Opinion
November 7, 1984
Appeal from the Supreme Court, Niagara County, McGowan, J.
Present — Dillon, P.J., Callahan, Doerr, Denman and O'Donnell, JJ.
Order unanimously affirmed, with costs. Memorandum: High Steel Structures, Inc. was entitled to summary judgment dismissing this personal injury action under the Labor Law. It is undisputed that High Steel, the principal subcontractor, subcontracted erection of the structural steel to Whale Riggers and Erectors, Inc., Howard Lickers' employer. Inasmuch as Lickers has asserted no facts to suggest that High Steel had authority to supervise and control either his activities or the work site, the complaint was properly dismissed against that defendant (see Russin v Picciano Son, 54 N.Y.2d 311, 318; Kopacz v Airco Carbon, 104 A.D.2d 722; Kenny v Fuller Co., 87 A.D.2d 183, mot for lv to app den. 58 N.Y.2d 603). Plaintiffs' motion for partial summary judgment against Albert Elia Building Co. (Elia), the general contractor, was properly denied. As the general contractor, Elia is absolutely liable regardless of the degree of its control over the work provided that plaintiffs can establish that there has been a violation of section 240 Lab. of the Labor Law and that the violation was the proximate cause of Howard Lickers' injury (see Smith v Hooker Chems. Plastics Corp., 89 A.D.2d 361, app dsmd 58 N.Y.2d 824). In that regard there are factual issues with respect to the sufficiency of the safety devices available to Lickers; whether he could have used the safety devices without impairing his ability to perform the tasks to which he was assigned; whether the safety devices were placed so as to give him proper protection; and whether the scaffold on which he was working was more than 20 feet from the ground.