Nascimento v. Bridgehampton Constr. Corp..

• Decision Date: 02 June 2011
• Citation: 86 A.D.3d 189,2011 N.Y. Slip Op. 04607,924 N.Y.S.2d 353
• Parties: Raimundo NASCIMENTO, Plaintiff–Respondent,v.BRIDGEHAMPTON CONSTRUCTION CORP., et al., Defendants,Bayview Building & Framing Corp., Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

86 A.D.3d 189

924 N.Y.S.2d 353

2011 N.Y. Slip Op. 04607

Raimundo NASCIMENTO, Plaintiff–Respondent,

v.BRIDGEHAMPTON CONSTRUCTION CORP., et al., Defendants,Bayview Building & Framing Corp., Defendant–Appellant.

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

June 2, 2011.

Fischetti & Pesce, LLP, Garden City (John E. McLoughlin of counsel), for appellant.The Durst Law Firm, P.C., New York (John E. Durst, Jr., of counsel), for respondent.RICHARD T. ANDRIAS, J.P. DAVID B. SAXE KARLA MOSKOWITZ ROLANDO T. ACOSTA HELEN E. FREEDMAN, JJ.SAXE, J.

This appeal brings up questions concerning subcontractor liability under the Labor Law's strict liability provisions.

Plaintiff was injured while employed as a laborer for what amounts to a sub-sub-subcontractor on a renovation project: the general contractor, defendant Bridgehampton Construction Co., subcontracted the framing work to defendant Bayview Building and Framing Corp., the appellant here, which in turn subcontracted that work to defendant R & L Carpentry Corp., which further subcontracted the work to defendant Figueiredo Construction, plaintiff's employer.

In response to a motion by plaintiff for summary judgment on the issue of liability under Labor Law §§ 240(1) and 241(6), Bayview cross-moved for summary judgment dismissing plaintiff's Labor Law claims as against itself. Bayview's position was that it did not have the authority to coordinate or supervise the work in order to control worker safety at the work site. It further argued that plaintiff's motion for summary judgment on the issue of Labor Law liability should be denied, inasmuch as differing witness testimony creates a question of fact as to whether the Labor Law was violated, and necessitates further discovery. Specifically, while plaintiff asserted that he fell into the basement while descending a ladder from a 14–foot–high platform which would become the first floor of the house, when the extended portion of the extension ladder, unsecured to the platform, slid down, an observer said he “saw a workman fall from the rafters” and “[t]here was no ladder in the area where the workman had fallen from.”

The motion court granted plaintiff's motion, and denied Bayview's cross motion.

Initially, we agree with the motion court that the difference between the witnesses' factual recitations does not create a material issue of fact as to whether Labor Law § 240(1) was violated. A violation of Labor Law § 240(1) is stated whether plaintiff's fall was caused by an unsecured extension ladder that slipped or malfunctioned ( Dowling v. McCloskey Community Servs. Corp., 45 A.D.3d 1232, 847 N.Y.S.2d 249 [2007] ), or whether it happened because he was required to work on rafters without safety devices protecting him from a fall through the open space to the basement area below ( see Angamarca v. New York City Partnership Hous. Dev. Fund Co., Inc., 56 A.D.3d 264, 866 N.Y.S.2d 659 [2008] ).

Nor may Bayview avoid summary judgment under Labor Law § 240(1) by suggesting that discovery is still necessary.

“[W]hile determination of a summary judgment motion may be delayed to allow for further discovery where evidence necessary to oppose the motion is unavailable to the opponent, [a] determination of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence”

( Anne Koplick Designs, Inc. v. Lite, 76 A.D.3d 535, 536, 906 N.Y.S.2d 331 [2010] [citation and internal quotation marks omitted] ). Bayview failed to provide a basis for the claim that further discovery would lead to additional relevant evidence.

Bayview argues that summary judgment on a Labor Law § 240(1) case must be denied where there are conflicting versions of the accident. However, the cases it relies on are inapposite; all of them address inconsistencies in the plaintiff's various versions of the events, creating a need for cross-examination and justifying a challenge to his credibility ( see Saaverda v. East Fordham Rd. Real Estate Corp., 233 A.D.2d 125, 649 N.Y.S.2d 416 [1996]; Colazo v. Tower Assoc., 209 A.D.2d 339, 619 N.Y.S.2d 547 [1994]; Wilson v. Haagen–Dazs Co., 215 A.D.2d 338, 627 N.Y.S.2d 41 [1995], lv. dismissed 86 N.Y.2d 838, 634 N.Y.S.2d 446, 658 N.E.2d 224 [1995] ).

However, with regard to whether there was a violation of a particular Industrial Code provision as a predicate for liability under Labor Law § 241(6), the differing factual assertions as to how the accident occurred do preclude a determination as a matter of law, and in that respect, a grant of summary judgment was improper.

A more complex question is raised by Bayview's contention that as a subcontractor rather than the general contractor, it was entitled to summary judgment dismissing the claim against it because it did not have the authority to oversee the work plaintiff was performing or the site's safety conditions. In opposition to this contention, plaintiff argues that all subcontractors in the “chain of command” must be as liable as the general contractor.

Initially, we reject plaintiff's broad assertion; the law does not hold that all subcontractors in the “chain of command” are necessarily as liable as the general contractor. Rather, as a subcontractor rather than the general contractor, Bayview may be held liable for plaintiff's injuries under Labor Law §§ 240(1) and 241(6) only if it had the authority to supervise and control the work giving rise to the obligations imposed by these statutes, which would render it the general contractor's statutory agent ( Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311, 317–318, 445 N.Y.S.2d 127, 429 N.E.2d 805 [1981]; Murphy v. Herbert Constr. Co., 297 A.D.2d 503, 747 N.Y.S.2d 439 [2002]; Vieira v. Tishman Constr. Corp., 255 A.D.2d 235, 679 N.Y.S.2d 618 [1998] ). To be treated as a statutory agent, the subcontractor must have been “delegated the supervision and control either over the specific work area involved or the work which [gave] rise to the injury” ( Headen v. Progressive Painting Corp., 160 A.D.2d 319, 320, 553 N.Y.S.2d 401 [1990] ). If the subcontractor's area of authority is over a different portion of the work or a different area than the one in which the plaintiff was injured, there can be no liability under this theory ( see Sabato v. New York Life Ins. Co., 259 A.D.2d 535, 686 N.Y.S.2d 465 [1999]; Headen, 160 A.D.2d at 319, 553 N.Y.S.2d 401).

Subcontractors have been held to be the statutory agents of general contractors in situations in which provisions of the subcontracts explicitly granted supervisory authority ( see Weber v. Baccarat, Inc., 70 A.D.3d 487, 488, 896 N.Y.S.2d 12 [2010]; Nephew v. Klewin Bldg. Co., 21 A.D.3d 1419, 1421, 804 N.Y.S.2d 157 [2005] ), and those in which evidence showed that the subcontractors actually exercised supervisory authority ( see Everitt v. Nozkowski, 285 A.D.2d 442, 444, 728 N.Y.S.2d 58 [2001] ). Additionally, evidence that a subcontractor delegated the requisite supervision and control to another subcontractor has been cited as forming part of the proof that the first subcontractor formerly possessed that authority, and may justify imposing Labor Law liability on the first subcontractor as a statutory agent of the general contractor ( see Weber v. Baccarat, 70 A.D.3d at 488, 896 N.Y.S.2d 12; Everitt v. Nozkowski, 285 A.D.2d at 444, 728 N.Y.S.2d 58).

In Weber, the plaintiff fell from a defective ladder while installing an HVAC system. This Court found that the plaintiff was entitled to summary judgment against the HVAC subcontractor, King Freeze, because “King Freeze had the authority to supervise and control the work being done by plaintiff pursuant to the terms of its subcontract with IDI. Moreover, it demonstrated this authority by subcontracting a portion of the HVAC work to plaintiff's employer” (70 A.D.3d at 488, 896 N.Y.S.2d 12 [citations...