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“COME ON EILEEN” LIABILITY UNDER LABOR LAW SECTIONS 240(1) AND 241(6) CANNOT ATTACH TO A TENANT THAT DOES NOT CONTRACT FOR OR DIRECT WORK.

March 27, 2019 • Posted By • Construction Claims

Rizzo v. 165 Eileen Way, LLC

 169 A.D.3d 943, 94 N.Y.S.3d 157 (2nd Dept. 2019)

 This action was brought by plaintiff for injuries he sustained in a fall from a scaffold while hanging sheetrock to soundproof a wall between a law office and a sports facility, 165 Eileen Way Sports, LLC (“Sports”). After construction of Sports’ facility was completed, the neighboring law office complained to the building owner, 165 Eileen Way LLC (“Owner”), that noise from the facility was disruptive to its business. The Owner rehired the contractor that built Sports’ facility, Rosner Construction LLC (“Rosner”), to soundproof the wall, which was done on Sport’s side. Rosner subcontracted the work to plaintiff’s employer, and it was during this work plaintiff was injured.

 Plaintiff brought suit against the Owner, Sports, and Rosner, premised in common-law negligence and violations of Labor Law  200, 240(1), and 241(6).  The Owner asserted cross-claims against Rosner for common-law and contractual indemnification, and Sports asserted a cross-claims for common-law indemnification. Rosner and Sports also brought a third-party action against plaintiff’s employer, who defaulted.

 After discovery was complete Sports moved for summary judgment dismissing the complaint against it, and for judgment on its cross-claims against Rosner.  The Owner moved for summary judgment dismissing the common-law negligence and Labor Law § 200 claims against it, and on its cross-claims against Rosner for common-law and contractual indemnification. Rosner moved for summary judgment dismissing the Owner’s and Sport’s cross-claims against it.  The Trial Court dismissed the claims against the Owner and Sports premised in common-law negligence and Labor Law § 200, but denied that part of Sports’ motion to dismiss the Labor Law §§ 240(1) and 241(6) claims. It also denied all motions for summary judgement on the cross-claims. 

 On appeal, The Second Department held that the obligations of Labor Law 240(1) and 241(6) apply to owners and contractors, and their agents, and that tenants who either contract for or supervise work may be held liable, but tenants who neither contract nor supervise work performed in their leased premises cannot be held liable for violations of Labor Law §§ 240(1) or 241(6). 

 This would absolve Sports from liability, but the Court then held that there was an issue of fact as to whether Sports was involved in contracting for the work, so Sports was still in.  But only until the next paragraph! The Second Department then reversed the Supreme Court’s denial of Sports’ (and the Owner’s) motions for summary judgment on their cross-claims against Rosner, holding that they successfully established that any liability was statutory and vicarious, and they demonstrated, prima facie, that Rosner directed, supervised or controlled the work.  

 

Published by 

Beth Rex, Esq.