| Martinez v Tambe Elec., Inc. |
| 2010 NY Slip Op 01162 [70 AD3d 1376] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| John K. Martinez, Respondent, v Tambe Electric, Inc., Appellant,and Rochester Institute of Technology et al., Respondents. Rochester Institute of Technology etal., Third-Party Plaintiffs, v Betlem Service Corporation, Third-PartyDefendant-Respondent. |
—[*1] Cellino & Barnes, P.C., Rochester (James E. Maslyn of counsel), for plaintiff-respondent. Law Offices of Douglas Coppola, Buffalo (William K. Kennedy of counsel), for third-partydefendant-respondent.
Appeal from an order of the Supreme Court, Monroe County (Matthew A. Rosenbaum, J.),entered January 15, 2009 in a personal injury action. The order, insofar as appealed from, deniedthe motion of defendant Tambe Electric, Inc. for summary judgment and granted that part of thecross motion of third-party defendant for leave to amend its answer.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this Labor Law and common-law negligence actionseeking damages for injuries he allegedly sustained when he received an electrical shock and fellfrom a ladder at a construction site owned by defendant/third-party plaintiff Rochester Instituteof Technology. Defendant Tambe Electric, Inc. (Tambe), the electrical subcontractor at the site,contends that Supreme Court erred in denying its motion for summary judgment dismissing thecomplaint against it and in granting that part of the cross motion of third-party defendant,plaintiff's employer, for leave to amend its answer to the third-party complaint to assert a crossclaim for indemnification and/or contribution [*2]against Tambe.We affirm.
Contrary to the contention of Tambe, the court properly denied those parts of its motion withrespect to the Labor Law § 240 (1) and § 241 (6) causes of action against it. Tambefailed to establish as a matter of law that it was not an agent of the general contractor withrespect to the work that resulted in plaintiff's injuries. "A subcontractor such as [Tambe] will beliable as an agent of the general contractor for injuries sustained in those areas and activitieswithin the scope of the work delegated to it . . . Plaintiff['s] theory of liability inthis case is based on a defective condition of the premises rather than the manner of the work. . . [, and Tambe] failed to meet its initial burden of establishing that it did not havesupervision or control of the safety of the area involved in the incident . . . Pursuantto its [sub]contract with [the general contractor, Tambe] was responsible for the [temporarywiring] and for the safety of its work and the work area" (Piazza v Frank L. Ciminelli Constr. Co., Inc., 12 AD3d 1059,1060-1061 [2004]; see Musillo v Marist Coll., 306 AD2d 782, 783-784 [2003]; cf.Rice v City of Cortland, 262 AD2d 770, 771-772 [1999]).
Contrary to the further contention of Tambe, the court properly denied those parts of itsmotion with respect to the common-law negligence and Labor Law § 200 causes of actionagainst it. "In determining [the] potential liability [of an owner or its agent] under the commonlaw or the statute, we must recognize the distinction between those cases in which the injury wascaused by the defective condition of the premises and those in which the injury was the result ofa defect not in the land itself but in the equipment or its operation . . . In the lattercase, defendant is not liable because [it] exercised no supervisory control over theinjury-producing work" (Farrell v Okeic, 266 AD2d 892, 893 [1999] [internal quotationmarks omitted]). As previously noted, however, plaintiff alleges that his injury was caused bythe defective condition of the premises, and Tambe "failed to meet [its] burden of establishingthat [it] did not breach [its] duty 'to take reasonable care and prudence in securing the safety ofthe work area' " (id.). "An implicit precondition to this duty to provide a safe place towork is that the party charged with that responsibility have the authority to control the activitybringing about the injury to enable it to avoid or correct an unsafe condition" (Russin v LouisN. Picciano & Son, 54 NY2d 311, 317 [1981]). Here, the subcontract agreement betweenTambe and the general contractor, submitted by Tambe in support of its motion, establishes thatit contractually assumed responsibility for the safety of the temporary wiring.
We have considered Tambe's remaining contention and conclude that it is without merit.Present—Scudder, P.J., Smith, Fahey and Lindley, JJ.