| Weitz v Anzek Constr. Corp. |
| 2009 NY Slip Op 06321 [65 AD3d 678] |
| August 25, 2009 |
| Appellate Division, Second Department |
| Adam Weitz et al., Respondents, v Anzek ConstructionCorporation, Appellant, and Steve & Andy, Inc., et al., Respondents, et al., Defendant. Orangeand Rockland Utilities, Inc., Defendant and Third-Party Plaintiff-Respondent; East RamapoCentral School District, Third-Party Defendant-Respondent. |
—[*1] Kitson & Kitson, LLP, White Plains, N.Y. (James R. Carcano of counsel), forplaintiffs-respondents. Rubin Fiorella & Friedman LLP, New York, N.Y. (Denise A. Palmeri of counsel), fordefendant-respondent Verticon, Ltd. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y.(Gregory A. Cascino of counsel), for third-party defendant-respondent East Ramapo CentralSchool District.
In an action to recover damages for personal injuries, etc., the defendant Anzek ConstructionCorporation appeals from so much of an order of the Supreme Court, Dutchess County (J. Dolan,J.), dated March 14, 2008, as denied those branches of its motion which were for summaryjudgment dismissing the causes of action alleging common-law negligence and violations ofLabor Law §§ 200 and 241 (6) insofar as asserted against it, dismissing the crossclaims against it to recover damages for breach of contract and for contribution and common-lawindemnification, and limiting recovery on the cross claims alleging failure to procure insurance.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable tothe respondents appearing separately and filing separate briefs.
The injured plaintiff is a carpenter who was hired through his union to work at a schoolconstruction project in the East Ramapo Central School District (hereinafter the School District).The general contractor for the project was the defendant Verticon, Ltd. (hereinafter Verticon),and the carpentry subcontractor was the defendant Anzek Construction Corporation. The injuredplaintiff was installing trusses on the dormer of the school building when the six-foot-long metalobject he was holding allegedly came into contact with overhead electrical wires, injuring him.After the accident, the injured plaintiff applied for and obtained workers' compensation benefits,[*2]indicating that Anzek was his employer. However, theinjured plaintiff's wages for the project were actually paid by another corporation, the defendantSteve & Andy, Inc. (hereinafter Steve & Andy), and his W-2 statement listed Steve & Andy ashis employer. After discovery, Anzek moved for summary judgment dismissing the complaintand all cross claims asserted against it. The Supreme Court granted only that branch of Anzek'smotion which was to dismiss the plaintiffs' cause of action alleging violation of Labor Law§ 240 (1). We affirm the order insofar as appealed from.
Contrary to Anzek's contention, the Supreme Court properly concluded that it was notentitled to summary judgment on the ground that it was the injured plaintiff's employer at thetime of the accident. Anzek failed to make a prima facie showing of its entitlement to summaryjudgment because the evidence it submitted in support of the motion, including the depositiontestimony of its president, reveal that there are issues of fact as to the actual identity of theinjured plaintiff's employer, and the nature of the relationship between Anzek and Steve & Andy(see Weitz v Anzek Constr. Corp.,54 AD3d 940, 941 [2008]; Degale-Selier v Preferred Mgt. & Leasing Corp., 57 AD3d 825,826 [2008]; Heras v P.S. 71 Assoc., 286 AD2d 318, 319 [2001]). Furthermore, since theidentity of the injured plaintiff's employer was not a disputed issue in the workers' compensationproceeding, and the Workers' Compensation Board did not specifically adjudicate this issue, theadministrative finding that the injured plaintiff was entitled to recover compensation benefitsfrom Anzek is not conclusive proof that he was employed by that corporation (see Caiola vAllcity Ins. Co., 257 AD2d 586, 587-588 [1999]). Anzek also failed to make a prima facieshowing of its entitlement to summary judgment on the theory that the injured plaintiff was itsspecial employee. A person's status as a special employee may be determined as a matter of lawonly "[w]here the particular, undisputed critical facts compel that conclusion and present notriable issue of fact" (Thompson v Grumman Aerospace Corp., 78 NY2d 553, 558[1991]; see Degale-Selier v Preferred Mgt. & Leasing Corp., 57 AD3d at 826). Anzek'sevidentiary submissions were insufficient to meet this standard (see Degale-Selier vPreferred Mgt. & Leasing Corp., 57 AD3d at 826; Schramm v Cold Spring Harbor Lab., 17 AD3d 661, 662-663[2005]; Small v Winter Bros., 302 AD2d 445, 446 [2003]; see also D'Amato vAccess Mfg., 305 AD2d 447, 448 [2003]).
The court also properly denied those branches of Anzek's motion which were for summaryjudgment dismissing the causes of action alleging common-law negligence and violation ofLabor Law § 200. Labor Law § 200 codifies the common-law duty of an owner orcontractor to provide employees with a safe place to work (see Comes v New York StateElec. & Gas Corp., 82 NY2d 876, 877 [1993]; Aguilera v Pistilli Constr. & Dev. Corp., 63 AD3d 763 [2009]; Peay v New York City School Constr.Auth., 35 AD3d 566, 567 [2006]). Here, the plaintiffs' theory of liability is that Anzek,as agent of the owner and general contractor, failed to take adequate precautions to ensure thatworkers installing trusses on the roof and dormer of the school building did not come indangerously close proximity to the overhead electrical wires. Anzek did not make a prima facieshowing of its entitlement to dismissal of the common-law negligence and Labor Law §200 causes of action because it failed to establish that it lacked the authority to control orsupervise the activity which is alleged to have been a cause of the injury, i.e., the method ofinstalling trusses in the vicinity of live electrical wires (see Domino v Professional Consulting, Inc., 57 AD3d 713, 715[2008]; Tomyuk v Junefield Assoc.,57 AD3d 518, 521 [2008]; Everitt v Nozkowski, 285 AD2d 442, 444 [2001]).Anzek's failure to establish that it did not have the authority to control or supervise the workbeing performed, and thus could not be deemed an agent of the owner or general contractor,similarly warranted the denial of that branch of its motion which was for summary judgmentdismissing the plaintiffs' Labor Law § 241 (6) cause of action (see Russin v Louis N.Picciano & Son, 54 NY2d 311, 317-318 [1981]; Soltes v Brentwood Union Free School Dist., 47 AD3d 804, 805[2008]; Pino v Irvington Union FreeSchool Dist., 43 AD3d 1130, 1131 [2007]).
Furthermore, Anzek failed to make a prima facie showing that it was free from negligence inthe happening of the accident, and thus was not entitled to summary judgment dismissing thecross claims asserted against it for common-law and contractual indemnification (see Coque v Wildflower Estates Devs.,Inc., 31 AD3d 484, 489 [2006]). In addition, Anzek's failure to submit sufficientevidence to demonstrate that it complied with its contractual obligation to procure liabilityinsurance inuring to the benefit of Verticon and the School District required denial of that branchof its motion which was for summary judgment dismissing the cross claims predicated upon[*3]its failure to procure insurance.
In view of our determination that triable issues of fact exist, we need not reach Anzek'sremaining contentions. Fisher, J.P., Dickerson, Eng and Hall, JJ., concur.