LLC _____ v. << (2011)

O'Melveny & Myers LLP, New York (Brad Elias of counsel), for East 51 st Street Development Company, LLC, appellant.

Gallo Vitucci and Klar, LLP, New York (Kimberly A. Ricciardi of counsel), for Reliance Construction Group and RCG Group, Inc., appellants.

Sullivan Papain Block McGrath & Cannavo P.C., New York (Brian J. Shoot of counsel), for Della Porta respondents.

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Order, Supreme Court, New York County (Karen S. Smith, J.), entered July 29, 2010, which granted the Della Porta plaintiffs' motion for partial summary judgment on the issue of defendants East 51 st Street Development Company, LLC, Reliance Construction Group and RCG Group, Inc.'s (defendants) liability under Labor Law § 240(1), unanimously affirmed, with costs.   Appeals from orders, same court, Justice and entry date, insofar as they granted the Bleidner, Stephens, Jendersee, Gallone, Mazza and Cohen plaintiffs' motions for partial summary judgment on the issue of liability under Labor Law § 240(1), unanimously withdrawn in accordance with the terms of the stipulations of the parties.

Where, as here, it is undisputed that plaintiff John Della Porta was injured as a result of the collapse of a crane, a prima facie case of liability under Labor Law § 240(1) is established (see Thompson v. St. Charles Condominiums, 303 A.D.2d 152, 154 [2003], lv dismissed 100 N.Y.2d 556 [2003];  Cosban v. New York City Tr. Auth., 227 A.D.2d 160, 161 [1996] ).   Plaintiffs' alleged reliance on inadmissible reports is of no moment, given the undisputed facts.

Defendants have failed to raise an issue of fact as to whether they violated Labor Law § 240(1) and whether such violation proximately caused plaintiff John Della Porta's injuries (see Cosban, 227 A.D.2d at 161).   The alleged failure of plaintiff's coworker to provide adequate safety devices, such as slings, does not raise an issue of fact.   The existence of unused safety devices at the work site can bar recovery only if the devices were readily available at the work site;  plaintiff knew that they were available and that he was expected to use them;  he chose not to use them “for no good reason”;  and such choice caused the accident (Gallagher v. New York Post, 14 NY3d 83, 88 [2010];  Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40 [2004] ).   Here, there was no evidence that plaintiff knew where to find the safety devices that defendants argue were readily available, or that he knew he was expected to use them but chose not to do so (see Auriemma v. Biltmore Theatre, LLC, 82 AD3d 1, 11 [2011] ).   The rigging contractor's alleged failure to properly rig the crane also fails to raise an issue of fact.   Indeed, the rigger's conduct was not “so far removed from any conceivable violation of the statute” as to constitute a superseding cause of the accident (Hajderlli v. Wiljohn 59 LLC, 71 AD3d 416, 416 [2010], lv denied 15 NY3d 713 [2010] ).

Contrary to defendant property owner's contention, Labor Law § 240(1) holds owners and general contractors absolutely liable for any breach of the statute even if they do not have a continuing duty to supervise the use of safety equipment (see McCarthy v. Turner Constr., Inc., 17 NY3d 369, 374 [2011] ).   We reject defendant construction manager's argument that it is not an owner or general contractor and thus cannot be held liable under the statute.   Pursuant to its contract with the property owner, the construction manager had supervisory authority and control over the project and thus is vicariously liable as an agent of the owner (see Castellon v. Reinsberg, 82 AD3d 635, 636 [2011];  Minorczyk v Dormitory Auth. of the State of N.Y., 74 AD3d 675, 675 [2010] ).   Summary judgment is not premature.   Defendants have not shown that additional discovery is necessary (see Duane Morris LLP v. Astor Holdings Inc., 61 AD3d 418, 418 [2009] ).   We have considered defendants' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK