| Domino v Professional Consulting, Inc. |
| 2008 NY Slip Op 09946 [57 AD3d 713] |
| December 16, 2008 |
| Appellate Division, Second Department |
| Gregory Domino et al., Appellants, v Professional Consulting,Inc., Defendant and Third-Party Plaintiff-Respondent, and Smedley Crance Service, Inc., et al.,Respondent, et al., Third-Party Defendant. |
—[*1] Barry, McTiernan & Moore, White Plains, N.Y. (Laurel A. Wedinger of counsel), for defendantthird-party plaintiff-respondent. Michael Emminger (Carol R. Finocchio, New York, N.Y. [Marie R. Hodukavich and LawrenceB. Goodman], of counsel), for defendant-respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by theirbrief, from so much of an order of the Supreme Court, Dutchess County (Brands, J.), dated May 1,2007, as, upon reargument, granted those branches of the respective motions of the defendantthird-party plaintiff Professional Consulting, Inc., and the defendant Smedley Crane Service, Inc., whichwere for summary judgment dismissing the complaint insofar as asserted against each of them, whichhad previously been denied in an order of the same court dated January 26, 2007.
Ordered that the order is modified, on the law, by deleting the provision thereof which, uponreargument, granted that branch of the motion of the defendant Smedley Crane Service, Inc., whichwas for summary judgment dismissing the complaint insofar as asserted against it and substitutingtherefor a provision adhering to so much of the original determination as denied that [*2]branch of its motion; as so modified, the order is affirmed insofar asappealed from, with one bill of costs payable by the defendant Smedley Crane Service, Inc., to theplaintiffs, and one bill of costs payable by the plaintiffs to the defendant Professional Consulting, Inc.
The plaintiff Gregory Domino allegedly was injured while working as a carpenter on theconstruction of a Village of Mount Kisco water treatment facility. Domino was then employed by thethird-party defendant Carlin Contracting Co., Inc. (hereinafter Carlin). The defendant third-partyplaintiff Professional Consulting, Inc. (hereinafter PCI) served as the construction manager. Dominoallegedly was injured while assisting in the installation of floor panels that were hoisted by a craneowned and operated by the defendant Smedley Crane Service, Inc. (hereinafter Smedley). Dominocommenced this action to recover damages for personal injuries and his wife asserted derivative causesof action.
Upon reargument, the Supreme Court properly granted that branch of the motion of PCI whichwas for summary judgment dismissing the complaint insofar as asserted against it. "Although aconstruction manager is generally not considered a 'contractor' or 'owner' within the meaning of LaborLaw § 240 (1) or § 241, it may nonetheless become responsible for the safety of theworkers at a construction site if it has been delegated the authority and duties of a general contractor,or if it functions as an agent of the owner of the premises" (Pino v Irvington Union Free School Dist., 43 AD3d 1130, 1131 [2007];see Walls v Turner Constr. Co., 4 NY3d861, 863-864 [2005]; Russin v Louis N. Picciano & Son, 54 NY2d 311, 318 [1981]). Aparty is deemed to be an agent of an owner or general contractor under the Labor Law when it has theauthority to control or supervise the work being performed (Borbeck v Hercules Constr. Corp., 48 AD3d 498 [2008]; see Damiani v Federated Dept. Stores, Inc.,23 AD3d 329, 331-332 [2005]). Similarly, a construction manager may not be held liableunder Labor Law § 200 or for common-law negligence where the injuries arise from the mannerin which the work was performed absent evidence that it "had the authority to supervise or control theperformance of the work" (Ortega v Puccia, 57 AD3d 54, 61 [2008]; see Narducci vManhasset Bay Assoc., 96 NY2d 259, 269 [2001]; Delahaye v Saint Anns School, 40 AD3d 679, 684 [2007]).
Here, the contracts between PCI and the Village and between Carlin and the Village specificallyprohibited PCI from supervising the manner or means of the contractors' work or the contractors'safety procedures, and assigned that responsibility solely to the contractors. Thus, PCI established thatit was not delegated the authority and duties of a general contractor, and that it did not function as anagent of the owner of the premises or a general contractor with the authority to control or supervise thework being performed. In response to PCI's prima facie showing, the plaintiff failed to raise a triableissue of fact.
However, the Supreme Court erred in, upon reargument, granting that branch of the motion ofSmedley, the subcontractor, which was for summary judgment dismissing the complaint insofar asasserted against it. In support of its motion, Smedley failed to establish that it lacked the authority tocontrol or supervise the activity which is alleged to have been a cause of the injury, namely, the mannerin which the loads were rigged to the crane (see Miller v Yeshiva Zichron Mayir Gedola, 44 AD3d 1017 [2007];Everitt v Nozkowski, 285 AD2d 442, 444 [2001]; see also Kehoe v Segal, 272AD2d 583, 584 [2000]; Goettelman v Indeck Energy Servs. of Olean, 262 AD2d 958, 959[1999]). Thus, Smedley failed to demonstrate its entitlement to judgment as a matter of law. Florio,J.P., Angiolillo, McCarthy and Dickerson, JJ., concur.