Sabato v. New York Life Ins. Co.

• Decision Date: 08 March 1999
• Parties: 1999 N.Y. Slip Op. 2148 Alexander SABATO, plaintiff-respondent, v. NEW YORK LIFE INSURANCE COMPANY, et al., defendants-respondents, J.T. Falk & Company, Inc., et al., appellants (and a third-party action).
• Court: New York Supreme Court — Appellate Division

Page 465

686 N.Y.S.2d 465

1999 N.Y. Slip Op. 2148

Alexander SABATO, plaintiff-respondent, v. NEW YORK LIFE INSURANCE COMPANY, et al., defendants-respondents J.T. Falk & Company, Inc., et al., appellants (and a third-party action).

Supreme Court, Appellate Division Second Department.

March 8, 1999.

Ted M. Tobias, Melville, N.Y. (Gary Austin Manso of counsel), for appellant J.T. Falk & Company, Inc.

Kroll, Rubin & Fiorella, LLP, Mineola, N.Y. (Stanley E. Orzechowski of counsel), for appellant Colgate Scaffolding Corp.

Carole A. Burns & Associates, Mineola, N.Y. (Anthony W. Russo and John Koester of counsel), for defendant-respondent New York Life Insurance Company.

FRED T. SANTUCCI, J.P., DANIEL W. JOY, WILLIAM D. FRIEDMANN and GLORIA GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the defendants J.T. Falk & Company, Inc., and Colgate Scaffolding Corp. separately appeal from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated November 20, 1997, as denied their respective motions for summary judgment dismissing the complaint and all other claims insofar as asserted against them.

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs, the motions are granted, the complaint and all other claims are dismissed insofar as asserted against the appellants, and the action against the remaining defendants is severed.

The defendant H.C. Kranichfeld, Inc. (hereinafter Kranichfeld), was hired by the defendant New York Life Insurance Company (hereinafter New York Life), the owner of certain premises, to serve as the general contractor for the erection of a chimney stack. Kranichfeld subcontracted various aspects of the chimney project to several different subcontractors, including Colgate Scaffolding Corp. (hereinafter Colgate), which furnished and erected a fixed pipe scaffolding, J.T. Falk & Company (hereinafter J.T. Falk), hired for the erection of the metal chimney stack, and masons Nicholson & Galloway, Inc. (hereinafter Nicholson), hired for the installation of a brick chimney around the metal chimney stack. Nicholson was also performing ongoing waterproofing and restoration work with regard to the window and brick exterior surface (hereinafter the restoration project).

The plaintiff, Alexander Sabato, was employed by Nicholson as a foreman and job site mechanic for the restoration project. The plaintiff was injured when an object fell from above and hit him in the back. Thus, at the time of the plaintiff's accident, two separate projects were ongoing at the site, both of which involved the plaintiff's employer, Nicholson.

In the instant action, the plaintiff alleged negligence and violations of Labor Law §§ 200, 240(1), and § 241(6). J.T. Falk and Colgate separately moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court denied the motions.

J.T. Falk and Colgate are entitled to dismissal of so much of the complaint as alleged negligence and a violation of Labor Law § 200, and all other claims based upon them, because an "implicit precondition" to the duty to provide construction site workers with a safe place to work is that the party charged with such responsibility have the authority to control the activity bringing about the injury (see, Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 609 N.Y.S.2d 168, 631 N.E.2d 110; D'Amico v. New York Racing Assn., 203 A.D.2d 509, 611 N.Y.S.2d 252). Here, J.T. Falk and Colgate did not exercise any degree of supervisory control over the plaintiff's restoration project activities.

For the same reason, so much of the complaint as alleged violations of Labor Law § 240(1) and § 241(6) and all other claims based upon them should be dismissed insofar as asserted against the appellants. It is axiomatic that...