TAYLOR v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY

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

Richard TAYLOR, Plaintiff–Respondent, v. The PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Defendant–Appellant.

10045

Decided: October 10, 2019

Manzanet–Daniels, J.P., Kern, Oing, Singh, JJ. Furman Kornfeld & Brennan, LLP, New York (A. Michael Furman of counsel), for appellant. Hofmann & Schweitzer, New York (Timothy F. Schweitzer of counsel), for respondent.

Order, Supreme Court, Bronx County (Lizbeth González, J.), entered on or about February 7, 2019, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff alleges that he was injured while working on a construction project at Port Newark in New Jersey.  Accordingly, the parties to this appeal agree that substantive New Jersey law applies (see Aviles v. Port Auth. of N.Y. & N.J., 202 A.D.2d 45, 615 N.Y.S.2d 668 [1st Dept. 1994]), and that, for the purpose of this case, defendant is the de facto landowner of the property on which plaintiff's incident occurred (see Estate of Desir ex rel. Estiverne v. Vertus, 214 N.J. 303, 69 A.3d 1247 [2013];  Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 625 A.2d 1110 [1993];  Mandal v. Port Auth. of N.Y. & N.J., 430 N.J. Super 287, 64 A.3d 239 [App.Div.2013]).

Under New Jersey law, “a landowner ․ is not responsible for harm which occurs to an employee [of an independent contractor] as a result of the very work which the [contractor] was hired to perform” (Dawson v. Bunker Hill Plaza Assoc., 289 N.J. Super 309, 317–318, 673 A.2d 847 [App.Div.] [citations and internal quotation marks omitted], certificate denied 146 N.J. 569, 683 A.2d 1164 [1996];  see Puckrein v. ATI Transp., Inc., 186 N.J. 563, 574, 897 A.2d 1034 [2006]).  However, a landowner will nevertheless be held liable for injuries to an independent contractor's employee if the landowner “retains control of the manner and means of doing the work subject to the contract[ ]” (Puckrein, 186 N.J. at 574, 897 A.2d 1034 [citation omitted];  see Dawson, 289 N.J. Super at 318, 673 A.2d 847).

Here, the evidence submitted in support of defendant's motion reveals that plaintiff's employer, as required to under the contract, submitted to defendant a plan to rectify misaligned piles, which defendant approved.  This approval was provided, despite the fact, that one of defendant's engineers expressed concerns two days later that the plan was unacceptable because of structural issues, and recommended use of another method currently being utilized by defendant at another berth project.  Since defendant retained the ability to approve or disapprove the method by which plaintiff's employer rectified the misaligned piles, defendant failed to establish prima facie that it did not retain control over the manner and means by which plaintiff's employer's work was to be performed.

We have considered the parties' remaining contentions and find them either unavailing or academic in light of our determination.