Castellon v. Reinsberg

• Decision Date: 29 March 2011
• Citation: 2011 N.Y. Slip Op. 02447,920 N.Y.S.2d 62,82 A.D.3d 635
• Court: New York Supreme Court — Appellate Division
• Parties: Marcos CASTELLON, et al., Plaintiffs–Respondents,v.John REINSBERG, et al., Defendants,SMI Construction Management, Inc., Defendant Third–Party Plaintiff–Appellant–Respondent,v.Rose Demolition & Carting, Inc., Third–Party Defendant–Respondent–Appellant.[And A Second Third–Party Action].

82 A.D.3d 635

920 N.Y.S.2d 62

2011 N.Y. Slip Op. 02447

Marcos CASTELLON, et al., Plaintiffs–Respondents,

v.John REINSBERG, et al., Defendants,SMI Construction Management, Inc., Defendant Third–Party Plaintiff–Appellant–Respondent,

v.Rose Demolition & Carting, Inc., Third–Party Defendant–Respondent–Appellant.[And A Second Third–Party Action].

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

March 29, 2011.

Litchfield Cavo, LLP, New York, (Michael K. Dvorkin of counsel), for SMI Construction Management, Inc., appellant-respondent.McMahon, Martine & Gallagher, LLP, Brooklyn (Patrick W. Brophy of counsel), for respondent-appellant.Gorayeb & Associates, P.C., New York, (Mark H. Edwards of counsel), for respondents.SAXE, J.P., FRIEDMAN, ACOSTA, DeGRASSE, RICHTER, JJ.

Order, Supreme Court, Bronx County (Mary Ann Brigantti–Hughes, J.), entered September 30, 2009, which, to the extent appealed from, denied defendant SMI Construction Management, Inc.'s (SMI) motion for summary judgment dismissing the complaint and granted plaintiffs' motion for partial summary judgment on liability under Labor Law § 240(1), unanimously modified, on the law, to grant SMI's motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims and to deny plaintiffs' motion, and otherwise affirmed, without costs. Order, same court and Justice, entered April 13, 2010, which, to the extent appealed from, recalled and vacated so much of the 2009 order as had dismissed SMI's third-party action, unanimously reversed, on the law, without costs, and SMI's third-party action dismissed.

Even though SMI's notice of appeal was limited to the granting of plaintiffs' motion for partial summary judgment, we may review unappealed portions of the order that are “inextricably intertwined” with the appealed-from portion ( see Foley v. Roche, 68 A.D.2d 558, 564, 418 N.Y.S.2d 588 [1979] ).

“[A] construction manager is generally not considered a ‘contractor’ or ‘owner’ within the meaning of Section 240(1) or Section 241 of the Labor Law” ( Lodato v. Greyhawk N. Am., LLC, 39 A.D.3d 491, 493, 834 N.Y.S.2d 242 [2007] ). However, “a construction manager ... may be vicariously liable as an agent of the property owner ... where the manager had the ability to control the activity which brought about the injury” ( Walls v. Turner Constr. Co., 4 N.Y.3d 861, 863–864, 798 N.Y.S.2d 351, 831 N.E.2d 408 [2005] ). There are issues of fact as to whether SMI had sufficient control to render it a statutory agent for purposes of Labor Law § 240(1) and § 241 ( see e.g. Paljevic v. 998 Fifth Ave. Corp., 65 A.D.3d 896, 897–898, 885 N.Y.S.2d 65 [2009]; Nienajadlo v. Infomart N.Y., LLC, 19 A.D.3d 384, 385, 797 N.Y.S.2d 504 [2005] ). Therefore, the court should have denied plaintiffs' motion for summary judgment under Labor Law § 240(1); however, it properly denied SMI's motion to dismiss the Labor Law §§ 240(1) and 241 claims.

To the extent that the injured plaintiff's Labor Law § 200 and common-law negligence claims are based on the method of work (e.g., the use of a ladder instead of a scaffold with railings, or the absence of a safety harness), it is undisputed that SMI did not tell him how to do his work; therefore, those claims should have been dismissed ( see e.g. Hughes v. Tishman Constr. Corp., 40 A.D.3d 305, 306–307, 836 N.Y.S.2d 86 [2007] ). Moreover, the injured plaintiff's fall from a ladder that...