| Rodriguez v JMB Architecture, LLC |
| 2011 NY Slip Op 01990 [82 AD3d 949] |
| March 15, 2011 |
| Appellate Division, Second Department |
| Noe Rodriguez et al., Appellants, v JMB Architecture,LLC, Respondent. Builders Choice Concrete Corp., Fourth Third-Party Defendant/FifthThird-Party Plaintiff. (And Other Third-Party Actions.) |
—[*1] Milber Makris Plousadis & Seiden, LLP, Woodbury, N.Y. (Joseph V. Cambareri of counsel),for respondent. O'Connor, O'Connor Hintz & Deveney, LLP, Melville, N.Y. (Eileen M. Baumgartner ofcounsel), for fourth third-party defendant/fifth third-party plaintiff.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Suffolk County (Molia, J.), datedFebruary 1, 2010, as granted that branch of the motion of the defendant JMB Architecture, LLC,which was for summary judgment dismissing the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs to the respondent.
The plaintiff Noe Rodriguez (hereinafter the injured plaintiff) allegedly was injured whensomething hit his eye while he was working on the construction of a private residence owned byJoseph Direnzo and Angela Direnzo (hereinafter together the Direnzos). The injured plaintiff'semployer, Builders Choice Concrete Corp. (hereinafter Builders Choice), had been hired by theDirenzos to construct a concrete foundation for the residence. The defendant JMB Architecture,LLC (hereinafter JMB), served as the construction manager pursuant to a contract between it andthe Direnzos.
After commencing this action against the Direnzos, the plaintiffs moved for leave to amendthe complaint to name JMB as a defendant. The Supreme Court granted that motion by orderdated November 10, 2009, which was affirmed on a prior appeal to this Court (see Rodriguez v Paramount Dev. Assoc.,LLC, 67 AD3d 767 [2009]). The amended complaint alleged causes of action againstJMB sounding in common-law negligence, and alleging violations of Labor Law §§200 and 241 (6). Thereafter, the caption was amended to eliminate the Direnzos as nameddefendants. JMB moved, inter alia, for summary judgment dismissing the complaint. TheSupreme Court granted that [*2]branch of JMB's motion, and theplaintiffs appeal.
The Supreme Court properly granted that branch of JMB's motion which was for summaryjudgment dismissing the complaint. Although a construction manager is generally not considereda contractor responsible for the safety of the workers at a construction site pursuant to Labor Law§§ 200 and 241 (6), it may nonetheless become responsible if it has been delegatedthe authority and duties of a general contractor, or if it functions as an agent of the owner of thepremises (see Walls v Turner Constr.Co., 4 NY3d 861 [2005]; Russin v Louis N. Picciano & Son, 54 NY2d 311,317-318 [1981]; see also Comes v New York State Elec. & Gas Corp., 82 NY2d 876,878 [1993]; Pino v Irvington Union FreeSchool Dist., 43 AD3d 1130 [2007]). "A party is deemed to be an agent of an owner orgeneral contractor under the Labor Law when it has supervisory control and authority over thework being done where a plaintiff is injured" (Linkowski v City of New York, 33 AD3d 971, 974-975 [2006];see Walls v Turner Constr. Co., 4 NY3d at 863-864; Russin v Louis N. Picciano &Son, 54 NY2d at 317-318). To impose such liability, the defendant must have the authorityto supervise or control the activity bringing about the injury so as to enable it to avoid or correctthe unsafe condition (see Linkowski vCity of New York, 33 AD3d 971 [2006]; Damiani v Federated Dept. Stores, Inc., 23 AD3d 329, 331-332[2005]). It is not a defendant's title that is determinative, but the degree of control or supervisionexercised (see generally Aranda v ParkE. Constr., 4 AD3d 315, 316 [2004]; see also Armentano v Broadway Mall Props., Inc., 30 AD3d 450[2006]; Loiacono v Lehrer McGovern Bovis, 270 AD2d 464 [2000]).
In opposition to JMB's prima facie showing of entitlement to judgment as a matter of law,the plaintiffs failed to raise a triable issue of fact as to whether JMB was an agent of the ownersor a general contractor on the project (see Russin v Louis N. Picciano & Son, 54 NY2d311 [1981]; Delahaye v Saint AnnsSchool, 40 AD3d 679 [2007]). The role of JMB was only one of general supervision,which is insufficient to impose liability under the Labor Law (see Armentano v Broadway Mall Props., Inc., 30 AD3d 450[2006]; Loiacono v Lehrer McGovern Bovis, 270 AD2d 464 [2000]). Paragraph 2.3.15 ofthe agreement between JMB and the Direnzos provided that "the Construction Manager shall nothave control over or charge of and shall not be responsible for construction means, methods,techniques, sequences or procedures, or for safety precautions and programs in connection withthe Work of each of the Contractors, since these are solely the Contractor's responsibility" (see Delahaye v Saint Anns School, 40AD3d 679 [2007]; Bateman v Walbridge Aldinger Co., 299 AD2d 834 [2002]; cf. Tomyuk v Junefield Assoc., 57AD3d 518 [2008]). Further, the president of Builders Choice, the injured plaintiff'semployer, testified at his deposition that no one from JMB told his employees what to do whilethey were on the job, and the injured plaintiff testified at his deposition that he never heard ofJMB and had never received instructions on how to do his job from anyone other than theforeperson employed by Builders Choice. Similarly, no evidence was submitted demonstratingthat JMB had any control or supervisory role over the work of the injured plaintiff, so as toenable it to prevent or correct any unsafe conditions and, thus, no triable issues of fact wereraised as to JMB's liability (seeLinkowski v City of New York, 33 AD3d 971 [2006]; Singh v Black Diamonds LLC, 24AD3d 138, 139-140 [2005]; Loiacono v Lehrer McGovern Bovis, 270 AD2d 464[2000]).
The plaintiffs' remaining contentions are without merit. Mastro, J.P., Skelos, Eng and Sgroi,JJ., concur.