| Herrel v West |
| 2011 NY Slip Op 01973 [82 AD3d 933] |
| March 15, 2011 |
| Appellate Division, Second Department |
| Edward Herrel, Respondent, v Daniel West, Defendant,and Hartland Building and Remodeling Corporation, Appellant. |
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In an action to recover damages for personal injuries, the defendant Hartland Building andRemodeling Corporation appeals, as limited by its brief, from so much of an order of theSupreme Court, Suffolk County (Tanenbaum, J.), dated January 26, 2010, as granted that branchof the plaintiff's motion which was for summary judgment on the causes of action allegingviolations of Labor Law § 240 (1) and § 241 (6) insofar as asserted against it anddenied its cross motion for summary judgment dismissing the complaint insofar as assertedagainst it.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, thatbranch of the plaintiff's motion which was for summary judgment on the causes of actionalleging violations of Labor Law § 240 (1) and § 241 (6) insofar as asserted againstthe defendant Hartland Building and Remodeling Corporation is denied and the cross motion ofthe defendant Hartland Building and Remodeling Corporation for summary judgment dismissingthe complaint insofar as asserted against it is granted.
The plaintiff, a roofer, allegedly was injured when he slipped and fell off of a roof whileworking at a single-family home without any safety equipment. The home was owned byChristine West. The plaintiff subsequently commenced this action against Christine's husband,Daniel West, and Hartland Building and Remodeling Corporation (hereinafter Hartland), acorporation owned by the Wests, alleging violations of Labor Law § 240 (1); § 241(6) and § 200 (1), as well as common-law negligence. The Supreme Court, inter alia,granted that branch of the plaintiff's motion which was for summary judgment on the causes ofaction alleging violations of Labor Law § 240 (1) and § 241 (6) insofar as assertedagainst Hartland, and denied Hartland's cross motion for summary judgment dismissing thecomplaint insofar as asserted against it. We reverse the order insofar as appealed from.
To hold Hartland liable as an agent of the owner for violations of Labor Law § 240 (1)and § 241 (6), there must be a showing that it had the authority to supervise and control thework (see Bakhtadze v Riddle, 56AD3d 589, 590 [2008]; Domino vProfessional Consulting, Inc., 57 AD3d 713, 714-[*2]715 [2008]; Ferrero v Best Modular Homes, Inc., 33 AD3d 847, 850 [2006])."The determinative factor is whether the party had 'the right to exercise control over the work,not whether it actually exercised that right' " (Bakhtadze v Riddle, 56 AD3d at 590,quoting Williams v Dover Home Improvement, 276 AD2d 626, 626 [2000]). Similarly,"[w]hen a claim arises out of alleged defects or dangers in the methods or materials of the work,recovery against the owner or general contractor cannot be had under Labor Law § 200unless it is shown that the party to be charged had the authority to supervise or control theperformance of the work" (McKee vGreat Atl. & Pac. Tea Co., 73 AD3d 872, 874 [2010]). Here, the evidence submitted bythe parties demonstrated that Hartland neither supervised the plaintiff nor controlled his work,nor had the right to supervise or control the work. Further, the plaintiff's employer, WinkielCorporation, had an agreement with Daniel West in his individual capacity and not withHartland, to do roofing work on his wife's home. The plaintiff's employer supplied the equipmentand materials, and instructed the plaintiff as to how to perform his work. Thus, Hartlandestablished, as a matter of law, that it did not have the authority to supervise and control theplaintiff's work and that it was not the agent of the owner Christine West.
In opposition to Hartland's prima facie showing, the plaintiff failed to raise a triable issue offact. Accordingly, the Supreme Court should have denied that branch of the plaintiff's motionwhich was for summary judgment on the causes of action alleging violations of Labor Law§ 240 (1) and § 241 (6) insofar as asserted against Hartland and granted Hartland'scross motion for summary judgment dismissing the complaint insofar as asserted against it.Angiolillo, J.P., Florio, Leventhal and Miller, JJ., concur.