Balthazar v. FULL CIRCLE CORP

• Decision Date: 25 April 2000
• Citation: 707 N.Y.S.2d 70,268 A.D.2d 96
• Court: New York Supreme Court — Appellate Division
• Parties: ZACHARY BALTHAZAR et al., Respondents,<BR>v.<BR>FULL CIRCLE CONSTRUCTION CORP. et al., Appellants.<BR>FULL CIRCLE CONSTRUCTION CORP., Third-Party Plaintiff-Appellant-Respondent,<BR>v.<BR>CAPITOL FIRE SPRINKLER CO., INC., Third-Party Defendant-Respondent-Appellant.

268 A.D.2d 96

707 N.Y.S.2d 70

ZACHARY BALTHAZAR et al., Respondents,

v.FULL CIRCLE CONSTRUCTION CORP. et al., Appellants.

FULL CIRCLE CONSTRUCTION CORP., Third-Party Plaintiff-Appellant-Respondent,

v.CAPITOL FIRE SPRINKLER CO., INC., Third-Party Defendant-Respondent-Appellant.

ROSENBERGER, J. P.

April 25, 2000.

Ellen Sackstein of counsel, Garden City (Sackstein, Sackstein & Sackstein, L. L. P., attorneys), for respondents.

Robert I. Elan, New York City, for Full Circle Construction Corp., appellant and third-party plaintiff-appellant-respondent.

Christopher A. South of counsel, New York City (Law Office of Tromello & Siegel, attorneys), for Richard Levine, appellant.

John P. Sipp, Jr., of counsel, New York City (McMahon, Martine & Gallagher, attorneys), for third-party defendant-respondent-appellant.

MAZZARELLI, ELLERIN, RUBIN and ANDRIAS, JJ., concur.

OPINION OF THE COURT

ROSENBERGER, J. P.

On December 15, 1994, plaintiff Zachary Balthazar, a plumber, fell from an allegedly defective ladder while installing a fire sprinkler system in a building owned by defendant Richard Levine. Levine was also the president of Capitol Fire Sprinkler Co., Inc., the company which employed Balthazar. Capitol was the lessee occupying the half of the building where Balthazar was working. He fell because the base of the ladder allegedly had no rubber safety shoes to provide traction and prevent the ladder from slipping.

Plaintiffs brought the instant action against Levine, as owner, and against Full Circle Construction Corp., whom Capitol had retained to act as construction manager for certain renovations of the interior and exterior of the building. The complaint alleged violations of Labor Law §§ 200 and 240 (1) based on failure to provide adequate safety equipment.

At issue on this appeal is the motion court's grant of partial summary judgment to plaintiffs as to liability under section 240 (1). Full Circle contends that it should not be held liable as a general contractor because it was not a general contractor, but a construction manager, and had no responsibility for the sprinkler work. Furthermore, all defendants argue that Balthazar should be barred from recovery as a "recalcitrant worker," based on his alleged failure to follow instructions to use only Capitol's equipment. Full Circle and Capitol each assert that the defective ladder belonged to the other party. Because of this dispute over ownership, the motion court denied Full Circle's cross motion for summary judgment on its claim for indemnification from Capitol.

Summary judgment on liability should have been denied as against Full Circle because issues of fact exist as to its role, if any, in the sprinkler project. Where a party had no authority to supervise or control the activity that caused the plaintiff's injury, that party may not be held liable (Filchuk v Lehrer McGovern Bovis Constr., 232 AD2d 329, 330 [releasing general contractor where work was not performed by contractor's employees or its subcontractors]). It is a defense that the plaintiff's work at the time of the accident was outside the scope of the general contractor's contract (Root v County of Onondaga, 174 AD2d 1014, 1015, lv denied 78 NY2d 858). Whether this defense applies to Full Circle is a question of fact for trial.

The terms "general contractor" and "construction manager" are not synonymous. As construction manager, under an American Institute of Architects form contract, which is different from that for a general contractor, Full Circle worked with the architect to plan the renovations, hired subcontractors, obtained bids and work permits, and supervised the subcontractors' work. Although Full Circle was required to review the subcontractors' safety programs, the contract was specific that "[t]he Construction Manager's responsibilities for coordination of safety programs shall not extend to direct control over or charge of the acts or omissions" of persons other than Full Circle's own employees.

According to Full Circle, the fire sprinkler work was entirely extrinsic to its contract with Capitol, and was not included in the renovation plans that Full Circle supervised. Capitol fabricated the components, supervised and directed the installation, and provided the equipment to its employees. Therefore, Full Circle claims it was not a "general contractor" for purposes of Labor Law § 240 (1) with respect to the sprinkler work. Capitol thus would not be a subcontractor of Full Circle, but an independent contractor...