Plaintiffs rely on three First Department cases, which appear to hold that evidence that an owner or general contractor had a safety coordinator on site with the authority to stop work if a dangerous condition arose is sufficient to create a genuine issue of material fact as to whether the owner or general contractor exercised the level of supervision necessary for Section 200 or common-law negligence liability to attach. See Gawel v. Consolidated Edison Co., 237 A.D.2d 138, 138-39 (1st Dep't 1997);Freitas v. N.Y.C. Transit Auth., 249 A.D.2d 184, 186 (1st Dep't 1998); Bush v. Gregory, 308 A.D.2d 360, 361 (1st Dep't 2003). However, the First Department itself has explicitly repudiated these decisions, noting specifically that they "deviate[d]" from the "well-settled principle" that "liability under Labor Law § 200 or for common-law negligence may only be imposed on a general contractor or construction manager who controls the manner in which the plaintiff performed his or her work."
Sacks and Sacks, LLP, New York City ( Scott N. Singer of counsel), for appellant. I. The Appellate Division erred in dismissing plaintiff's claim under Labor Law § 241 (6). ( Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Dodge v City of Hornell Indus. Dev. Agency, 286 AD2d 902; Greenidge v HRH Constr. Corp., 279 AD2d 400; Baker v International Paper Co., 226 AD2d 1007; Corsaro v Mt. Calvary Cemetery, 227 AD2d 957; Corsaro v Mt. Calvary Cemetery, 214 AD2d 950; Gielow v Coplon Home, 251 AD2d 970; Favia v Weatherby Constr. Corp., 26 AD3d 165; Alvia v Teman Elec. Contr., 287 AD2d 421.) II. Plaintiff's claim under Labor Law § 200 should be reinstated. ( Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539; Rice v Board of Educ. of City of N.Y., 302 AD2d 578; Lombardi v Stout, 80 NY2d 290; Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343; Gawel v Consolidated Edison Co. of N.Y., 237 AD2d 138; Freitas v New York City Tr. Auth., 249 AD2d 184.)
Claims under the statute and common-law fall into two general categories: "those arising from an alleged defect or dangerous condition existing on the premises and those arising from the manner in which the work was performed" ( Cappabianca v. Skanska USA Bldg. Inc., 99 A.D.3d 139, 144, 950 N.Y.S.2d 35 [1st Dept. 2012] ). "In order to prove liability [under the latter prong,] a plaintiff must show that the owner or agent have the authority to control the activity bringing about the injury to enable it to avoid or correct any unsafe condition" ( Lemache v. MIP One Wall Street Acquisition, 190 A.D.3d 422, 423, 139 N.Y.S.3d 185 [1st Dept. 2021], citing Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 352, 670 N.Y.S.2d 816, 693 N.E.2d 1068 [1998] ; see alsoGawel v. Consolidated Edison Co. of N.Y., 237 A.D.2d 138, 655 N.Y.S.2d 351 [1st Dept. 1997] ). The record established that Halmar performed defective work, in that it improperly constructed the formwork by using an insufficient quantity of anchors and installing them improperly.
Claims under the statute and common-law fall into two general categories: "those arising from an alleged defect or dangerous condition existing on the premises and those arising from the manner in which the work was performed" (Cappabianca v Skanska USA Bldg. Inc., 99 A.D.3d 139, 144 [1st Dept 2012]). "In order to prove liability [under the latter prong, ] a plaintiff must show that the owner or agent have the authority to control the activity bringing about the injury to enable it to avoid or correct any unsafe condition" (Lemache v MIP One Wall Street Acquisition, 190 A.D.3d 422, 423 [1st Dept 2021], citing Rizzuto v L.A. Wenger Contr. Co., 91 N.Y.2d 343, 352 [1998]; see also Gawel v Consolidated Edison Co. of N.Y., 237 A.D.2d 138 [1st Dept 1997]). The record established that Halmar performed defective work, in that it improperly constructed the formwork by using an insufficient quantity of anchors and installing them improperly.
Claims under the statute and common-law fall into two general categories: "those arising from an alleged defect or dangerous condition existing on the premises and those arising from the manner in which the work was performed" ( Cappabianca v. Skanska U.S. Bldg. Inc., 99 A.D.3d 139, 144, 950 N.Y.S.2d 35 [1st Dept. 2012] ). In order to prove liability under the latter prong, a plaintiff must show that the owner or agent have the authority to control the activity bringing about the injury to enable it to avoid or correct any unsafe condition (seeRizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 352, 670 N.Y.S.2d 816, 693 N.E.2d 1068 [1998] ); Gawel v. Consolidated Ed. Co., 237 A.D.2d 138, 655 N.Y.S.2d 351 [1st Dept. 1997] ). The testimony of defendant's onsite superintendent raises a triable issue of fact as to whether Gilbane had the authority to control the activity bringing about the injury (see Rizzuto, 91 N.Y.2d at 352, 670 N.Y.S.2d 816, 693 N.E.2d 1068 ).
On the other hand, the section 241 (6) cause of action raises triable issues of fact. Plaintiff abandoned any reliance on the various provisions of the Industrial Code cited in his bill of particulars by failing to address them either in the motion court or on appeal, except for Industrial Code (12 NYCRR) § 23-3.3 (c), which mandates regular inspections "to detect any hazards to any person resulting from weakened or deteriorated floors or walls or from loosened material" during "hand demolition operations," and further requires that protection against any such discovered hazards be provided by "shoring, bracing or other effective means." We have held that section 23-3.3 (c) creates a specific standard of care, violation of which can establish liability under Labor Law § 241 (6) ( see Gawel v Consolidated Edison Co. of N.Y., 237 AD2d 138). Plaintiff established that defendant violated the rule by failing to designate an individual to conduct the required inspections, and that the "loosened material" language of the rule could cover the electrical panel allegedly improperly secured to the wall. It is not possible to discern on this record whether the work being performed at the building amounted to "demolition" within the general meaning of Industrial Code § 23-3.3, or whether any specific violation of section 23-3.3 (c) was the proximate cause of plaintiff's injuries. "Demolition" is defined in the Code as "work incidental to or associated with the total or partial dismantling or razing of a building or other structure including the removing or dismantling of machinery or other equipment" ( 12 NYCRR 23-1.4 [b] [16]).
liability under Labor Law § 200 or for common-law negligence]). That Tishman, Site Safety, or both, may have had the authority to stop work for safety reasons is insufficient to raise a triable issue of fact with respect to whether Tishman exercised the requisite degree of supervision and control over the work being performed to sustain a claim under Labor Law § 200 or for common-law negligence ( see Peay v New York City School Constr. Auth., 35 AD3d 566, 567; Singh v Black Diamonds LLC, 24 AD3d 138, 140; Carney v Allied Craftsman Gen. Contrs., Inc., 9 AD3d 823, 825; Dalanna, supra; Reilly v Newireen Assoc., 303 AD2d 214, 220-221, lv denied 100 NY2d 508; Buccini v 1568 Broadway Assoc., 250 AD2d 466, 468). Admittedly, our case law on this issue is not consistent ( compare Singh, supra; Dalanna, supra; Reilly, supra, and Buccini, supra; with Brennan v 42nd St. Dev. Project, Inc., 10 AD3d 302; Bush v Gregory/Madison Ave., 308 AD2d 360; Freitas v New York City Tr. Auth., 249 AD2d 184, and Gawel v Consolidated Edison Co. of N.Y., 237 AD2d 138). The Buccini line of cases, however, comports with the overarching principle that liability under Labor Law § 200 or for common-law negligence may only be imposed on a general contractor or construction manager who controls the manner in which the plaintiff performed his or her work.
Turning to the Labor Law § 241 (6) claim, we conclude that the court properly denied that part of defendant's motion that sought summary judgment dismissing that claim insofar as it is predicated on the alleged violation of 12 NYCRR 23-3.3 (b) (3) and (c). Those Industrial Code provisions are sufficiently specific to support a Labor Law § 241 (6) claim and are applicable to the facts herein ( see Sierzputowski, 14 AD3d at 607; Salinas v. Barney Skanska Constr. Co., 2 AD3d 619, 622; Bald v. Westfield Academy Cent. School, 298 AD2d 881, 882; Gawel v. Consolidated Edison Co. of N.Y., 237 AD2d 138). We further conclude, however, that the court should have dismissed the Labor Law § 241 (6) claim insofar as it is predicated on the alleged violation of 12 NYCRR 23-1.7 (a) and 23-3.2 (b), and we therefore further modify the order accordingly.
There are triable issues as to whether the injured plaintiff had been hired by third-party defendant prior to the accident, which occurred during sheetrock installation. The court also properly declined to dismiss the cause of action pursuant to Labor Law § 200 in light of remaining issues as to the extent of supervision, direction and control exercised by Argus at the work site ( see Gawel v. Consolidated Edison Co. of N.Y., 237 AD2d 138). Moreover, in light of these issues, the Argus/Adler motion for summary judgment on the third-party claim for a conditional order of contractual indemnification was properly denied ( see Sheehan v. Fordham Univ., 259 AD2d 328).
Before: Nardelli, J.P., Tom, Ellerin, Lerner, Friedman, JJ. At the time plaintiff Sylvester Thomas was struck by a falling length of pipe, he was physically participating in the operation to unfasten and remove that pipe from the ceiling (cf. Roberts v.General Elec. Co., 97 N.Y.2d 737, and Narducci v. Manhasset Bay Assocs., 96 N.Y.2d 259). The primary issues are whether, given the nature of the injury-producing work, provision of a hoisting or securing device of the kind enumerated in Labor Law § 240(1) would have been necessary or expected and whether the absence of such safety devices was a substantial cause of plaintiff's harm. Questions of fact preclude summary disposition of these issues as well as plaintiff's claims for common-law negligence as codified in Labor Law § 200, and his claim under Labor Law § 241(6) related to possible Industrial Code violations (see Gawel v. Consolidated Edison Co. of New York, 237 A.D.2d 138). The third-party action for contractual indemnification is similarly dependent on factual determinations as to the third-party plaintiff's freedom from negligence (Itri Brick Corp. v. Aetna Cas. Sur. Co., 89 N.Y.2d 786, 795). Motion seeking stay denied.