WALP v. ACTS TESTING LABS INC DIVISION OF BUREAU VERITAS LTL ACTS

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

Thomas C. WALP and Gretchen Walp, Plaintiffs-Respondents, v. ACTS TESTING LABS, INC./DIVISION OF BUREAU VERITAS, Consumer Products Service Division of Bureau Veritas (Brand Name LTL-ACTS) and Bureau Veritas, Defendants-Appellants.

ACTS Testing Labs, Inc./Division of Bureau Veritas, Third-Party Plaintiff-Respondent, v. Northpointe Associates Building # 2, LLC, c/o Zaepfel Development Company, Inc., Third-Party Defendant-Appellant.

Decided: April 28, 2006

PRESENT:  SCUDDER, J.P., KEHOE, MARTOCHE, GREEN, AND HAYES, JJ. Brown & Kelly, LLP, Buffalo (Patricia S. Ciccarelli of Counsel), for Third-Party Defendant-Appellant. Eustace & Marquez, White Plains (John R. Marquez of Counsel), for Defendants-Appellants and Third-Party Plaintiff-Respondent. Paul William Beltz, P.C., Buffalo (Debra A. Norton of Counsel), for Plaintiffs-Respondents.

 Plaintiffs commenced this action to recover damages for injuries sustained by Thomas C. Walp (plaintiff) when he fell from a ladder while repairing an exhaust fan in a newly constructed building leased by defendant-third-party plaintiff, ACTS Testing Labs, Inc./Division of Bureau Veritas (ACTS), from third-party defendant, Northpointe Associates Building # 2, LLC (Northpointe).   Supreme Court properly denied the cross motion of defendants seeking summary judgment dismissing the complaint and the motion of Northpointe seeking summary judgment dismissing the complaint and third-party complaint.   The court also properly granted plaintiffs' cross motion seeking a determination that ACTS is an owner for purposes of liability pursuant to Labor Law § 240(1) and § 241(6).  “The term ‘owner’ as used in those sections is not limited to titleholders, but also encompasses one who ‘has an interest in the property,’ such as a lessee ․, who contracted for or otherwise has the right to control the work” (Fisher v. Coghlan, 8 A.D.3d 974, 975-976, 778 N.Y.S.2d 812, lv. dismissed 3 N.Y.3d 702, 785 N.Y.S.2d 28, 818 N.E.2d 670, quoting Copertino v. Ward, 100 A.D.2d 565, 566, 473 N.Y.S.2d 494;  see Kane v. Coundorous, 293 A.D.2d 309, 311, 739 N.Y.S.2d 711).   The record establishes that ACTS is an owner within the meaning of those Labor Law sections by virtue of the fact that it contracted with Northpointe for the construction of the building for the exclusive use and benefit of ACTS (see Kane, 293 A.D.2d at 311, 739 N.Y.S.2d 711;  see generally Riordan v. BOCES of Rochester, 4 A.D.3d 869, 870, 772 N.Y.S.2d 428;  Sweeting v. Board of Coop. Educ. Servs., 83 A.D.2d 103, 113-114, 443 N.Y.S.2d 910, lv. denied 56 N.Y.2d 503, 450 N.Y.S.2d 1025, 435 N.E.2d 1100) and, in addition, plaintiff's work was conducted at the direction of ACTS in an area under its control (see Zaher v. Shopwell, Inc., 18 A.D.3d 339, 795 N.Y.S.2d 223;  Riordan, 4 A.D.3d at 870, 772 N.Y.S.2d 428).

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

MEMORANDUM: