CANO v. Phantom Carting, Inc., respondent (and a third-Party action). (2026)

DECISION & ORDER

In a consolidated action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Devin P. Cohen, J.), dated July 2, 2024.  The order, insofar as appealed from, denied that branch of the plaintiff's motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendant Phantom Carting, Inc.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On January 22, 2016, the plaintiff, who was employed as a “diesel technician” for the third-party defendant Maverick Enterprise Services, Inc., was building a carport structure on premises located at 57–55 57th Road in Maspeth when he was caused to fall and sustained injuries.  The plaintiff commenced separate actions against the defendants 57–51 57th Road, LLC, and 57–55 57th Road, LLC, and against the defendant Phantom Carting, Inc. (hereinafter Phantom), which were subsequently consolidated.  The plaintiff moved, inter alia, for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against Phantom.  In an order dated July 2, 2024, the Supreme Court, among other things, denied that branch of the plaintiff's motion.  The plaintiff appeals.

“Labor Law § 240(1) imposes a nondelegable duty upon owners, contractors, or their agents to provide proper protection to a worker performing certain types of construction work” (Guacho v. DLV Empire, LLC, 244 A.D.3d 959, 960, 245 N.Y.S.3d 355 [internal quotation marks omitted];  see Gomez v. 670 Merrick Rd. Realty Corp., 189 A.D.3d 1187, 1189, 138 N.Y.S.3d 111).  “A lessee of real property that hires a contractor and has the right to control the work at the property is considered to be an owner within the meaning of the law” (Seferovic v. Atlantic Real Estate Holdings, LLC, 127 A.D.3d 1058, 1059–1060, 7 N.Y.S.3d 458;  see Allan v. DHL Express [USA], Inc., 99 A.D.3d 828, 830, 952 N.Y.S.2d 275).  “[T]enants who neither contract for nor control and supervise the work may not be held liable under” Labor Law § 240(1) (Rizo v. 165 Eileen Way, LLC, 169 A.D.3d 943, 946, 94 N.Y.S.3d 157, citing Ferluckaj v. Goldman Sachs & Co., 12 N.Y.3d 316, 319–320, 880 N.Y.S.2d 879, 908 N.E.2d 869).  “The key question is whether the defendant had the right to insist that proper safety practices were followed” (Seferovic v. Atlantic Real Estate Holdings, LLC, 127 A.D.3d 1058, 1060, 7 N.Y.S.3d 458;  see Yiming Zhou v. 828 Hamilton, Inc., 173 A.D.3d 943, 945, 103 N.Y.S.3d 472).

Here, the plaintiff failed to eliminate all triable issues of fact as to whether Phantom, a lessee of the subject premises, controlled and supervised his work in the construction of the carport (see Yiming Zhou v. 828 Hamilton, Inc., 173 A.D.3d at 945–946, 103 N.Y.S.3d 472;  Rizo v. 165 Eileen Way, LLC, 169 A.D.3d at 946, 94 N.Y.S.3d 157).

Accordingly, the Supreme Court properly denied that branch of the plaintiff's motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against Phantom.

CHAMBERS, J.P., WOOTEN, WAN and HOM, JJ., concur.