Opinion
CA 02-02370
March 21, 2003.
Appeal from an order of Supreme Court, Erie County (Notaro, J.), entered August 13, 2002, which denied the motion of defendant Kirst Construction, Inc. for summary judgment dismissing the complaint and cross claims against it.
KAMYSZ, O'NEILL, CANTWELL FEELEY, BUFFALO (EARL K. CANTWELL, II, OF COUNSEL), FOR DEFENDANT-APPELLANT.
CELLINO BARNES, P.C., BUFFALO (JASON H. STERNE OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
PRESENT: PINE, J.P., WISNER, SCUDDER, KEHOE, AND BURNS, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Supreme Court properly denied the motion of Kirst Construction, Inc. (defendant) for summary judgment dismissing the complaint and cross claims against it. Labor Law § 241(6) "imposes liability upon a general contractor for the negligence of a subcontractor, even in the absence of control or supervision of the worksite" (Rizzuto v. Wenger Contr. Co., 91 N.Y.2d 343, 348-349 [emphasis omitted]; see Kane v. Coundorous, 293 A.D.2d 309, 310-311), and here there is an issue of fact whether defendant was acting as a general contractor to render it subject to liability under section 241(6).