In New York Construction Accident Court Holds Question of Fact as To Whether Sub-Contractor Statutory Agent

In Nascimento v Bridgehampton Constr. Corp., New York Appellate Division, First Department, June 2, 2011, The Court dealt with the oft presented question as to whether a sub-contractor was a statutory agent of the general contractor for purposes of liability pursuant to New York Labor Law Sections 240(1) and 241(6). The facts of the case may be found by clicking on the decision above. What is interesting about this case is that it presents an excellent review of the law regarding this much litigated area which the Court discussed as follows:

“Initially, we reject plaintiff’s broad assertion; the law does not hold that all subcontractors in the “chain of command” are necessarily as liable as the general contractor. Rather, as a subcontractor rather than the general contractor, Bayview may be held liable for plaintiff’s injuries under Labor Law §§ 240(1) and 241(6) only if it had the authority to supervise and control the work giving rise to the obligations imposed by these statutes, which would render it the general contractor’s statutory agent (Russin v Louis N. Picciano & Son, 54 NY2d 311, 317-318 [1981]; Murphy v Herbert Constr. Co., 297 AD2d 503 [2002]; Vieira v Tishman Constr. Corp., 255 AD2d 235 [1998]). To be treated as a statutory agent, the subcontractor must have been “delegated the supervision and control either over the specific work area involved or the work which [gave] rise to the injury” (Headen v Progressive Painting Corp., 160 AD2d 319, 320 [1990]). If the subcontractor’s area of authority is over a different portion of the work or a different area than the one in which the plaintiff was injured, there can be no liability under this theory (see Sabato v New York Life Ins. Co., 259 AD2d 535 [1999]; Headen, 160 AD2d at 319).

Subcontractors have been held to be the statutory agents of general contractors in situations in which provisions of the subcontracts explicitly granted supervisory authority (see Weber v Baccarat, Inc., 70 AD3d 487, 488 [2010]; Nephew v Klewin Bldg. Co., 21 AD3d 1419, 1421 [2005]), and those in which evidence showed that the subcontractors actually exercised supervisory authority (see Everitt v Nozkowski, 285 AD2d 442, 444 [2001]). Additionally, evidence that a subcontractor delegated the requisite supervision and control to another subcontractor has been cited as forming part of the proof that the first subcontractor formerly possessed that authority, and may justify imposing Labor Law liability on the first subcontractor as a statutory agent of the general contractor (see Weber v Baccarat, 70 AD3d at 488; Everitt v Nozkowski, 285 AD2d at 444). ”

The New York Construction Accident Lawyers at Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf have years of experience representing construction workers who have suffered injury and /or death in construction accidents in New York.