Zupan v. Irwin Contracting, Inc.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Winslow, J.), entered October 8, 2014, as granted those branches of the separate motions of the defendant Irwin Contracting, Inc., and the defendant Liro Program and Construction Management, PE, PC., which were for summary judgment dismissing so much of the complaint as alleged a violation of Labor Law § 200 and common-law negligence insofar as asserted against each of them.

Ordered that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendant Irwin Contracting, Inc., which was for summary judgment dismissing so much of the complaint as alleged a violation of Labor Law § 200 and common-law negligence insofar as asserted against it, and substituting therefor a provision denying that branch of the motion; as so modified, the

The plaintiff commenced this action to recover damages for injuries he allegedly sustained as a result of a workplace accident that occurred on a construction site. The accident occurred when the plaintiff was carrying a 30-foot long, 200-pound steel rafter beam on his shoulders. As he bent to lower the rafter, he heard his knee “pop,” causing him to fall to the ground and injure his knee. The complaint alleged, inter alia, a violation of Labor Law § 200 and common-law negligence against the general contractor, Irwin Contracting, Inc. (hereinafter Irwin), and against the construction manager, Liro Program and Construction Management, PE, P.C. (hereinafter Liro). At the time of the accident, the plaintiff was employed by nonparty Vision 4, Inc., a subcontractor to Irwin. The Supreme Court granted those branches of the separate motions of Irwin and Liro which were for summary judgment dismissing so much of the complaint as alleged a violation of Labor Law § 200 and common-law negligence insofar as asserted against each of them. The plaintiff appeals..

The Supreme Court properly determined that Liro was entitled to summary judgment dismissing the Labor Law § 200 and common-law negligence claims against it. Where, as here, the plaintiff’s injuries are due to an alleged defect or dangers in the means or methods of how the work was performed, then recovery against a defendant “cannot be had under Labor Law § 200 unless it is shown that the party to be charged had the authority to supervise or control the performance of the work” (Ortega v Puccia, 57 AD3d 54 , 61 [2008]; see Comes v New York State Elec. & Gas Corp., 82 NY2d 876 , 877 [1993]; Torres v St. Francis Coll., 129 AD3d 1058 , 1061-1062 [2015]). Liro demonstrated its prima facie entitlement to judgment as a matter of law by submitting evidence that it had no authority to supervise or control the performance of the plaintiffs work. Liro’s evidence demonstrated that, at most, it had merely general supervisory authority insufficient to impose liability under Labor Law § 200 and common-law negligence (see Comes v New York State Elec. & Gas Corp., 82 NY2d at 877 ; Sandals v Shemtov, 138 AD3d 720 , 721-722 [2016]; Banscher v Actus Lend Lease, LLC, 132 AD3d 707 , 709-710 [2015]; O’Connor v Spencer [1997] Inv. Ltd. Partnership, 2 AD3d 513 , 515 [2003]). In opposition, the plaintiff failed to raise a triable issue of fact

The Supreme Court erred, however, in determining that Irwin was entitled to summary judgment dismissing the Labor Law § 200 and common-law negligence claims against it. The evidence submitted by Irwin in support of its summary judgment motion demonstrated that Irwin supervisors were present at the construction site every day supervising the work, and that these supervisors gave the plaintiff his daily work assignments. The plaintiff testified at his deposition, a transcript of which was submitted in support of Irwin’s motion, that on the date of the accident, an Irwin supervisor assigned him to the task of moving the rafters, unassisted, and instructed the plaintiff to retrieve specific equipment in furtherance of the task. When the plaintiff complained to the supervisor about the manner in which the work was to be performed, the supervisor told him to “just do it.” Conversely, in the deposition testimony of Irwin’s president, also submitted by Irwin in support of its motion, it was asserted that Irwin supervisors did not have the authority to direct the manner in which the plaintiff performed his work; that authority was left solely to a subcontractor, Vision 4, Inc., the plaintiff’s direct employer. Thus, Irwin failed to eliminate triable issues of fact as to whether Irwin had the authority to supervise and control the manner in which the plaintiff performed his work (see Kosinski v Brendan Moran Custom Carpentry, Inc., 138 AD3d 935 , 937 [2016]; Seferovic v Atlantic Real Estate Holdings, LLC, 127 AD3d 1058 , 1060-1061 [2015]; Cruz v Cablevision Sys. Corp., 120 AD3d 744 , 747-748 [2014]). Additionally, the evidence submitted by Irwin raised a question of fact as to whether it was negligent to have only one person perform the task of carrying a 30-foot long, 200-pound steel rafter beam. Thus, Irwin failed to eliminate triable issues of fact as to whether it was negligent in the happening of the accident (see Maraño v Commander Elec., Inc., 12 AD3d 571 , 572-573 [2004]).

Irwin’s submissions also failed to establish, prima facie, that the plaintiff was its special employee for the purpose of precluding the claims under the Workers’ Compensation Law. In furtherance of this argument, which was raised in the alternative, Irwin contended that the evidence demonstrated that it had exclusive control over the plaintiff’s work. Pursuant to Workers’ Compensation Law §§ 11 and 29 (6), an employee injured during the course of his employment is limited to recovering Workers’ Compensation benefits, and is not entitled to bring an action against the employer. This exclusive remedy

As Irwin failed to meet its prima facie burden, we need not consider the sufficiency of the plaintiff’s opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 , 853 [1985]).

Accordingly, the Supreme Court should have denied those branches of Irwin’s motion which were for summary judgement dismissing the Labor Law § 200 and common-law negligence claims asserted against it.

Balkin, J.P., Dickerson, Hinds-Radix and Brathwaite Nelson, JJ., concur.