| Gallagher v Resnick |
| 2013 NY Slip Op 04774 [107 AD3d 942] |
| June 26, 2013 |
| Appellate Division, Second Department |
| Philip Gallagher et al.,Respondents-Appellants, v Scott N. Resnick, Defendant, and S. Donadic, Inc., etal., Appellants-Respondents. |
—[*1] White Fleischner & Fino, LLP, New York, N.Y. (Jason S. Steinberg of counsel), forappellant-respondent Coffey Contracting, Inc. Sacks & Sacks, LLP, New York, N.Y. (Scott N. Singer of counsel), forrespondents-appellants.
In an action to recover damages for personal injuries, etc., the defendant S. Donadic,Inc., appeals from so much of an order of the Supreme Court, Kings County (Jacobson,J.), dated January 27, 2012, as denied those branches of its cross motion which were forsummary judgment dismissing so much of the complaint and cross claims as allegedviolations of Labor Law § 200 and common-law negligence insofar as assertedagainst it, the defendant Coffey Contracting, Inc., separately appeals from so much of thesame order as denied that branch of its cross motion which was for summary judgmentdismissing so much of the complaint as alleged common-law negligence insofar asasserted against it, and the plaintiffs cross-appeal, as limited by their notice of appeal andbrief, from so much of the same order as (a) denied their motion for summary judgmenton the issue of liability on so much of the complaint as alleged a violation of Labor Law§ 240 (1) insofar as asserted against the defendants S. Donadic, Inc., and CoffeyContracting, Inc., (b) granted that branch of the cross motion of the defendant S.Donadic, Inc., which was for summary judgment dismissing so much of the complaint asalleged a violation of Labor Law § 240 (1) insofar as asserted against it, and (c)granted that branch of the cross motion of the defendant Coffey Contracting, Inc., whichwas for summary judgment dismissing so much of the complaint as alleged a violation ofLabor Law § 240 (1) insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that the order is reversed insofar as cross-appealed from, on the law, theplaintiffs' motion for summary judgment on the issue of liability on so much of thecomplaint as alleged a violation of Labor Law § 240 (1) insofar as asserted againstthe defendants S. Donadic, Inc., and Coffey Contracting, Inc., is granted, and that branchof the cross motion of the defendant S. Donadic, Inc., which was for summary judgmentdismissing so much of the complaint as alleged a [*2]violation of Labor Law § 240 (1) insofar as assertedagainst it, and that branch of the cross motion of the defendant Coffey Contracting, Inc.,which was for summary judgment dismissing so much of the complaint as alleged aviolation of Labor Law § 240 (1) insofar as asserted against it are denied; and it isfurther,
Ordered that one bill of costs is awarded to the plaintiffs.
The defendant S. Donadic, Inc. (hereinafter Donadic), was hired by the defendantScott N. Resnick to renovate his Manhattan brownstone. Donadic hired the defendantCoffey Contracting, Inc. (hereinafter Coffey Contracting), to work on the masonry of thebuilding. Coffey Contracting hired Townhouse Restorations, Inc. (hereinafterTownhouse), owned by the plaintiffs, to fabricate sills, lintels, and coping stones for theproject. Part of the job of fabricating these materials included the plaintiff PhilipGallagher (hereinafter the injured plaintiff) going to the work site and takingmeasurements prior to the fabrication. The sills, lintels, and coping stones werefabricated at Townhouse's Brooklyn workshop.
On April 23, 2009, the injured plaintiff came to the work site to take measurementsin preparation for fabricating coping stones for the roof of the building. He fell from theroof to a terrace approximately 10 to 12 feet below, and allegedly suffered traumaticbrain injury, resulting in a total loss of memory of the accident. The injured plaintiff, andhis wife suing derivatively, commenced this action, alleging, inter alia, violations ofLabor Law §§ 200, 240 (1), 241 (6) and common-law negligence. Theplaintiffs moved for summary judgment on the issue of liability on so much of thecomplaint as alleged a violation of Labor Law § 240 (1). Donadic and CoffeyContracting separately cross-moved, inter alia, for summary judgment dismissing thecomplaint insofar as asserted against each of them. The Supreme Court found that theinjured plaintiff was not covered by Labor Law §§ 240 (1) and 241 (6), andthat Coffey Contracting was not an agent pursuant to Labor Law §§ 240 (1)and 241 (6). The court denied the plaintiffs' motion. The court awarded summaryjudgment dismissing so much of the complaint as alleged violations of Labor Law§§ 200, 240 (1) and 241 (6) insofar as asserted against Coffey Contracting,and so much of the complaint as alleged violations of Labor Law §§ 240 (1)and 241 (6) insofar as asserted against Donadic. On appeal, the plaintiffs do notchallenge the court's granting of those branches of Donadic's and Coffey Contracting'scross motions which were for summary judgment dismissing so much of the complaint asalleged violations of Labor Law § 241 (6) insofar as asserted against each of themand that branch of Coffey Contracting's cross motion which was for summary judgmentdismissing so much of the complaint as alleged a violation of Labor Law § 200insofar as asserted against it.
To invoke the protections afforded by Labor Law § 240 (1), a " 'plaintiff mustdemonstrate that he [or she] was both permitted or suffered to work on a building orstructure and that he [or she] was hired by someone, be it owner, contractor or theiragent,' " to work at the site (Mordkofsky v V.C.V. Dev. Corp., 76 NY2d 573,576-577 [1990], quoting Whelen v Warwick Val. Civic & Social Club, 47 NY2d970, 971 [1979]). Moreover, the plaintiff must have, at the time of the accident, beenengaged in a "covered activity" under the statute (see Prats v Port Auth. of N.Y. &N.J., 100 NY2d 878, 880-881 [2003]). "Section 240 is intended to place the ultimateresponsibility for building practices on the owner and general contractor in order toprotect the workers who are required to be there but who are scarcely in a position toprotect themselves from accidents," and it is to be liberally construed to achieve thispurpose (see Lombardi v Stout, 80 NY2d 290, 296 [1992]). Here, Townhousehad been hired to fabricate sills, lintels, and coping stones to be used in the constructionof the subject building. Part of that job included going to the work site and climbing tothe roof of the building to take measurements in preparation for the fabrication. Thus, theinjured plaintiff was performing a task ancillary to the construction work and wasengaged in a "covered activity" within the meaning of Labor Law § 240 (1)(see Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878, 881-882 [2003]).Accordingly, the Supreme Court erred in granting those branches of the cross motions ofDonadic and Coffey Contracting which were for summary judgment dismissing so muchof the complaint as alleged a violation of Labor Law § 240 (1) insofar as assertedagainst each of them.
The plaintiffs made a prima facie showing of their entitlement to judgment as amatter of law on the issue of liability on so much of the complaint as alleged that theDonadic and Coffey [*3]Contracting violated Labor Law§ 240 (1) through the submission of the deposition testimony of the owner ofCoffey Contracting and the deposition testimony of an employee of Donadic, whichdemonstrated that no safety devices were present on the site for the work beingperformed, and that this failure was a proximate cause of the injured plaintiff's injuries(see Blake v NeighborhoodHous. Servs. of N.Y. City, 1 NY3d 280 [2003]; Klein v City of NewYork, 89 NY2d 833, 835 [1996]; Inga v EBS N. Hills, LLC, 69 AD3d 568, 569-570 [2010]).The fact that the accident was not witnessed does not preclude an award of summaryjudgment to the plaintiffs (see Klein v City of New York, 89 NY2d at 834-835;Inga v EBS N. Hills, LLC, 69 AD3d at 569-570; Barr v 157 5 Ave., LLC, 60AD3d 796, 797 [2009]; Rivera v Dafna Constr. Co., Ltd., 27 AD3d 545 [2006]). Inopposition, Donadic and Coffey Contracting failed to raise a triable issue of fact.Additionally, contrary to Coffey Contracting's contention, it is liable under Labor Law§ 240 (1) as a statutory agent of the owner or general contractor, since it had theauthority to supervise and control the particular work in which the injured plaintiff wasengaged at the time of his injury (see Russin v Louis N. Picciano & Son, 54NY2d 311, 317-318 [1981]; Inga v EBS N. Hills, LLC, 69 AD3d at 570; Miller v Yeshiva Zichron MayirGedola, 44 AD3d 1017 [2007]; Taeschner v M & M Restorations, 295AD2d 598, 600 [2002]). Accordingly, the Supreme Court should have granted theplaintiffs' motion for summary judgment on the issue of liability on so much of thecomplaint as alleged a violation of Labor Law § 240 (1) insofar as asserted againstDonadic and Coffey Contracting.
To be held liable pursuant to Labor Law § 200 in a case such as this, where theclaim arises out of the methods or means of the work, a defendant must have authority tosupervise or control the work (see Szczepanski v Dandrea Constr. Corp., 90 AD3d 642,644 [2011]; Rodriguez vGany, 82 AD3d 863, 865 [2011]; Rojas v Schwartz, 74 AD3d 1046 [2010]; Ortega v Puccia, 57 AD3d54 [2008]). Here, Donadic failed to establish its prima facie entitlement to judgmentas a matter of law, as there is a triable issue of fact as to whether it had the authority tosupervise or control the injured plaintiff's work. Accordingly, the Supreme Courtproperly denied that branch of Donadic's cross motion which was for summary judgmentdismissing so much of the complaint as alleged a violation of Labor Law § 200insofar as asserted against it (seeAcosta v Hadjigavriel, 18 AD3d 406, 407 [2005]). The Supreme Court alsoproperly denied those branches of the separate cross motions of Donadic and CoffeyContracting which were for summary judgment dismissing so much of the complaint asalleged common-law negligence insofar as asserted against each of them (seeSzczepanski v Dandrea Constr. Corp., 90 AD3d at 644; Rodriguez v Gany,82 AD3d at 863; Ortega v Puccia, 57 AD3d at 63). Skelos, J.P., Angiolillo,Roman and Miller, JJ., concur. [Prior Case History: 35 Misc 3d 1203(A), 2012 NYSlip Op 50540(U).]