner's motion for summary judgment dismissing thecomplaint insofar as asserted against it based upon the homeowner's exemption, and none of the partiesappealed from that order. In the order appealed from, the Supreme Court granted those branches ofthe separate motions of Junefield and Home Improvement which were for summary judgmentdismissing the strict products liability cause of action insofar as asserted against each of them, deniedthose branches of their separate motions which were for summary judgment dismissing thecommon-law negligence and Labor Law §§ 200, 240 (1) and § 241 (6) causes ofaction insofar as asserted against each of them, and granted the plaintiff's cross motion for summaryjudgment on the issue of liability on its Labor Law § 240 (1) cause of action insofar as assertedagainst those defendants. The Supreme Court denied Klocek's motion for summary judgment in itsentirety.
Contrary to Junefield's contention, the Supreme Court properly found that it was liable for theplaintiff's injuries under Labor Law § 240 (1). Although a construction manager is generally notresponsible for injuries under Labor Law § 240 (1), it may be held vicariously liable as an agentof the property owner if it had the ability to control the activity which brought about the injury (see Walls v Turner Constr. Co., 4 NY3d861, 863-864 [2005]; Pino v IrvingtonUnion Free School Dist., 43 AD3d 1130, 1131 [2007]). Here, Junefield had the ability tocontrol that activity since, pursuant to its contract with the owner, it was [*3]responsible for assuring the satisfactory performance of the tradecontractors, there was no general contractor, and it assigned one of its employees as a project managerto work at the job site every day (see Lodatov Greyhawk N. Am., LLC, 39 AD3d 491 [2007]).
Additionally, Home Improvement, as the prime contractor for the exterior of the house, is liableunder Labor Law § 240 (1) as a statutory agent of the owner, since it had the authority tosupervise and control the particular work in which the plaintiff was engaged at the time of his injury(see Russin v Louis N. Picciano & Son, 54 NY2d 311, 318 [1981]; Coque v Wildflower Estates Devs., Inc., 31AD3d 484, 488 [2006]; Kwoksze Wong v New York Times Co., 297 AD2d 544[2002]). Once Home Improvement became an agent of the owner, it could not escape liability bydelegating its work to another entity (seeNasuro v PI Assoc., LLC, 49 AD3d 829 [2008]; McGlynn v BrooklynHosp.-Caledonian Hosp., 209 AD2d 486 [1994]).
Further, because Junefield and Home Improvement were delegated the authority to supervise andcontrol the work at the site, they are liable for violations of Labor Law § 241 (6) (see Russinv Louis N. Picciano & Son, 54 NY2d at 318; Damiani v Federated Dept. Stores, Inc., 23 AD3d 329 [2005]; Aranda v Park E. Constr., 4 AD3d315 [2004]). The Industrial Code provisions that the plaintiff alleged were violated, 12 NYCRR23-1.7 and 23-5.1, contain specific directives that are sufficient to sustain a cause of action underLabor Law § 241 (6) (see Linkowskiv City of New York, 33 AD3d 971 [2006]; Zervos v City of New York, 8 AD3d 477 [2004]). Accordingly, theSupreme Court properly denied those branches of the separate motions of Junefield and HomeImprovement which were for summary judgment dismissing the Labor Law § 241 (6) cause ofaction insofar as asserted against each of them.
With respect to the common-law negligence and Labor Law § 200 causes of action, neitherJunefield nor Home Improvement was entitled to summary judgment since the accident arose from themeans and methods of the work and there are issues of fact as to whether they had authority tosupervise or control the work (see Ortega vPuccia, 57 AD3d 54 [2008]).
The Supreme Court erred, however, in denying Klocek's motion for summary judgment dismissingthe complaint insofar as asserted against him. A subcontractor may not be held liable under Labor Law§ 200, and may not be held liable, as an agent of the owner or general contractor, under LaborLaw § 240 (1) or § 241 (6), where it does not have authority to supervise or control thework that caused the plaintiff's injury (seeTorres v LPE Land Dev. & Constr., Inc., 54 AD3d 668, 669 [2008]). Here, it is undisputedthat Klocek had no authority to supervise or control plaintiff's work since the framing was completed atleast four months before the plaintiff began the roofing job on which he was injured, and Klocek was nolonger at the site.
Even though Klocek did not have authority to supervise or control the plaintiff's work, he could stillbe liable under a common-law theory of negligence for improper installation of the scaffold (see Kelarakos v Massapequa Water Dist.,38 AD3d 717 [2007]; Urbina v 26 Ct.St. Assoc., LLC, 12 AD3d 225 [2004]; Keohane v Littlepark House Corp., 290AD2d 382 [2002]). In support of his motion for summary judgment, Klocek submitted evidence that hecould not have constructed the scaffold from which the plaintiff fell since all of the work for which hewas responsible was undertaken from the interior of the house, he thus did not employ the exteriorwooden scaffolding from which the plaintiff fell, and he used only metal scaffolding to set the ridge beamon the third floor. The plaintiff's claim that Klocek constructed the wooden scaffold [*4]from which he fell was unsubstantiated, speculative, and insufficient todefeat Klocek's summary judgment motion (see Friedenreich v Roosevelt Field Mall Mgt., 18 AD3d 808 [2005]; Sewell v City of N.Y. Tr. Auth., 11 AD3d600 [2004]).
Finally, the Supreme Court should have granted the unopposed branch of Klocek's motion whichwas for summary judgment dismissing the strict products liability cause of action insofar as assertedagainst him. Ritter, J.P., Florio, Miller and Dillon, JJ., concur.