SHERBOURNE III v. Bovis Lend Lease Interiors, Inc., by and through its Agents, Officers and/or Employees, Defendant-Appellant-Respondent.

Reset A A Font size: Print

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

John SHERBOURNE, III and Katherine Sherbourne, Plaintiffs-Respondents-Appellants, v. MURNANE BUILDING CONTRACTORS, INC., by and through its Agents, Officers and/or Employees, Defendant, Bovis Lend Lease Interiors, Inc., by and through its Agents, Officers and/or Employees, Defendant-Appellant-Respondent.

Decided: April 28, 2006

PRESENT:  PIGOTT, JR., P.J., HURLBUTT, MARTOCHE, SMITH, AND PINE, JJ. Costello, Cooney & Fearon, PLLC, Syracuse (Maureen G. Fatcheric of Counsel), for Defendant-Appellant-Respondent. Cherundolo, Bottar & Leone, P.C., Syracuse (Jerrold P. O'Brien of Counsel), for Plaintiffs-Respondents-Appellants.

Plaintiffs commenced this action seeking damages for injuries sustained by John Sherbourne, III (plaintiff) while performing plumbing work in connection with the construction of an addition to a school in the Sandy Creek School District (District).   Defendant Bovis Lend Lease Interiors, Inc. (Bovis) was the designated construction manager for the project, and the District hired plaintiff's employer to perform plumbing work for the project.   Plaintiff was injured when he fell from the seventh or eighth rung of a ladder while he was drilling holes through a cement wall.

Supreme Court properly denied those parts of the cross motion of Bovis for summary judgment dismissing the Labor Law § 240(1) and § 241(6) claims against it as well as plaintiffs' cross motion for partial summary judgment on liability on the section 240(1) claim.   There is a triable issue of fact whether Bovis, as the construction manager for the project, was acting as the agent of the owner pursuant to the terms of its agreement with the District and thus is subject to liability under the section 240(1) and section 241(6) claims (see Olney v. Ciminelli-Cowper Co., 248 A.D.2d 1019, 670 N.Y.S.2d 142;  Dose v. Jenn-Matt Corp., 239 A.D.2d 899, 661 N.Y.S.2d 811).   In addition, there is a triable issue of fact whether Bovis “acted as a ‘construction manager’ rather than a contractor [for the project] within the meaning of those sections” and thus cannot be held liable under those sections (Ewing v. ADF Constr. Corp., 16 A.D.3d 1085, 1087, 793 N.Y.S.2d 306).

Finally, Bovis contends that the court erred in denying those parts of its cross motion seeking summary judgment dismissing the Labor Law § 200 and common-law negligence claims.   We agree, inasmuch as plaintiffs failed to oppose that part of the cross motion of Bovis in Supreme Court and, indeed, have conceded on appeal that Bovis is entitled to that relief.   We thus modify the order accordingly.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting the cross motion of defendant Bovis Lend Lease Interiors, Inc. in part and dismissing the Labor Law § 200 and common-law negligence claims and as modified the order is affirmed without costs.

MEMORANDUM: