Lickers v. Albert Elia Building Co.

105 A.D.2d 1069, 482 N.Y.S.2d 596, 1984 N.Y. App. Div. LEXIS 21149

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 7, 1984
• Status: Published

Opinion

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 Dickers’ employer. Inasmuch as Dickers 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 NY2d 311, 318; Kopacz v Airo Carbon, 104 AD2d 722; Kenny v Fuller Co., 87 AD2d 183, mot for lv to app den 58 NY2d 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 of the Labor Law and that the violation was the proximate cause of Howard Dickers’ injury (see Smith v Hooker Chems. & Plastics Corp., 89 AD2d 361, app dsmd 58 NY2d 824). In that regard there are factual issues with respect to the sufficiency of the safety devices available to Dickers; 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. (Appeal from order of Supreme Court, Niagara County, McGowan, J. — summary judgment.) Present — Dillon, P. J., Callahan, Doerr, Denman and O’Donnell, JJ.