New York Personal Injury Attorneys Blog

In KARCZ v. KLEWIN BUILDING COMPANY, INC.,et. al., 4th Department, June 10, 2011, The Court affirmed summary judgment for the plaintiff on his 240(1) claim. The plaintiff had lifted a truss overhead onto the aerial platform of a scissor lift. The truss fell on him causing him to suffer injury. In affirming The Court held;

“The truss fell and struck plaintiff because of the absence or inadequacy of a safety device of the kind enumerated in Labor Law § 240 (1) (see Jock v Landmark Healthcare Facilities, LLC, 62 AD3d 1070, 1071-1072; Ullman v Musall, 306 AD2d 813). Thus, “the harm [to plaintiff] flow[ed] directly from the application of the force of gravity” (Runner v NewYork Stock Exch., Inc., 13 NY3d 599, 604). We reject defendants’contention that plaintiff’s actions were the sole proximate cause of the accident. Rather, those actions, insofar as plaintiff may have moved toward the falling truss in an attempt to prevent it fromfalling, raise “at most, an issue of comparative negligence,” which is not an available defense under section 240 (1) (Dean v City of Utica,75 AD3d 1130, 1131).”

For those of you in The 4th Department The Court held that under the circumstances of this case the court rejected defendants’ contention that Labor Law vicarious liability provisions did not apply because plaintiff sustained the injury on an Indian reservation, i.e., that of the Seneca Nation.

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). “