MUSSELMAN v. (And Two Third-Party Actions.)

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

Larry L. MUSSELMAN et al., Appellants, v. CHARLES A. GAETANO CONSTRUCTION CORPORATION, Respondent, et al., Defendant. (And Two Third-Party Actions.)

Decided: July 19, 2001

Before:  CARDONA, P.J., CREW III, SPAIN, MUGGLIN and ROSE, JJ. Sable & Gold (Jesse C. Sable of counsel), New York City, for appellants. Maynard, O'Connor, Smith & Catalinotto L.L.P. (Michael T. Snyder of counsel), Albany, for respondent.

Appeal from an order of the Supreme Court (Kavanagh, J.), entered September 18, 2000 in Albany County, which granted a motion by defendant Charles A. Gaetano Construction Corporation for summary judgment dismissing the complaint against it.

Plaintiff Larry L. Musselman (hereinafter plaintiff) was injured when he fell while exiting his employer's suspended swing scaffold after using it to perform masonry restoration work on the exterior of a school building undergoing renovation.   Defendant Charles A. Gaetano Construction Corporation (hereinafter Gaetano), one of 12 prime contractors on the project, had subcontracted with plaintiff's employer, third-party defendant Lupini Construction Inc., for the exterior masonry restoration.   This action alleging, inter alia, violations of Labor Law §§ 200 and 240(1) was previously before us on plaintiffs' appeal of the denial of their motion for summary judgment against Gaetano (277 A.D.2d 691, 716 N.Y.S.2d 466).   Supreme Court subsequently granted Gaetano's motion for summary judgment dismissing the complaint against it on the ground that it cannot be held liable under Labor Law § 200 or § 240(1) because it was not an owner, general contractor or agent, and did not exercise supervision or control over plaintiff's work.   Plaintiffs appeal.

 We affirm.   Plaintiffs concede that Gaetano was a prime contractor rather than the general contractor on the project, and that only owners and general contractors are absolutely liable for violations of Labor Law § 240(1) (see, Decotes v. Merritt Meridian Corp., 245 A.D.2d 864, 866, 666 N.Y.S.2d 763).   Prime contractors are liable “ ‘only if they are acting as the “agents” of the owner or general contractor by virtue of the fact that they had been given the authority to supervise and control the work being performed at the time of the injury’ ” (id., at 866, 666 N.Y.S.2d 763, quoting Walsh v. Sweet Assocs., 172 A.D.2d 111, 113, 577 N.Y.S.2d 324, lv. denied 79 N.Y.2d 755, 581 N.Y.S.2d 666, 590 N.E.2d 251 [emphasis in original];  see, Russin v. Picciano & Son, 54 N.Y.2d 311, 318, 445 N.Y.S.2d 127, 429 N.E.2d 805).   Here, unlike many of the cases cited by Gaetano, the injured worker was employed by a subcontractor of the prime contractor which moved for dismissal rather than by a subcontractor of another prime contractor (compare, Hornicek v. William H. Lane Inc., 265 A.D.2d 631, 696 N.Y.S.2d 557;  Mills v. Niagara Mohawk Power Corp., 262 A.D.2d 901, 692 N.Y.S.2d 493;  Walsh v. Sweet Assocs., supra ).   However, despite the contractual privity thereby traceable back to the owner, the record here fails to substantiate plaintiffs' claim that Gaetano received authority to control the subcontractor's work from the owner and, thus, was acting as the owner's agent in supervising Lupini.

Unlike in Hojohn v. Beltrone Constr. Co., 255 A.D.2d 658, 679 N.Y.S.2d 462, on which plaintiffs rely, the prime contractor's contract with the owner here did not require the prime contractor to control and coordinate the work of its subcontractors or to communicate the terms of its contract with the owner to its subcontractors (compare, id., at 660, 679 N.Y.S.2d 462).1  Rather, Gaetano's contract with the owner only generally describes Gaetano's responsibility for “CONCRETE & MASONRY WORK” with no reference to possible subcontractors or supervision of the work of others.   There is no contractual language or any other basis offered by plaintiffs to establish that Gaetano was authorized to act as the owner's agent in dealing with Lupini.   As a result, even though the contract between Gaetano and Lupini stated that Lupini “shall * * * stop any part of the Work which [Gaetano] deems unsafe until corrective measures satisfactory to [Gaetano] shall have been taken”, we find no evidence that the owner made Gaetano its agent in assessing safety conditions or otherwise supervising the subcontractor's work (see, Decotes v. Merritt Meridian Corp., 245 A.D.2d 864, 866, 666 N.Y.S.2d 763, supra).   For this reason, Supreme Court properly dismissed plaintiffs' Labor Law § 240(1) claim.

 As to liability under Labor Law § 200, the party charged must exercise supervisory control over the activity bringing about the injury (see, Lyon v. Kuhn, 279 A.D.2d 760, 760-761, 718 N.Y.S.2d 485), and the mere fact that a contractor retains general supervisory powers is not sufficient to impose liability (see, Soshinsky v. Cornell Univ., 268 A.D.2d 947, 947, 703 N.Y.S.2d 550;  Custer v. Cortland Hous. Auth., 266 A.D.2d 619, 620, 697 N.Y.S.2d 739, lv. denied 94 N.Y.2d 761, 707 N.Y.S.2d 142, 728 N.E.2d 338).   Here, the contract between Gaetano and Lupini expressly provided in article 10.1 that “[Gaetano] shall not issue or give any instructions, orders or directions directly to employees or workmen of [Lupini] other than to the persons designated as the authorized representative(s) of [Lupini]”.   Plaintiff's affidavit also confirms that no one from Gaetano ever directed him on how to do his work.   Moreover, Lupini's supervisor stated that no one other than Lupini personnel had directed plaintiff in performing his work.   Accordingly, we find that Supreme Court also properly dismissed plaintiffs' Labor Law § 200 claim and their similarly based common-law negligence claim (see, Custer v Cortland Hous. Auth., supra, at 620-621, 697 N.Y.S.2d 739;  Decotes v Merritt Meridian Corp., supra, at 865, 666 N.Y.S.2d 763).

ORDERED that the order is affirmed, with costs.

FOOTNOTES

1.   Notably, the record does not include all the addenda to the contract between Gaetano and the owner.

ROSE, J.

CARDONA, P.J., CREW III, SPAIN and MUGGLIN, JJ., concur.

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