Opinion
May 30, 2000
In an action to recover damages for personal injuries, the defendant Paul Kelloff appeals from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated June 25, 1999, as denied his motion for summary judgment dismissing the complaint insofar as asserted against him.
Before: Bracken, J.P., Joy, Thompson, Goldstein and Feuerstein, JJ.
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 N.Y.2d 494, 500; Russin v. Picciano Son, 54 N.Y.2d 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 A.D.2d 375, 380; Iveson v. Sweet Assocs., 203 A.D.2d 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 N.Y.2d 343, 352; Comes v. New York State Elec. Gas Corp., 82 N.Y.2d 876, 877; Russin v. Picciano Son, supra, at 317; Goettelman v. Indeck Energy Servs., 262 A.D.2d 958; Rice v. City of Cortland, 262 A.D.2d 770; Mocarska v. 200 Madison Assocs., 262 A.D.2d 163).
Here, there exist issues of fact as to whether the defendant Paul Kelloff was a subcontractor of the third-party defendant, J.C. Construction Management Corporation, and whether he had the authority to exercise supervision and control over the activity which produced the plaintiff's injury.