| Harris v Hueber-Breuer Constr. Co., Inc. |
| 2009 NY Slip Op 08273 [67 AD3d 1351] |
| November 13, 2009 |
| Appellate Division, Fourth Department |
| Mark Harris, Appellant-Respondent, v Hueber-Breuer ConstructionCo., Inc., Respondent-Appellant, and Colonie Masonry Corp. Of Albany, Inc., et al.,Respondents. |
—[*1] Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (Gabrielle Mardany Hope of counsel), fordefendant-respondent-appellant and defendants-respondents College of the Senecas, HobartCollege, William Smith College and Hobart and William Smith College. Law Offices of Michael M. Emminger, Syracuse (P. David Twichell of counsel), and LawOffice of Andrea G. Sawyers, Melville, for defendant-respondent Colonie Masonry Corp. ofAlbany, Inc.
Appeal and cross appeal from an order of the Supreme Court, Onondaga County (Donald A.Greenwood, J.), entered July 31, 2008 in a personal injury action. The order, among other things,granted in part the motion of defendant Hueber-Breuer Construction Co., Inc. for summaryjudgment and denied plaintiff's cross motion for partial summary judgment.
It is hereby ordered that the order so appealed from is unanimously modified on the law bydenying those parts of the motion of defendant Colonie Masonry Corp. of Albany, Inc. withrespect to the common-law negligence, Labor Law §§ 200, 240 (1) and § 241(6) causes of action insofar as the latter cause of action is based on the alleged violations of 12NYCRR 23-1.7 (f); 23-5.1 (e) (1); and 23-5.3 (f) and reinstating those causes of action to thatextent against that defendant, and by denying those parts of the motion of defendantsHueber-Breuer Construction Co., Inc., College of the Senecas, Hobart College, William SmithCollege and Hobart and William Smith College with respect to the Labor Law § 240 (1)and § 241 (6) causes of action insofar as the latter cause of action is based on the allegedviolations of 12 NYCRR 23-1.7 (f); 23-5.1 (e) (1); and 23-5.3 (f) and reinstating those causes ofaction to that extent against those defendants and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this Labor Law and common-law negligence actionseeking damages for injuries he sustained while working at a construction site. Defendant [*2]Hueber-Breuer Construction Co., Inc. (Hueber) was the generalcontractor on the project, the College defendants owned the building under construction, anddefendant Colonie Masonry Corp. of Albany, Inc. (Colonie) was a masonry subcontractor.Plaintiff was allegedly injured when he attempted to descend a multi-level scaffold from the roofof the building to the ground. According to plaintiff, while descending from one tier of thescaffold to a lower tier to access a building window, he observed that the lower tier was not fullyplanked, and he injured his neck in attempting to prevent himself from falling as he stepped ontothe lower tier.
We agree with plaintiff on his appeal that Supreme Court erred in granting those parts of themotions of defendants seeking summary judgment dismissing the Labor Law § 240 (1)cause of action, and we therefore modify the order accordingly. Defendants' own submissionsraised triable issues of fact whether the injury to plaintiff " 'was proximately caused by thefailure of a safety device to afford him proper protection from an elevation-related risk,' " despitethe fact that he did not fall to the ground (Franklin v Dormitory Auth. of State of N.Y.,291 AD2d 854, 854 [2002]; see also Lacey v Turner Constr. Co., 275 AD2d 734, 735[2000]). The court, however, properly denied plaintiff's cross motion seeking partial summaryjudgment on liability with respect to that cause of action. Although plaintiff established hisentitlement to judgment as a matter of law with respect thereto, we conclude that defendantsraised triable issues of fact whether safe alternative means of descending from the roof wereavailable to plaintiff and whether his failure to use those alternative means was the soleproximate cause of his injury (seeMontgomery v Federal Express Corp., 4 NY3d 805 [2005]; cf. Willard v Thomas Simone & SonBldrs., Inc., 45 AD3d 1276, 1277-1278 [2007]).
We further conclude that the court erred in granting those parts of the motions of defendantsseeking summary judgment dismissing the Labor Law § 241 (6) cause of action insofar asit is based on the alleged violations of 12 NYCRR 23-1.7 (f); 23-5.1 (e) (1); and 23-5.3 (f), andwe therefore further modify the order accordingly. We agree with plaintiff that defendants failedto establish as a matter of law that they did not violate those regulations or that any allegedviolations were not a proximate cause of plaintiff's injuries (see Clapp v State of New York[appeal No. 2], 19 AD3d 1113 [2005]). We agree with the court, however, that 12 NYCRR23-1.7 (b) does not apply to the accident because plaintiff did not fall into a hazardous opening(see Bennion v Goodyear Tire & Rubber Co., 229 AD2d 1003 [1996]).
The court erred in granting those parts of the motion of Colonie seeking summary judgmentdismissing the Labor Law § 240 (1) and § 241 (6) causes of action against it on theadditional ground that Colonie is not subject to the liability under those statutes based on itsstatus as a subcontractor. Colonie failed to meet its initial burden of establishing as a matter oflaw that it was not an agent of Hueber or the Colleges (see Predmore v EJ Constr. Group, Inc., 51 AD3d 1405, 1406[2008], lv dismissed 10 NY3d 952 [2008]). Even assuming, arguendo, that Colonieestablished its entitlement to judgment as a matter of law dismissing those causes of actionagainst it, we conclude that the submissions of plaintiff, Hueber and the College defendants"raise triable issues of fact whether [Colonie] had the authority 'to supervise or control plaintiffor the injury-producing work' " and thus whether Colonie is subject to liability as an agent of theowner or general contractor (Predmore, 51 AD3d at 1406). Based on our determinationherein that the Labor Law § 241 (6) cause of action is viable only to the extent that it isbased on the alleged violations of 12 NYCRR 23-1.7 (f); 23-5.1 (e) (1); and 23-5.3 (f), weconclude that the issues of fact concerning Colonie's liability as an agent with respect to LaborLaw § 241 (6) are limited to the alleged violations of those regulations. The court alsoerred in granting those parts of the motion of Colonie seeking summary judgment dismissing theLabor Law § 200 and common-law negligence causes of action against it, and wetherefore further modify the order accordingly. There are triable issues of fact whether Colonie"possessed the requisite supervisory control over that portion of the work activity bringing aboutthe injury to enable it to [*3]prevent the creation of the unsafecondition or plaintiff's exposure to it" (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343,353 [1998]).
Finally, we reject the contention of Hueber on its cross appeal that the court erred in denyingthat part of its motion seeking summary judgment dismissing the Labor Law § 200 andcommon-law negligence causes of action against it. By its own submissions, Hueber raised atriable issue of fact whether it had supervisory control over plaintiff's work (see Riordan v Robert F. Hyland & Sons,Inc., 43 AD3d 1329 [2007]). Present—Hurlbutt, J.P., Martoche, Centra, Greenand Gorski, JJ.