PHILLIPS v. WILMORITE INC

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

Mitchell PHILLIPS and Dale Phillips, Plaintiffs-Respondents, v. WILMORITE, INC., Defendant-Appellant, et al., Defendants.

Decided: March 21, 2001

PRESENT:  PIGOTT, JR., P.J., GREEN, KEHOE, BURNS and LAWTON, JJ. Cheryl Loria-Dinolfo, for defendant-appellant. Stephen X. O'Brien, for plaintiffs-respondents.

Supreme Court erred in denying that part of the motion of Wilmorite, Inc. (defendant) seeking summary judgment dismissing the claims alleging the violation of Labor Law § 240(1) and § 241(6) and in granting the cross motion of plaintiffs seeking summary judgment on the Labor Law § 240(1) claim.   Mitchell Phillips (plaintiff) was injured while working at a construction project at the Greater Rochester International Airport.   Defendant, the construction manager on the project, met its initial burden of establishing its entitlement to judgment as a matter of law on those claims, 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).   Defendant established as a matter of law that it was not an agent of the owner because the owner had not delegated to it the authority to supervise and control plaintiff's work (see, Russin v. Picciano & Son, 54 N.Y.2d 311, 318, 445 N.Y.S.2d 127, 429 N.E.2d 805;  Griffin v. MWF Dev. Corp., 273 A.D.2d 907, 908-909, 709 N.Y.S.2d 322).   We therefore reverse the order insofar as appealed from, deny the cross motion of plaintiffs, grant the motion of defendant in its entirety, and dismiss the complaint against it.

Order insofar as appealed from unanimously reversed on the law without costs, cross motion denied, motion granted and complaint against defendant Wilmorite, Inc. dismissed.

MEMORANDUM: