Opinion
606 CA 17–02111
06-08-2018
Gregory P. ROHR, Plaintiff–Respondent, v. James DEWALD, Defendant, and Pumpcrete Corporation, Defendant–Appellant.
CULLEY MARKS TANENBAUM & PEZZULO LLP, ROCHESTER (GLENN E. PEZZULO OF COUNSEL), FOR DEFENDANT–APPELLANT. CELLINO & BARNES, P.C., BUFFALO (PATRICK A. LITTLE OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
CULLEY MARKS TANENBAUM & PEZZULO LLP, ROCHESTER (GLENN E. PEZZULO OF COUNSEL), FOR DEFENDANT–APPELLANT.
CELLINO & BARNES, P.C., BUFFALO (PATRICK A. LITTLE OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting the cross motion in its entirety and dismissing the Labor Law § 241(6) cause of action against defendant Pumpcrete Corporation, and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries that he sustained during a construction accident on property owned by defendant James Dewald. Plaintiff was injured while guiding a concrete pump hose that was attached to a truck owned and operated by defendant Pumpcrete Corporation (Pumpcrete). An obstruction formed in the pump hose, causing wet concrete to suddenly be ejected from the hose and knocking plaintiff off of the scaffolding upon which he was standing. At the time of the accident, plaintiff was working for the general contractor, which had hired Pumpcrete to supply the concrete pumping equipment.
In his complaint, plaintiff asserted causes of action for common-law negligence and violations of Labor Law §§ 240(1) and 241(6). Plaintiff moved for partial summary judgment on liability with respect to the common-law negligence cause of action against Pumpcrete, and Pumpcrete cross-moved for partial summary judgment dismissing the section 240(1) and 241(6) causes of action against it. Plaintiff thereafter stipulated to the dismissal of the section 240(1) cause of action against Pumpcrete, and Supreme Court denied the motion and cross motion. Pumpcrete appeals.
With respect to the Labor Law § 241(6) cause of action against Pumpcrete, we note that, "while under that statute owners and general contractors are generally absolutely liable for statutory violations ..., other parties may be liable under th[at] statute[ ] only if they are acting as the agents of the owner or general contractor by virtue of the fact that they had been given the authority to supervise and control the work being performed at the time of the injury" ( Knab v. Robertson, 155 A.D.3d 1565, 1565–1566, 63 N.Y.S.3d 781 [4th Dept. 2017] [internal quotation marks omitted]; see Trombley v. DLC Elec., LLC , 134 A.D.3d 1343, 1343, 21 N.Y.S.3d 498 [3d Dept. 2015] ; Van Blerkom v. America Painting, LLC , 120 A.D.3d 660, 661, 992 N.Y.S.2d 52 [2d Dept. 2014] ; Krajnik v. Forbes Homes, Inc. , 120 A.D.3d 902, 904, 991 N.Y.S.2d 196 [4th Dept. 2014] ; Johnson v. Ebidenergy, Inc. , 60 A.D.3d 1419, 1421, 875 N.Y.S.2d 677 [4th Dept. 2009] ). Pumpcrete satisfied its initial burden of establishing as a matter of law that it was not an agent of the owner or general contractor by submitting deposition testimony from plaintiff and the Pumpcrete pump operator that Pumpcrete lacked authority to supervise or control plaintiff's work, and plaintiff failed to raise a triable issue of fact in response (see generally Zuckerman v. City of New York , 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). We therefore conclude that the court erred in denying that part of Pumpcrete's cross motion with respect to the Labor Law § 241(6) cause of action, and we modify the order accordingly.
We reject Pumpcrete's contention, however, that it is entitled to summary judgment dismissing the common-law negligence cause of action against it. Although Pumpcrete did not seek that relief in its cross motion, "we may search the record notwithstanding that failure because th[e] [negligence] cause of action was the subject of plaintiff's motion, which placed the issue before the motion court" ( Charter Sch. for Applied Tech. v. Board of Educ. for City Sch. Dist. of City of Buffalo , 105 A.D.3d 1460, 1462, 964 N.Y.S.2d 366 [4th Dept. 2013] ; see generally Mercedes–Benz Credit Corp. v. Dintino , 198 A.D.2d 901, 902, 604 N.Y.S.2d 451 [4th Dept. 1993] ; Bosun's Locker v. Fireman's Fund Ins. Cos. , 147 A.D.2d 907, 908, 537 N.Y.S.2d 377 [4th Dept. 1989] ). Nevertheless, upon searching the record, we conclude that Pumpcrete is not entitled to summary judgment dismissing the negligence cause of action against it because the conflicting expert opinions with respect to that cause of action create triable issues of fact (see Cook v. Peterson , 137 A.D.3d 1594, 1596, 28 N.Y.S.3d 501 [4th Dept. 2016] ; Corbett v. County of Onondaga , 291 A.D.2d 886, 887, 738 N.Y.S.2d 621 [4th Dept. 2002] ).