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

1373
CA 13-00925
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND WHALEN, JJ.


GARRETT HARGRAVE AND KARI JEAN HARGRAVE,
PLAINTIFFS-APPELLANTS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

LECHASE CONSTRUCTION SERVICES, LLC,
DEFENDANT-RESPONDENT-APPELLANT.


KENNY & KENNY, PLLC, SYRACUSE (MICHAEL P. KENNY OF COUNSEL), FOR
PLAINTIFFS-APPELLANTS-RESPONDENTS.

OSBORN, REED & BURKE, LLP, ROCHESTER (L. DAMIEN COSTANZA OF COUNSEL),
FOR DEFENDANT-RESPONDENT-APPELLANT.


     Appeal and cross appeal from an order of the Supreme Court,
Oswego County (Norman W. Seiter, Jr., J.), entered February 11, 2013.
The order, among other things, denied in part the motion of defendant
for summary judgment.

     It is hereby ORDERED that the order so appealed from is modified
on the law by granting defendant’s motion in its entirety and
dismissing the amended complaint and as modified the order is affirmed
without costs.

     Memorandum: Plaintiffs commenced this Labor Law and common-law
negligence action seeking damages for injuries sustained by Garrett
Hargrave (plaintiff) when he tripped on a piece of old insulation and
fell on a stack of boards on a flat roof. The Penn Yan Central School
District (District) hired defendant as the construction manager on a
capital facilities project at its senior high school, and hired
plaintiff’s employer as the roofing contractor. At the time of his
injury, plaintiff was walking backward on the roof dragging a new
piece of insulation from one section of the roof to another section
where his coworkers were working. Plaintiff testified at his
deposition that a piece of old insulation had blown over from an upper
roof into his path, causing him to trip. Supreme Court granted
defendant’s motion seeking summary judgment dismissing the amended
complaint in part, dismissing only the Labor Law § 240 (1) and § 241
(6) causes of action, and plaintiffs now appeal and defendant cross-
appeals. Plaintiffs raise no issues on appeal with respect to section
240 (1) and thus are deemed to have abandoned any issues with respect
thereto (see Hale v Odd Fellow & Rebekah Health Care Facility, 302
AD2d 948, 949; Ciesinski v Town of Aurora, 202 AD2d 984, 984).
                                 -2-                          1373
                                                         CA 13-00925

     We reject plaintiffs’ contention on their appeal that defendant
was liable pursuant to Labor Law § 241 (6) as an agent of the
District. A construction manager may be liable as an agent of the
owner if “the manager had the ability to control the activity which
brought about the injury” (Walls v Turner Constr. Co., 4 NY3d 861,
863-864). “ ‘Defendant established as a matter of law that it was not
an agent of the owner because the owner had not delegated to it the
authority to supervise and control plaintiff’s work’ ” (Rowland v
Wilmorite, Inc., 68 AD3d 1770, 1770). Pursuant to the express terms
of the contract between defendant and the District, defendant “had no
control over or responsibility for the safety of the workers at the
construction site” (Titus v Kirst Constr., Inc., 43 AD3d 1324, 1325;
see Uzar v Louis P. Ciminelli Constr. Co., Inc., 53 AD3d 1078, 1079;
Bateman v Walbridge Aldinger Co., 299 AD2d 834, 835, lv denied 100
NY2d 502). The deposition testimony and affidavits submitted by
defendant established that defendant acted in accordance with its
authority under the contract, i.e., coordinating the schedules of the
contractors and ensuring that their work complied with the
requirements of the construction documents, and did nothing more.
Plaintiffs failed to raise a triable issue of fact whether defendant
was liable as an agent of the District (see generally Zuckerman v City
of New York, 49 NY2d 557, 562).

     We agree with defendant on its cross appeal that the court erred
in denying those parts of its motion seeking dismissal of the Labor
Law § 200 and common-law negligence causes of action, and we therefore
modify the order by dismissing the amended complaint in its entirety.
“Where the alleged defect or dangerous condition arises from the
contractor’s methods and the owner exercises no supervisory control
over the operation, no liability attaches to the owner under the
common law or under Labor Law § 200” (Comes v New York State Elec. &
Gas Corp., 82 NY2d 876, 877; see McCormick v 257 W. Genesee, LLC, 78
AD3d 1581, 1581). On the other hand, where the “ ‘plaintiff’s
injuries stem not from the manner in which the work was being
performed[ ] but, rather, from a dangerous condition on the premises,
[an owner or] general contractor may be liable in common-law
negligence and under Labor Law § 200 if it has control over the work
site and actual or constructive notice of the dangerous condition’ ”
(Miller v Savarino Constr. Corp., 103 AD3d 1137, 1138). Regardless of
which theory applies here, defendant was not an agent of the owner and
“was not responsible either for the performance of [plaintiff’s] work
or the premises on which that work was undertaken” (id. at 1139).
Defendant therefore met its initial burden with respect to the section
200 and common-law negligence causes of action, and plaintiffs failed
to raise a triable issue of fact (see generally Zuckerman, 49 NY2d at
562).

     All concur except WHALEN, J., who dissents and votes to modify in
accordance with the following Memorandum: I respectfully dissent
because I cannot agree with the majority’s conclusion that plaintiffs
failed to raise a triable issue of fact whether defendant had
supervisory control and authority over the work being done by the
employer of Garrett Hargrave (plaintiff) (see Walls v Turner Constr.
                                   -3-                          1373
                                                           CA 13-00925

Co., 4 NY3d 861, 864).    I therefore conclude that Supreme Court erred
in granting defendant’s   motion with respect to Labor Law § 241 (6) and
properly denied it with   respect to Labor Law § 200 and common-law
negligence, and I would   modify the order accordingly.

     Plaintiffs submitted an affidavit from plaintiff’s former
coworker, who averred that although no safety devices were provided to
the workers, it was his understanding that defendant had the authority
to decide whether they were required. Plaintiff’s coworker further
averred that representatives from defendant would come to the work
site two or three times per week, and that one of the representatives,
“Tom,” would tell him and the other workers to pick up pieces of
debris off the roof and to keep the work area clean. Moreover,
defendant’s project manager testified at his deposition that
defendant’s onsite supervisor, Tom McCormack, would inspect the roof
daily and had the authority to stop unsafe work on the site should
students, faculty, or staff be in danger from the work being
performed. I conclude that a factfinder could reasonably infer that
McCormack was the man identified by plaintiff’s coworker.

     Furthermore, plaintiff’s coworker averred that there was a
separate contractor working on the upper roof, i.e., the area that the
insulation upon which plaintiff tripped came from. In the absence of
any evidence concerning the nature of the relationship between
defendant and that unidentified contractor, a question of fact also
remains whether defendant had “supervisory control and authority over
the work being done” by that contractor (id. at 864). Although
defendant submitted proof that there were no contractors other than
plaintiff’s employer performing roofing work, we must view the
evidence in the light most favorable to plaintiffs, the nonmoving
parties (see Nichols v Xerox Corp., 72 AD3d 1501, 1502).

     Because a question of fact remains whether defendant had
supervisory control over the work on the roof, the court erred in
granting that part of defendant’s motion for summary judgment
dismissing the Labor Law § 241 (6) cause of action (see Walls, 4 NY3d
at 864; Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877).
For the same reason, I conclude that the court properly denied
defendant’s motion with respect to the section 200 and common-law
negligence causes of action (see Comes, 82 NY2d at 877).




Entered:   March 21, 2014                         Frances E. Cafarell
                                                  Clerk of the Court
