PACHECO v. PJS (2018)

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered on or about June 30, 2017, which, to the extent appealed from as limited by the briefs, denied the cross motion of defendant Almeida Concrete Pumping and Equipment, Inc. (Almeida) for summary judgment dismissing plaintiff's Labor Law §§ 200 and 241(6) claims as against it, unanimously affirmed, without costs.

The court properly denied Almeida's cross motion for summary judgment, as issues of fact exist as to whether Almeida was a subcontractor of the subject renovation project or a mere materialman not owing plaintiff a duty under the Labor Law. The record shows that Almedia leased equipment and two employees to operate the equipment, for the pouring of concrete on the subject construction project, purportedly under the supervision of defendant subcontractor Paul J. Scariano, Inc. (Scariano).  Although Almeida's employees controlled the equipment, they were told where and when to pour the concrete.  Thus, under the facts of this case, it is not at all clear as a matter of law that Almeida's employees did not control, or partially control, the cleanup of the equipment, during which the accident occurred (see Erickson v. Cross Ready Mix, Inc., 75 A.D.3d 519, 906 N.Y.S.2d 284 [2d Dept. 2010], lv dismissed 16 N.Y.3d 794, 919 N.Y.S.2d 508, 944 N.E.2d 1148 [2011];  Dorn v. Johnson Corp., 16 A.D.2d 1009, 1010, 229 N.Y.S.2d 266 [3d Dept. 1962] ).

Furthermore, there are issues of fact as to whether Almeida was a statutory agent of the owner or general contractor, with supervisory control and authority over the work being performed at the time of plaintiff's injury (see Walls v. Turner Constr. Co., 4 N.Y.3d 861, 864, 798 N.Y.S.2d 351, 831 N.E.2d 408 [2005];  compare Orofino v. 388 Realty Owners, LLC, 146 A.D.3d 532, 46 N.Y.S.3d 16 [1st Dept. 2017] ).

We have considered Almeida's remaining contentions and find them unavailing.