Opinion
05-14-2024
Lawrence SIEGEL, Plaintiff, v. DELTA AIRLINES, INC., et al., Defendants–Respondents, V.R.H. Construction Corp., Defendant–Appellant, Parsons Transportation Group, Inc., Defendant.
The Law Office of Erie D. Feldman, New York (Michael J. Kozoriz of counsel), for appellant. Law Office of Nicole E. Lesperance, Elmsford (Peter D. Cantone of counsel), for respondents.
The Law Office of Erie D. Feldman, New York (Michael J. Kozoriz of counsel), for appellant.
Law Office of Nicole E. Lesperance, Elmsford (Peter D. Cantone of counsel), for respondents. Oing, J.P., González, Kennedy, Higgitt, O’Neill Levy, JJ.
Order, Supreme Court, New York County (Francis A. Kahn, III, J.), entered on or about August 3, 2023, which, to the extent appealed from as limited by the briefs, denied defendant V.R.H. Construction Corp.’s motion for summary judgment dismissing the complaint as against it, unanimously modified, on the law, to grant the motion as to the common-law negligence and Labor Law §§ 200 and 241(6) claims, and otherwise affirmed, without costs.
[1] The court correctly denied VRH’s motion as to the Labor Law § 240(1) claim. The evidence submitted by VRH raised issues of fact about whether it was a statutory agent that possessed supervisory control over plaintiff’s work (see Walls v. Turner Constr. Co., 4 N.Y.3d 861, 863–864, 798 N.Y.S.2d 351, 831 N.E.2d 408 [2005]; Goya v. Longwood Hous. Dev. Fund Co., Inc., 192 A.D.3d 581, 583, 146 N.Y.S.3d 59 [1st Dept. 2021]). VRH’s superintendent described VRH as both a construction manager and a general contractor on the project. Moreover, he testified that VRH was responsible for supervising and directing the work, retained subcontractors including plaintiff’s employer, and was solely responsible for all construction means, methods, sequences, and procedures and for coordinating all portions of the work. VRH was also contractually responsible for all of its subcontractors.
[2] The court should have granted VRH’s motion for summary judgment dismissing the common-law negligence and Labor Law § 200 claims as against VRH, since it did not actually exercise supervision or control over the means or methods of plaintiff’s injury-producing work (see Cappabianca v. Skanska USA Bldg. Inc., 99 A.D.3d 139, 144, 950 N.Y.S.2d 35 [1st Dept. 2012]; O’Sullivan v. IDI Constr. Co., Inc., 28 A.D.3d 225, 226, 813 N.Y.S.2d 373 [1st Dept. 2006], affd 7 N.Y.3d 805, 822 N.Y.S.2d 745, 855 N.E.2d 1159 [2006]). The ladder plaintiff used was supplied by his employer, and he received his instractions only from his employer and never dealt with VRH in any way (see Singh v. 1221 Ave. Holdings, LLC, 127 A.D.3d 607, 608, 8 N.Y.S.3d 129 [1st Dept. 2015]).
[3] Plaintiff has expressly abandoned his Labor Law § 241(6) claim (see e.g. Linares v. Massachusetts Mutual Life Ins. Co., 225 A.D.3d 520, 521, 207 N.Y.S.3d 78 [1st Dept. 2024]). Accordingly, the claim should be dismissed.