Opinion
CA 02-01022
November 15, 2002.
Appeals from an order of Supreme Court, Erie County (Fahey, J.), entered March 26, 2002, which denied the motions of defendants for summary judgment dismissing the amended complaint and cross claims.
HURWITZ FINE, P.C., BUFFALO (KEVIN T. MERRIMAN OF COUNSEL), FOR DEFENDANT-APPELLANT WALBRIDGE ALDINGER COMPANY.
LAW OFFICES OF JOHN QUACKENBUSH, BUFFALO (JOHN WALLACE OF COUNSEL), FOR DEFENDANTS-APPELLANTS LOUIS P. CIMINELLI CONSTRUCTION CO., INC. AND CIMINELLI-COWPER CO., INC.
WILLIAMS WILLIAMS, BUFFALO (ROBERT D. LEARY OF COUNSEL), FOR DEFENDANT-APPELLANT FERGUSON ELECTRIC CONSTRUCTION CO., INC.
LIPSITZ, GREEN, FAHRINGER, ROLL, SALISBURY CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
PRESENT: PIGOTT, JR., P.J., HAYES, KEHOE, BURNS, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motions are granted and the amended complaint and cross claims are dismissed.
Memorandum:
Plaintiffs commenced this action to recover damages for injuries sustained by Deborah A. Bateman (plaintiff) in an industrial accident, alleging claims for common-law negligence and violations of Labor Law §§ 200, 240(1) and § 241(6). Defendants, Walbridge Aldinger Company (Walbridge), Louis P. Ciminelli Construction Co., Inc. and Ciminelli-Cowper Co., Inc. (collectively, Ciminelli) and Ferguson Electric Construction Co., Inc. (Ferguson), each appeal from an order denying their respective motions for summary judgment dismissing the amended complaint and cross claims "without prejudice to renew [following] the completion of discovery."
Supreme Court erred in denying defendants' motions pursuant to CPLR 3212(f). "Plaintiffs failed to demonstrate that facts essential to oppose the motion exist and might be obtained by discovery ( see, CPLR 3212 [f]; Franklin v. Dormitory Auth. of State of N.Y., 291 A.D.2d 854; Maron v. Hillside Children's Ctr., 247 A.D.2d 871)" ( Stevens v. Calspan-Corp., 292 A.D.2d 809, 810; see Waggoner v. Lancet Arch, 291 A.D.2d 831).
We conclude that Walbridge's motion should have been granted. The record establishes that Walbridge did not act, as alleged by plaintiffs, as either a general contractor or an engineering contractor, but instead acted as a construction manager or project coordinator. However, in order for a construction manager or project coordinator to be liable under Labor Law § 240(1) or § 241(6) as a statutory "agent" of the owner, the owner must have delegated to that party the authority to supervise or control the injury-producing work ( see Phillips v. Wilmorite, Inc., 281 A.D.2d 945, 946, citing Russin v. Picciano Son, 54 N.Y.2d 311, 318, and Griffin v. MWF Dev. Corp., 273 A.D.2d 907, 908-909; Olney v. Ciminelli-Cowper Co., 248 A.D.2d 1019; Krick v. Fluor Daniel, 236 A.D.2d 783; Kerr v. Rochester Gas Elec. Corp., 113 A.D.2d 412, 416-417). Here, Walbridge sustained its burden of demonstrating that it had no authority to supervise or control the work. Indeed, such authority was specifically withheld by the terms of the contract between the owner and Walbridge. Plaintiffs failed to raise a triable issue of fact with respect to Walbridge's alleged supervision and control. For the same reasons, and for the additional reasons that Walbridge did not create the dangerous condition and had no actual or constructive notice of it, no liability may be imposed against Walbridge for any alleged common-law negligence or violation of Labor Law § 200 ( see Schultz v. Iwachiw, 284 A.D.2d 980, 981, lv denied in part and dismissed in part 97 N.Y.2d 625; Yong Ju Kim v. Herbert Constr. Co., 275 A.D.2d 709, 712; Krick, 236 A.D.2d 783; see generally Comes v. New York State Elec. Gas Corp., 82 N.Y.2d 876, 877).
We further conclude that the motions of Ciminelli and Ferguson should have been granted. Those defendants demonstrated their entitlement to judgment as a matter of law by establishing their lack of any connection to or involvement in the project on which plaintiff was working when she was injured, and plaintiffs failed to raise a triable issue of fact. Absent any such involvement, Ciminelli and Ferguson lacked the requisite notice or control and thus may not be held liable for any alleged common-law negligence or violation of Labor Law § 200 ( see Schultz, 284 A.D.2d at 981; Yong Ju Kim, 275 A.D.2d at 712; Krick, 236 A.D.2d 783; see generally Comes, 82 N.Y.2d at 877). Further, they may not be subjected to liability as general contractors or subcontractors under Labor Law § 240(1) or § 241(6) ( cf. Mosher v. St. Joseph's Villa, 184 A.D.2d 1000, 1002). Plaintiffs failed to raise a triable question of fact with regard to the involvement of those defendants in the project.