| Kindlon v Schoharie Cent. School Dist. |
| 2009 NY Slip Op 07555 [66 AD3d 1200] |
| October 22, 2009 |
| Appellate Division, Third Department |
| Kenneth T. Kindlon, Appellant-Respondent, v Schoharie CentralSchool District, Respondents-Appellants, and Bovis Lend Lease LMB, Inc.,Respondent. |
—[*1] Law Firm of Frank Miller, East Syracuse (Frank W. Miller of counsel), forrespondents-appellants. Harris Beach, P.L.L.C., Albany (Mark J. McCarthy of counsel), for respondent.
Kane, J. Cross appeals from an order of the Supreme Court (Devine, J.), entered January 12,2009 in Schoharie County, which, among other things, denied plaintiff's motion for partialsummary judgment.
Plaintiff's employer was a subcontractor responsible for removing part of the roof on aschool building undergoing renovations. While plaintiff was walking on a portion of the roofwhere the rubber and insulation had been removed, leaving only gypsum board and metal joists,the gypsum board beneath him gave way, causing him to fall at least 10 feet to the floor of theroom below. To recover for injuries he sustained in his fall, plaintiff commenced this actionagainst defendant Schoharie Central School District, the owner of the building, defendantLeChase Construction Services, LLC, the general contractor for the construction project, and[*2]defendant Bovis Lend Lease LMB, Inc., the constructionmanager for the project. The action alleged violations of Labor Law §§ 200, 240 (1)and § 241 (6), as well as common-law negligence.
Plaintiff moved for partial summary judgment against all defendants on the issue of liabilityunder Labor Law § 240 (1). Defendants cross-moved for partial summary judgment intheir favor on the same issue. Supreme Court denied plaintiff's motion and the cross motion byLeChase and the school district, but granted Bovis's cross motion. Plaintiff appeals and LeChaseand the school district cross-appeal.
Supreme Court properly granted partial summary judgment in favor of Bovis. A constructionmanager is not liable under Labor Law § 240 (1), as an agent of the owner, unless themanager has the authority to direct, supervise or control the work which brought about the injury(see Walls v Turner Constr. Co., 4NY3d 861, 863-864 [2005]; Falsitta v Metropolitan Life Ins. Co., 279 AD2d 879,880-881 [2001]). Bovis did not have such authority. The contract between Bovis and the schooldistrict states that "[Bovis] shall not have control over or charge of and shall not be responsiblefor construction means, methods, techniques, sequences or procedures, or for safety precautionsand programs in connection with the Work of each of the Contractors, since these are solely theContractors's responsibility." While Bovis's superintendent for this project testified in hisdeposition that he had the authority to stop or change unsafe work conditions that he observed,he also testified that his means of doing so was to contact the prime contractor for the work atissue. Thus, the only way for Bovis to correct safety violations was to inform the primecontractor, who would then address the problem; Bovis could not itself direct or control safetymatters or the work which could lead to injury. Based on the superintendent's testimony and thecontract language, Bovis lacked the authority necessary to render it liable under Labor Law§ 240 (1) (compare Falsitta v Metropolitan Life Ins. Co., 279 AD2d at 880-881).Hence, Bovis was entitled to summary judgment dismissing plaintiff's cause of action against itunder that statute.
Plaintiff was entitled to summary judgment against the school district and LeChase on theissue of liability under Labor Law § 240 (1). To establish liability, plaintiff was requiredto prove that the owner and general contractor violated the statute and that the violation was aproximate cause of the accident (seeBlake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287 [2003]; Striegelv Hillcrest Hgts. Dev. Corp., 100 NY2d 974, 977 [2003]; Cody v State of New York, 52 AD3d 930, 931 [2008]). Thecollapse of the work site itself, even if it is part of a permanent structure, will constitute a primafacie violation of the statute, especially if the structure being worked upon is acting as the "'functional equivalent of a scaffold' " (Beard v State of New York, 25 AD3d 989, 991 [2006], quotingCraft v Clark Trading Corp., 257 AD2d 886, 888 [1999]; see Bradford v State of New York, 17AD3d 995, 997 [2005]; but seeJones v 414 Equities LLC, 57 AD3d 65, 79 [2008]).
Here, the only safety device provided was a line with flags around the perimeter of the roofand a monitor on the ground to warn workers who got too close to the edge. This system wasmeant to protect workers from falling over the edge of the roof; it did not provide any protectionfrom the hazard of falling through the roof itself or holes cut in the roof (compare Dalaba v City ofSchenectady, 61 AD3d 1151, 1152 [2009]). No safety devices were provided to guardagainst those hazards. Because workers here were engaged in demolishing a portion of the roofand had already altered the portion of the roof on which they were walking by removing therubber and insulation layers, the school district and LeChase were required to provide safety[*3]devices to protect workers from elevation-related hazards (see Mihelis v i.park Lake Success,LLC, 56 AD3d 355, 356 [2008]; Melson v Sebastiano, 32 AD3d 1259, 1261 [2006]; Sergeant vMurphy Family Trust, 284 AD2d 991, 992 [2001]; see also Yost v Quartararo, 64 AD3d 1073, 1074-1075[2009]).[FN*] Plaintiff was not required to prove what safety devices would have prevented the accident(see Cody v State of New York, 52 AD3d at 931). Plaintiff's proof of the lack of safetydevices, along with the collapse of the roof that was supporting his weight, established a primafacie violation of Labor Law § 240 (1). In view of the statutory violation, the evidencecould not support a finding that plaintiff's own actions or those of his employer were the soleproximate cause of his injuries (see Sergeant v Murphy Family Trust, 284 AD2d at 992;see also Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d at 290).
The school district and LeChase failed to raise triable issues of fact controverting theirliability. While LeChase's superintendent for this project averred that certain safety deviceswould not have prevented plaintiff's injuries, the superintendent did not prove his assertions.Thus, plaintiff was entitled to summary judgment against the owner and contractor on the issueof liability under Labor Law § 240 (1).
Peters, J.P., Rose, Lahtinen and Malone Jr., JJ., concur. Ordered that the order is modified,on the law, without costs, by reversing so much thereof as denied plaintiff's motion for partialsummary judgment against defendants LeChase Construction Services, LLC and SchoharieCentral School District; motion granted to that extent and summary judgment awarded toplaintiff against said defendants on the Labor Law § 240 (1) cause of action; and, as somodified, affirmed.
Footnote *: D'Egidio v Frontier Ins.Co. (270 AD2d 763 [2000]), relied upon by defendants, is inapposite. There, Labor Law§ 240 (1) did not apply because the plaintiff's work site was a nonelevated floor, which didnot require elevation-related safety devices (id. at 765-766).