        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1283
CA 13-00955
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND SCONIERS, JJ.


BRIAN RAULS, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

DIRECTV, INC., DEFENDANT-RESPONDENT.


GROSS, SHUMAN, BRIZDLE & GILFILLAN, P.C., BUFFALO (HARRY J. FORREST OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

LEMERY GREISLER LLC, SARATOGA SPRINGS (ROBERT A. LIPPMAN OF COUNSEL),
AND WALSH, ROBERTS & GRACE, BUFFALO, FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Shirley
Troutman, J.), entered September 17, 2012 in a personal injury action.
The order denied the motion of plaintiff for partial summary judgment
on liability under Labor Law § 240 (1) and granted the cross motion of
defendant for summary judgment dismissing the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying those parts of defendant’s
cross motion with respect to the Labor Law §§ 240 (1) and 241 (6)
claims and reinstating those claims, and as modified the order is
affirmed without costs.

     Memorandum: Plaintiff commenced this Labor Law action seeking
damages for injuries he sustained when he slipped and fell while
stepping back onto a ladder from the roof of a residence after
installing a satellite dish thereon. Plaintiff moved for partial
summary judgment on liability under Labor Law § 240 (1), and defendant
cross-moved for summary judgment dismissing the complaint. Supreme
Court denied plaintiff’s motion, granted defendant’s cross motion in
its entirety, and dismissed the complaint. We note at the outset that
plaintiff has abandoned any contention with respect to the propriety
of the court’s dismissal of his Labor Law § 200 claim (see Ciesinski v
Town of Aurora, 202 AD2d 984, 984). We agree with plaintiff, however,
that the court erred in granting those parts of defendant’s cross
motion with respect to the Labor Law §§ 240 (1) and 241 (6) claims,
and we therefore modify the order accordingly.

     Plaintiff established as a matter of law that defendant is a
“contractor” within the meaning of Labor Law §§ 240 (1) and 241 (6),
i.e., that it “ ‘had the power to enforce safety standards and choose
responsible subcontractors’ ” (Mulcaire v Buffalo Structural Steel
Constr. Corp., 45 AD3d 1426, 1428), and defendant failed to raise an
                                 -2-                          1283
                                                         CA 13-00955

issue of fact (see generally Zuckerman v City of New York, 49 NY2d
557, 562). Indeed, it is well established that an entity’s “right to
exercise control over the work denotes its status as a contractor,
regardless of whether it actually exercised that right” (Milanese v
Kellerman, 41 AD3d 1058, 1061; see Ross v Curtis-Palmer Hydro-Elec.
Co., 81 NY2d 494, 500; Mergenhagen v Dish Network Serv. L.L.C., 64
AD3d 1170, 1171-1172). Thus, the Labor Law “holds owners and general
contractors absolutely liable for any breach of the statute even if
the job was performed by an independent contractor over which [they]
exercised no supervision or control” (McCarthy v Turner Constr., Inc.,
17 NY3d 369, 374 [internal quotation marks omitted]). Here, plaintiff
submitted evidence establishing that defendant had the contractual
authority to control the work at issue (see Mergenhagen, 64 AD3d at
1171-1172; Mulcaire, 45 AD3d at 1428). Among other things, the
contract between defendant and plaintiff’s employer required the
latter to comply with defendant’s policies and procedures, provide
training in accordance with specifications provided by defendant, and
utilize materials approved by defendant. Further, the contract
incorporated by reference a manual prepared by defendant that
provided, inter alia, detailed instructions for the installation of
defendant’s satellite equipment, including instructions concerning
safety issues. We thus conclude that, because defendant “had the
authority to choose the part[y] who did the work, and directly entered
into [a] contract[] with th[at party], it had the authority to
exercise control over the work, even if it did not actually do so”
(Williams v Dover Home Improvement, 276 AD2d 626, 626; see Johnson v
Ebidenergy, Inc., 60 AD3d 1419).

     Contrary to plaintiff’s further contention, we conclude that the
court properly denied his motion for partial summary judgment on
liability under Labor Law § 240 (1) inasmuch as he did not establish
as a matter of law that “the absence of or defect in a safety device
was [a] proximate cause of his . . . injuries” (Tronolone v Praxair,
Inc., 22 AD3d 1031, 1033 [internal quotation marks omitted]; see
generally Ellerbe v Port Auth. of N.Y. & N.J., 91 AD3d 441, 442; Arigo
v Spencer, 39 AD3d 1143, 1144-1145). We further conclude in any event
that defendant’s submissions raise an issue of fact whether the sole
proximate cause of the accident was plaintiff’s decision to step onto
a steep, slippery roof in violation of specific safety instructions
(see John v Klewin Bldg. Co., Inc., 94 AD3d 1502, 1503-1504;
Tronolone, 22 AD3d at 1033).




Entered:   January 3, 2014                     Frances E. Cafarell
                                               Clerk of the Court
