Carter v. Vollmer Associates
| Decision Date | 23 September 1993 |
| Citation | 602 N.Y.S.2d 48,196 A.D.2d 754 |
| Parties | William CARTER, et al., Plaintiffs-Appellants, v. VOLLMER ASSOCIATES, Defendant-Respondent and Third-Party Plaintiff-Respondent. Hallen Construction Company, et al., Third-Party Defendants-Respondents. |
| Court | New York Supreme Court — Appellate Division |
Before ROSENBERGER, J.P., and ASCH, KASSAL and RUBIN, JJ.
Order, Supreme Court, New York County (Leland DeGrasse, J.), entered June 23, 1992, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
We agree with the IAS court that plaintiffs failed to come forward with any evidence to support their contention that defendant, a professional engineer, was under a duty to supervise or control the work site so as to be liable for plaintiff husband's injuries either under the Labor Law or in common law negligence as an agent of the State, the owner of the project.
As the IAS court noted, a professional engineer can be held liable under Labor Law §§ 240 and 241(6) only if there exists the authority to supervise and control the activity which brought about the injury (Santoro v. American Airlines, 170 A.D.2d 206, 565 N.Y.S.2d 105; see also, Davis v. Lenox School, 151 A.D.2d 230, 231, 541 N.Y.S.2d 814). Here, defendant's contract with the State with respect to the work site clearly limited its responsibilities to "construction inspection services", and did not delegate any authority to direct or control the work of the contractor. This duty to inspect was not sufficient by itself to result in liability under the Labor Law since the contract only obligated defendant to report any deviations from the project design or delays to the engineer in charge, an employee of the State, and there is no evidence otherwise to indicate that defendant had any duty or authority to direct that any action be taken by the State in response to its inspection (Santoro v. American Airlines, supra, 170 A.D.2d at 208, 565 N.Y.S.2d 105; Jewish Board of Guardians v. Grumman Allied Industries, Inc., 96 A.D.2d 465, 464 N.Y.S.2d 778 affd, 62 N.Y.2d 684, 476 N.Y.S.2d 535, 465 N.E.2d 42).
The IAS court also properly determined that defendant, as an inspecting engineer for the project, cannot be held liable under Labor Law § 200, a codification of the common-law duty to provide a safe workplace, or in common law negligence, in the absence of a contractual right to control the activity which is...
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...evidence otherwise to indicate that the engineer had the authority to direct or control the work at issue ( see Carter v. Vollmer Assoc., 196 A.D.2d 754, 602 N.Y.S.2d 48 [1993];Sikorski v. Springbrook Fire Dist. of Town of Elma, 225 A.D.2d 1041, 639 N.Y.S.2d 226 [1996] ). To support his Lab......
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