RUSSELL RAST AND DEBORAH RAST INDIVIDUALLY AND AS HUSBAND AND WIFE PLAINTIFFS RESPONDENTS APPELLANTS v. WACHS ROME DEVELOPMENT LLC DEFENDANT APPELLANT RESPONDENT SCOTT QUICK DOING BUSINESS AS SCOTT QUICK CONSTRUCTION AND SCOTT QUICK CONSTRUCTION INC DEFENDANTS RESPONDENTS

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

RUSSELL R. RAST AND DEBORAH RAST, INDIVIDUALLY AND AS HUSBAND AND WIFE, PLAINTIFFS–RESPONDENTS -APPELLANTS, v. WACHS ROME DEVELOPMENT, LLC, DEFENDANT–APPELLANT -RESPONDENT, SCOTT QUICK, DOING BUSINESS AS SCOTT QUICK CONSTRUCTION, AND SCOTT QUICK CONSTRUCTION, INC., DEFENDANTS–RESPONDENTS.

CA 11–01462

Decided: April 20, 2012

PRESENT:  SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND MARTOCHE, JJ. GOLDBERG SEGALLA LLP, ALBANY (MATTHEW S. LERNER OF COUNSEL), FOR DEFENDANT–APPELLANT–RESPONDENT. DIXON & HAMILTON, LLP, GETZVILLE (DENNIS P. HAMILTON OF COUNSEL), FOR PLAINTIFFS–RESPONDENTS–APPELLANTS.

MEMORANDUM AND ORDER

Appeal and cross appeal from an order of the Supreme Court, Wyoming County (Mark H. Dadd, A.J.), entered April 15, 2011 in a personal injury action.   The order granted in part the motion of plaintiffs for partial summary judgment and granted in part the cross motion of defendants Scott Quick, doing business as Scott Quick Construction, and Scott Quick Construction, Inc. for summary judgment.

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting the motion in its entirety and denying the cross motion in its entirety and as modified the order is affirmed without costs.

Supreme Court granted that part of plaintiffs' motion for partial summary judgment on liability on the Labor Law § 240(1) claim against Wachs, but denied that part of the motion with respect to Quick and defendant Scott Quick Construction, Inc. We note that Quick, doing business as Scott Quick Construction, rather than defendant Scott Quick Construction, Inc., was hired to perform the work in question, but we nevertheless treat the two defendants as one entity, i.e., the Quick defendants, inasmuch as Quick testified at his deposition that the company began as a “d/b/a,” was thereafter incorporated, and then returned to “d/b/a” status.   The court further granted the cross motion of the Quick defendants in part by dismissing the Labor Law § 240(1) and § 241(6) claims against them.   Wachs now appeals and plaintiffs cross-appeal.   We conclude that the court should have granted plaintiffs' motion for partial summary judgment against both Wachs and the Quick defendants and should have denied the cross motion of the Quick defendants in its entirety.   We therefore modify the order accordingly.

Addressing first plaintiffs' cross appeal with respect to the Quick defendants' cross motion, we agree with plaintiffs that the Quick defendants are liable as an agent of the owner “for injuries sustained in those areas and activities within the scope of the work delegated to [them]” (Piazza v Frank L. Ciminelli Constr.   Co., Inc., 12 AD3d 1059, 1060;  see Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311, 317–318).   While the Quick defendants had no control over plaintiff's work, they had control over the area where plaintiff was injured.   Plaintiffs are asserting a defective condition of the work site rather than the manner of the work, and the Quick defendants must therefore establish that they did not have “supervision or control of the safety of the area involved in the incident” (Piazza, 12 AD3d at 1061;  see Martinez v. Tambe Elec., Inc., 70 AD3d 1376, 1377), which they failed to do.

Frances E. Cafarell

Clerk of the Court