| Bowles v Clean Harbors Envtl. Servs., Inc. |
| 2010 NY Slip Op 03016 [72 AD3d 1307] |
| April 15, 2010 |
| Appellate Division, Third Department |
| Charles J. Bowles et al., Appellants, v Clean HarborsEnvironmental Services, Inc., Respondent. |
—[*1] Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany (Leah W. Casey ofcounsel), for respondent.
Cardona, P.J. Appeal from an order of the Supreme Court (Caruso, J.), entered February 25,2009 in Schenectady County, which, among other things, granted defendant's motion forsummary judgment dismissing the complaint.
Schenectady International, Inc. hired defendant to clean certain on-site bulk chemical storagetanks located at one of its facilities in the City of Schenectady, Schenectady County. Pursuant toSchenectady International's safety policies, defendant could not enter or begin cleaning any tankuntil Schenectady International inspected the air quality in the particular tank and issued aconfined space permit.
During the course of the cleaning operation, plaintiff Charles J. Bowles (hereinafterplaintiff), a safety technician employed by Schenectady International, was informed thatdefendant was ready to begin cleaning a certain tank and that a confined space permit wasneeded. In order to reach the opening at the top of the tank, plaintiff used a fiberglass ladder that[*2]had been propped against that tank[FN*]instead of using the ladder affixed to the tank. According to plaintiff, as he reached over to placea meter on the top of the tank, the fiberglass ladder "kicked out" from under him and he fellapproximately 10 feet to the floor, sustaining serious injuries.
Plaintiff and his wife, derivatively, commenced this action against defendant allegingcommon-law negligence and violations of Labor Law §§ 200, 240 (1) and §241 (6). Following joinder of issue and discovery, defendant moved for summary judgmentdismissing the complaint. Plaintiffs opposed the motion and cross-moved for partial summaryjudgment with respect to their Labor Law § 240 (1) claim. Supreme Court dismissed thecomplaint, finding that defendant had no authority to supervise or control plaintiff's work and,therefore, could not, as a matter of law, be liable under any theory asserted by plaintiffs.
Initially, we find no error in the dismissal of plaintiffs' Labor Law § 240 (1) and§ 241 (6) causes of action. In order to be liable under either section, a defendant must bethe owner, owner's agent or a contractor (see Labor Law §§ 240, 241). Tobe found liable as a contractor, a defendant must have been granted the power to enforce safetystandards and hire subcontractors (seeMilanese v Kellerman, 41 AD3d 1058, 1061 [2007]). Liability premised on a defendantacting as an owner's agent requires that the defendant have authority to supervise and control theactivity which brought about the injury (see Walls v Turner Constr. Co., 4 NY3d 861, 864 [2005]; Kindlon v Schoharie Cent. SchoolDist., 66 AD3d 1200, 1201 [2009]).
Here, defendant was hired for the limited purpose of cleaning the tanks. Although defendanthad supervisory control over its employees and the manner and method it used to clean the tanks,it could not enter or commence cleaning the tanks until Schenectady International issued aconfined space permit. In that regard, Schenectady International required that its safetydepartment personnel, in accordance with its rules and regulations, initially inspect, among otherthings, the air quality of the tank and issue a confined space permit prior to defendant entering orcleaning the tank. The deposition testimony established that defendant had no authority tocontrol the manner in which Schenectady International performed its confined space inspectionnor could defendant enforce safety standards in connection therewith. Rather, plaintiff'sdeposition testimony established that Schenectady International had the authority to enforcesafety standards upon defendant. Inasmuch as the record unequivocally demonstrates thatSchenectady International retained control over the manner in which the confined spaceinspection was conducted, defendant cannot be considered a contractor or an owner's agent toimpose liability pursuant to Labor Law §§ 240 and 241.
Similarly, plaintiffs' common-law negligence and Labor Law § 200 claims, premisedupon their contention that defendant had a duty to maintain a safe work site, were also properlydismissed. As noted above, defendant was neither an owner nor contractor and had nosupervisory control over plaintiff's inspection of the tanks (see Russin v Louis N. Picciano &Son, 54 NY2d 311, 317 [1981]; Rice v City of Cortland, 262 AD2d 770, 772-773[1999]).
In view of the foregoing, we need not address plaintiffs' remaining contentions.[*3]
Lahtinen, Malone Jr., Stein and Garry, JJ., concur.Ordered that the order is affirmed, with costs.
Footnote *: Defendant's supervisor admittedin his deposition that he noticed the fiberglass ladder—the ownership of which was neverdetermined—lying on the floor and propped it against the tank in order to eliminate atripping hazard.