GARRETT HARGRAVE AND KARI JEAN HARGRAVE PLAINTIFFS APPELLANTS RESPONDENTS v. LECHASE CONSTRUCTION SERVICES LLC DEFENDANT RESPONDENT APPELLANT (2014)

MEMORANDUM AND ORDER

Appeal and cross appeal from an order of the Supreme Court, Oswego County (Norman W. Seiter, Jr., J.), entered February 11, 2013.   The order, among other things, denied in part the motion of defendant for summary judgment.

It is hereby ORDERED that the order so appealed from is modified on the law by granting defendant's motion in its entirety and dismissing the amended complaint and as modified the order is affirmed without costs.

All concur except Whalen, J., who dissents and votes to modify in accordance with the following Memorandum:  I respectfully dissent because I cannot agree with the majority's conclusion that plaintiffs failed to raise a triable issue of fact whether defendant had supervisory control and authority over the work being done by the employer of Garrett Hargrave (plaintiff) (see Walls v. Turner Constr.   Co., 4 NY3d 861, 864).   I therefore conclude that Supreme Court erred in granting defendant's motion with respect to Labor Law § 241(6) and properly denied it with respect to Labor Law § 200 and common-law negligence, and I would modify the order accordingly.

Because a question of fact remains whether defendant had supervisory control over the work on the roof, the court erred in granting that part of defendant's motion for summary judgment dismissing the Labor Law § 241(6) cause of action (see Walls, 4 NY3d at 864;  Comes v New York State Elec. & Gas Corp., 82 N.Y.2d 876, 877).   For the same reason, I conclude that the court properly denied defendant's motion with respect to the section 200 and common-law negligence causes of action (see Comes, 82 N.Y.2d at 877).

Frances E. Cafarell

Clerk of the Court