| Voultepsis v Gumley-Haft-Klierer, Inc. |
| 2009 NY Slip Op 01919 [60 AD3d 524] |
| March 19, 2009 |
| Appellate Division, First Department |
| Gerasimos Voultepsis et al.,Respondents-Appellants, v Gumley-Haft-Klierer, Inc., Defendant, and Gumley-HaftLLC, Appellant-Respondent. |
—[*1] Kelner and Kelner, New York (Gail S. Kelner of counsel), forrespondents-appellants.
Order, Supreme Court, New York County (Joan Madden, J.), entered July 14, 2008, whichdenied defendant-appellant's motion for summary judgment dismissing the complaint, anddenied plaintiffs' motion for partial summary judgment on the issue of liability on their claimunder Labor Law § 240 (1), to strike appellant's affirmative defense based on the Workers'Compensation Law, and to strike appellant's answer as a sanction for spoliation of evidence,unanimously modified, on the law, plaintiffs' motion granted solely to the extent of strikingappellant's affirmative defense based on the Workers' Compensation Law, and otherwiseaffirmed, without costs.
This action arises out of an accident in a cooperative apartment building, where plaintiff wasthe superintendent, his employer was the cooperative corporation, and appellant was thebuilding's managing agent pursuant to an agreement with the cooperative corporation. Plaintiffwas injured when, while replacing a wooden floor in the building's subbasement, the ladder hewas using slid, causing him to fall to the ground.
On plaintiffs' claim under Labor Law § 240 (1), appellant can be held liable only if itwas a "statutory agent" of the owner. Statutory agency turns on the authority to supervise andcontrol the employee (see Fox v Brozman-Archer Realty Servs., 266 AD2d 97, 98-99[1999]), and "[o]nly upon obtaining the authority to supervise and control does the third partyfall within the class of those having nondelegable liability as an 'agent' under sections 240 and241" (Russin v Louis N. Picciano & Son, 54 NY2d 311, 318 [1981]). Here, the motioncourt properly contrasted evidence that appellant was responsible for overseeing such specialprojects as the floor replacement, and that its employee assigned to manage the building had arole in ensuring that such projects were done safely, with proof that such authority was limited.Accordingly, there are questions of fact as to the "scope" of appellant's "oversight and control ofthe work" for statutory agency purposes (see Aponte v City of New York, 55 AD3d 485 [2008]). The recordalso presents triable issues regarding plaintiffs' claim under Labor Law § 200, both as towhether appellant had the authority to control the activity that brought about plaintiff's alleged[*2]injury, and as to whether appellant had actual or constructivenotice of the alleged dangerous condition (see e.g. Fresco v 157 E. 72nd St. Condominium, 2 AD3d 326, 328[2003], lv dismissed 3 NY3d 630 [2004]).
The Workers' Compensation Law defense, however, turns on the actual exercise by thedefendant of authority to control plaintiff employee's work (see Fox, 266 AD2d at 99).The putative special employer must demonstrate that its actual working relationship withplaintiff employee allowed it to control and direct "the manner, details and ultimate result of"plaintiff's work, and determine "all essential, locational and commonly recognizablecomponents" of that work (Bautista vDavid Frankel Realty, Inc., 54 AD3d 549, 550 [2008] [internal quotation marks andcitations omitted]). Here, appellant essentially concedes that it lacked the required level ofcontrol, and the record fails to raise any question of fact on the point.
Denial of plaintiffs' motion to strike appellant's answer as a sanction for spoliation ofevidence was a provident exercise of discretion, where appellant explained that it searched forthe requested documents and could not find them (see Positive Influence Fashions, Inc. v Seneca Ins. Co., 43 AD3d796 [2007]; Diaz v Rose, 40AD3d 429, 430 [2007]). Concur—Tom, J.P., Saxe, Sweeny and Freedman, JJ.[See 2008 NY Slip Op 31964(U).]