TITUS v. David Christa Construction, Inc., Defendant-Respondent.

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Supreme Court, Appellate Division, Fourth Department, New York.

Todd J. TITUS and Tracy A. Titus, Plaintiffs-Appellants, v. KIRST CONSTRUCTION, INC., Defendant, David Christa Construction, Inc., Defendant-Respondent.

Decided: September 28, 2007

PRESENT:  SCUDDER, P.J., MARTOCHE, LUNN, PERADOTTO, AND GREEN, JJ. Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of Counsel), for Plaintiffs-Appellants. Hiscock & Barclay LLP, Buffalo (Jessica M. Baker of Counsel), for Defendant-Respondent.

Plaintiffs commenced this Labor Law and common-law negligence action seeking damages for injuries sustained by Todd J. Titus (plaintiff) when he fell from a ladder at a school construction site.   Plaintiff was an employee of Mader Construction Corporation, a subcontractor hired by the Randolph Central School District (District) to install drywall as part of a construction project at the District's high school and elementary school.   In order to tape drywall seams in an area 18 feet from the floor, plaintiff raised a Baker scaffold to its maximum elevation and then placed an eight-foot ladder on top of the Baker scaffold, in a closed position and leaning against the wall.   After locking the wheels of the Baker scaffold and testing the sturdiness of the ladder, plaintiff climbed the ladder and began to tape the drywall seams.   Approximately 30 seconds after plaintiff ascended the ladder, the Baker scaffold tipped over, causing plaintiff to fall on the concrete floor.

As against defendant David Christa Construction, Inc. (Christa), plaintiffs alleged that it acted as a general contractor for the construction project or as an agent of the owner and was therefore liable for plaintiff's injuries pursuant to, inter alia, Labor Law § 240(1).   Plaintiffs thereafter moved for partial summary judgment on liability pursuant to Labor Law § 240(1) against Christa, and Christa cross-moved for summary judgment dismissing the complaint against it.   In support of its cross motion, Christa asserted that it was the construction manager and was responsible for general oversight of the project, but it did not have authority to enforce worker safety.   Supreme Court denied plaintiffs' motion and granted Christa's cross motion.   We affirm.

We reject plaintiffs' contention that Christa was acting as a general contractor or as the agent of the District and therefore had a duty to provide plaintiff with the proper equipment to ensure his safety pursuant to Labor Law § 240(1).   Addressing first the issue of agency, we note that the key criterion for determining whether a third party is an agent of the owner for purposes of Labor Law § 240(1) liability is whether that third party has “ ‘the right to insist that proper safety practices [are] followed and it is the right to control the work that is significant, not the actual exercise or nonexercise of control’ ” (Nowak v. Smith & Mahoney, 110 A.D.2d 288, 290, 494 N.Y.S.2d 449;  see also Ogden v. City of Hudson Indus. Dev. Agency, 277 A.D.2d 794, 795, 716 N.Y.S.2d 745;  Bart v. Universal Pictures, 277 A.D.2d 4, 715 N.Y.S.2d 240).   Christa was hired by the District as a construction manager for the project and, pursuant to the express terms of its contract, it had no control over or responsibility for the safety of the workers at the construction site.   Nor did Christa by its conduct at the construction site assume the role of a general contractor or an agent of the District.   Although Christa routinely called safety issues to the attention of the contractors, it did not have the ability to enforce safety measures.   Christa did not hire or pay either the contractors or their employees (see Aversano v. JWH Contr., LLC, 37 A.D.3d 745, 746, 831 N.Y.S.2d 222;  Bach v. Emery Air Frgt. Corp., 128 A.D.2d 490, 491, 512 N.Y.S.2d 417);  it had no control over the manner in which the work was performed (see Ogden, 277 A.D.2d at 795, 716 N.Y.S.2d 745;  Kulaszewski v. Clinton Disposal Servs., 272 A.D.2d 855, 856, 707 N.Y.S.2d 558;  Wright v. Nichter Constr. Co., 213 A.D.2d 995, 624 N.Y.S.2d 487);  and it had no authority to stop work on the project because of unsafe work practices (cf. Sheridan v. Albion Cent. School Dist., 41 A.D.3d 1277, 838 N.Y.S.2d 296).   We therefore conclude that Christa established its entitlement to summary judgment dismissing the complaint against it (see Scally v. Regional Indus. Partnership, 9 A.D.3d 865, 867-868, 780 N.Y.S.2d 457), and plaintiffs failed to raise a triable issue of fact (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.