SANTANGELO v. FLUOR CONSTRUCTORS INTERNATIONAL INC (1999)

 Supreme Court properly denied the motion of plaintiffs for partial summary judgment on liability against defendant American Ref-Fuel Company of Niagara on the Labor Law § 240(1) claim and the cross motion of third-party defendant, Frank Lill & Son, Inc. (Lill), for summary judgment dismissing the complaint.   Plaintiffs' decedent fell from a height of approximately 53 feet at a construction site when struck by the basket of a manlift being operated by a co-worker.   There is an issue of fact whether decedent was properly using his safety harness and lanyard at the time of the accident and thus whether he was a recalcitrant worker because he allegedly refused to tie off (see, Kulp v. Gannett Co. [appeal No. 1], 259 A.D.2d 969, 687 N.Y.S.2d 840).

 The court erred, however, in denying the cross motion of defendant APi, Inc. (APi) for summary judgment dismissing the complaint against it.   A subcontractor is not liable for a dangerous condition that arises from another contractor's methods unless it exercised control and supervision over those methods (see, Murray v. South End Improvement Corp., 263 A.D.2d 577, 693 N.Y.S.2d 264;  Gielow v. Rosa Coplon Home, 251 A.D.2d 970, 674 N.Y.S.2d 551, lv. dismissed in part and denied in part 92 N.Y.2d 1042, 685 N.Y.S.2d 416, 708 N.E.2d 172, rearg. denied 93 N.Y.2d 889, 689 N.Y.S.2d 431, 711 N.E.2d 645).   In addition, a subcontractor may be liable for common-law negligence in supplying defective equipment that is used by employees of another contractor (see, Schiulaz v. Arnell Constr. Corp., 261 A.D.2d 247, 690 N.Y.S.2d 226;  Kanney v. Goodyear Tire & Rubber Co., 245 A.D.2d 1034, 1036, 667 N.Y.S.2d 163).   APi met its initial burden by establishing that it did not control or supervise the manner in which decedent performed his work and that the manlift was not defective, and plaintiffs failed to raise an issue of fact.

We reject plaintiffs' contention that APi's cross motion was premature because plaintiffs had not completed discovery (see, CPLR 3212[f] ).  Plaintiffs failed to establish that facts essential to justify opposition to the cross motion were within the exclusive knowledge of APi or another party (see, Wittkopp v. ADF Constr. Corp., 254 A.D.2d 775, 678 N.Y.S.2d 199) or that they could not have completed discovery during the two years since commencement of the action (see, Adams v. Glass Fab, 212 A.D.2d 972, 974, 624 N.Y.S.2d 705).   Thus, we modify the order by granting the cross motion of APi and dismissing the complaint against it.

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: