UZAR v. LOUIS CIMINELLI CONSTRUCTION CO INC (2008)

Plaintiffs commenced this action seeking damages for injuries sustained by Robert Uzar (plaintiff) in a construction accident.   Plaintiffs stipulated to the dismissal of all causes of action except the Labor Law § 241(6) claim against defendant Turner Construction Company (Turner) and the common-law negligence and Labor Law § 200 claims against defendant Louis P. Ciminelli Construction Co., Inc. (Ciminelli).  Supreme Court properly granted the motion of Turner and the cross motion of Ciminelli for summary judgment dismissing the complaint.

 We reject plaintiffs' contention that Turner, as the construction manager, was acting as the general contractor or as the agent of Erie County (County) on the construction project and therefore is subject to liability for plaintiff's safety pursuant to Labor Law § 241(6).  “An entity is a contractor within the meaning of Labor Law ․ § 241(6) if it had the power to enforce safety standards and choose responsible subcontractors ․ and an entity is a general contractor if, in addition thereto, it was responsible for coordinating and supervising the ․ project” (Mulcaire v. Buffalo Structural Steel Constr. Corp., 45 A.D.3d 1426, 1428, 846 N.Y.S.2d 838).   Here, the express terms of the contract pursuant to which the County hired Turner as construction manager for the project provide that Turner was not responsible for the safety of the workers at the construction site.   Turner did not hire the subcontractors (see Bach v. Emery Air Frgt. Corp., 128 A.D.2d 490, 491, 512 N.Y.S.2d 417;  cf. Mulcaire, 45 A.D.3d at 1428, 846 N.Y.S.2d 838), and it had no authority to control the manner in which the work was performed (see Caradori v. Med Inn Ctrs. of Am., 5 A.D.3d 1063, 1064, 773 N.Y.S.2d 713).   In addition, Turner had no authority to enforce safety measures or to stop work on the project because of unsafe work practices (see Damiani v. Federated Dept. Stores, Inc., 23 A.D.3d 329, 331-332, 804 N.Y.S.2d 103;  cf. Sheridan v. Albion Cent. School Dist., 41 A.D.3d 1277, 1278-1279, 838 N.Y.S.2d 296;  Relyea v. Bushneck, 208 A.D.2d 1077, 1078, 617 N.Y.S.2d 558).   Consequently, we conclude that Turner met its initial burden on its motion by establishing its entitlement to judgment as a matter of law (see Millard v. Hueber-Breuer Constr. Co., 4 A.D.3d 817, 818, 772 N.Y.S.2d 173), and plaintiffs failed to raise a triable issue of fact whether Turner was liable as a general contractor or an agent of the owner (see Bateman v. Walbridge Aldinger Co., 299 A.D.2d 834, 835, 750 N.Y.S.2d 402, lv. denied 100 N.Y.2d 502, 761 N.Y.S.2d 595, 791 N.E.2d 961;  see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

 Contrary to plaintiffs' further contention, Ciminelli met its burden on its cross motion for summary judgment dismissing the common-law negligence and Labor Law § 200 claims by establishing that there was “no evidence ․ to demonstrate that [Ciminelli] had any control or supervisory role over the work of the plaintiff, so as to enable it to prevent or correct any unsafe conditions” (Linkowski v. City of New York, 33 A.D.3d 971, 975, 824 N.Y.S.2d 109), and plaintiffs failed to raise a triable issue of fact.   Finally, we cannot agree with plaintiffs that Ciminelli created the dangerous condition and thus is liable under the common-law negligence claim.   Rather, Ciminelli established as a matter of law that it did not create the dangerous condition that allegedly caused plaintiff to fall, and plaintiffs failed to raise a triable issue of fact (cf. Severino v. Hohl Indus. Servs., 300 A.D.2d 1049, 752 N.Y.S.2d 776).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

MEMORANDUM: