GRUTER v. [And A Second Third Party Action]

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

Thomas GRUTER, et al., Plaintiffs-Respondents, v. LEHRER McGOVERN BOVIS, INC., Defendant-Appellant/Third-Party Plaintiff-Appellant. Zwicker Electric Company, Inc., et al., Third-Party Defendants-Respondents. [And A Second Third Party Action]

Decided: May 23, 2000

TOM, J.P., ELLERIN, LERNER, ANDRIAS and SAXE, JJ. Scott N. Singer, for Plaintiffs-Respondents. Christopher Crawford, for Defendant-Appellant/Third-Party Plaintiff-Appellant. Ella M. Ilan, for Third-Party Defendants-Respondents.

Judgment, Supreme Court, New York County (Franklin Weissberg, J., and a jury), entered June 16, 1999, insofar as appealed from, in favor of plaintiff laborer and against defendant-appellant construction manager, unanimously affirmed, without costs.

A fair interpretation of the evidence supports a finding that appellant actively supervised safety at the work site, and had the authority to correct the unsafe condition caused by the 1 1/212 to 3-inch high planned concrete lip in the floor (see, Russin v. Picciano & Son, 54 N.Y.2d 311, 316-317, 445 N.Y.S.2d 127, 429 N.E.2d 805).   Such evidence includes appellant's project superintendent's testimony that appellant was responsible for procuring and supervising construction work;  had multiple offices on site in which it held meetings with contractors;  reviewed work in progress to approve requisitions and invoices;  had an obligation to initiate, monitor and administer a site safety program;  erected and maintained all reasonable safety measures, including signs and warnings for all workers;  had project superintendents on site who, in addition to coordinating and scheduling the work performance of the various trades, also walked the site daily to look for and report any unsafe conditions and conducted regular safety meetings with the various contractors' foremen;  had an on-site safety manager “to supervise some of the safety for the trades that were employed by [appellant]”;  hired a safety protection contractor (held 30% liable along with appellant's 70%) directly responsible to it;  and was aware of the height differentials in the floor (cf., Freitas v. New York City Tr. Auth., 249 A.D.2d 184, 186, 672 N.Y.S.2d 101;  Colon v. Lehrer, McGovern & Bovis, 259 A.D.2d 417, 419, 687 N.Y.S.2d 130;  Paradise v. Lehrer, McGovern & Bovis, 267 A.D.2d 132, 134, 700 N.Y.S.2d 25, 27).   In addition, there was the testimony of the concrete worker that appellant inspected floors and that its safety contractor provided quarter rounds or wood planks for protection in certain areas where height differentials existed.   We have considered appellant's other arguments and find them unavailing.