Kehoe v. Segal

• Decision Date: 30 May 2000
• Citation: Kehoe v. Segal, 272 AD2d 583, 709 N.Y.S.2d 817 (N.Y. App. Div. 2000)
• Court: New York Supreme Court — Appellate Division
• Parties: JOHN F. KEHOE, Respondent,<BR>v.<BR>GEORGE SEGAL et al., Defendants and Third-Party Plaintiffs, and PAUL KELLOFF, Appellant.<BR>J.C. CONSTRUCTION MANAGEMENT CORPORATION, Third-Party Defendant.

272 A.D.2d 583

709 N.Y.S.2d 817

JOHN F. KEHOE, Respondent,

v. GEORGE SEGAL et al., Defendants and Third-Party Plaintiffs, and PAUL KELLOFF, Appellant.J.C. CONSTRUCTION MANAGEMENT CORPORATION, Third-Party Defendant.

05-30-2000

Bracken, J. P., Joy, Thompson, Goldstein and Feuerstein, JJ., concur.

Ordered that the order is affirmed insofar as appealed from, with costs.

To hold a subcontractor or statutory agent of the owner or general contractor absolutely liable for violations of Labor Law §§ 240 and 241, there must be a showing that the subcontractor had the authority to supervise and control the work giving rise to these duties (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500; Russin v Picciano & Son, 54 NY2d 311, 318). The determinative factor on the issue of control is not whether a subcontractor furnishes equipment but whether it has control of the work being done and the authority to insist that proper safety practices be followed (see, Serpe v Eyris Prods., 243 AD2d 375, 380; Iveson v Sweet Assocs., 203 AD2d 741, 742). Similarly, liability against a subcontractor based upon a claimed violation of Labor Law § 200 and common-law negligence requires a showing that authority was conferred on the subcontractor to supervise and control the activity which produced the injury (see, Rizzuto v Wenger Contr. Co., 91 NY2d 343, 352; Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877; Russin v Picciano & Son, supra, at 317; Goettelman v Indeck Energy Servs., 262 AD2d 958; Rice v City of Cortland, 262 AD2d 770; Mocarska v 200 Madison Assocs., 262 AD2d 163).

Here, there exist issues of fact as to whether the defendant Paul Kelloff was a subcontractor of the...