Rodriguez v. Jmb Architecture Llc

• Decision Date: 15 March 2011
• Citation: 919 N.Y.S.2d 40,2011 N.Y. Slip Op. 01990,82 A.D.3d 949
• Parties: Noe RODRIGUEZ, et al., appellants,v.JMB ARCHITECTURE, LLC, respondent;Builders Choice Concrete Corp., fourth third-party defendant/fifth third-party plaintiff(and other third-party actions).
• Court: New York Supreme Court — Appellate Division

82 A.D.3d 949

919 N.Y.S.2d 40

2011 N.Y. Slip Op. 01990

Noe RODRIGUEZ, et al., appellants,

v.JMB ARCHITECTURE, LLC, respondent;Builders Choice Concrete Corp., fourth third-party defendant/fifth third-party plaintiff(and other third-party actions).

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

March 15, 2011.

Jaghab, Jaghab & Jaghab, P.C., Mineola, N.Y. (Erik J. Gerstenfeld of counsel), for appellants.Milber Makris Plousadis & Seiden, LLP, Woodbury, N.Y. (Joseph V. Cambareri of counsel), for respondent.O'Connor, O'Connor Hintz & Deveney, LLP, Melville, N.Y. (Eileen M. Baumgartner of counsel), for fourth third-party defendant/fifth third-party plaintiff.WILLIAM F. MASTRO, J.P., PETER B. SKELOS, RANDALL T. ENG, and SANDRA L. SGROI, JJ.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Molia, J.), dated February 1, 2010, as granted that branch of the motion of the defendant JMB Architecture, LLC, which was for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs to the respondent.

The plaintiff Noe Rodriguez (hereinafter the injured plaintiff) allegedly was injured when something hit his eye while he was working on the construction of a private residence owned by Joseph Direnzo and Angela Direnzo (hereinafter together the Direnzos). The injured plaintiff's employer, Builders Choice Concrete Corp. (hereinafter Builders Choice), had been hired by the Direnzos to construct a concrete foundation for the residence. The defendant JMB Architecture, LLC (hereinafter JMB), served as the construction manager pursuant to a contract between it and the Direnzos.

After commencing this action against the Direnzos, the plaintiffs moved for leave to amend the complaint to name JMB as a defendant. The Supreme Court granted that motion by order dated November 10, 2009, which was affirmed on a prior appeal to this Court ( see Rodriguez v. Paramount Dev. Assoc., LLC, 67 A.D.3d 767, 888 N.Y.S.2d 595). The amended complaint alleged causes of action against JMB sounding in common-law negligence, and alleging violations of Labor Law §§ 200 and 241(6). Thereafter, the caption was amended to eliminate the Direnzos as named defendants. JMB moved, inter alia, for summary judgment dismissing the complaint. The Supreme Court granted that branch of JMB's motion, and the plaintiffs appeal.

The Supreme Court properly granted that branch of JMB's motion which was for summary judgment dismissing the complaint. Although a construction manager is generally not considered a contractor responsible for the safety of the workers at a construction site pursuant to Labor Law §§ 200 and 241(6), it may nonetheless become responsible if it has been delegated the authority and duties of a general contractor, or if it functions as an agent of the owner of the premises ( see Walls v. Turner Constr. Co., 4 N.Y.3d 861, 798 N.Y.S.2d 351, 831 N.E.2d 408; Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311, 317–318, 445 N.Y.S.2d 127, 429 N.E.2d 805; see also Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 878, 609 N.Y.S.2d 168, 631 N.E.2d 110; Pino v. Irvington Union Free School Dist., 43 A.D.3d 1130, 843 N.Y.S.2d 133). “A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done where a plaintiff is injured” ( Linkowski v. City of New York, 33 A.D.3d 971, 974–975, 824 N.Y.S.2d 109; see Walls v. Turner Constr. Co., 4 N.Y.3d at 863–864, 798 N.Y.S.2d 351, 831 N.E.2d 408; Russin v. Louis N. Picciano & Son, 54 N.Y.2d at 317–318, 445 N.Y.S.2d 127, 429 N.E.2d 805). To impose such liability, the defendant must have the authority to supervise or control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition ( see Linkowski v. City of New York, 33 A.D.3d 971, 824 N.Y.S.2d 109; Damiani v. Federated Dept. Stores, Inc., 23 A.D.3d 329, 331–332, 804 N.Y.S.2d 103). It is not a defendant's title that is determinative, but the degree of control or supervision exercised ( see generally Aranda v. Park E. Constr., 4 A.D.3d 315, 316, 772 N.Y.S.2d 70; see also Armentano v. Broadway Mall Props., Inc., 30 A.D.3d 450, 817 N.Y.S.2d 132; Loiacono v. Lehrer McGovern Bovis, 270 A.D.2d 464, 704 N.Y.S.2d 658).

In opposition to JMB's prima facie showing of entitlement to judgment as a matter of law, the plaintiffs failed to raise a triable issue of fact as to whether JMB was an agent of the owners or a general contractor on the project ( see Russin v. Louis N. Picciano...