Mitchell v. Howe

Appellate Division of the Supreme Court of New York

Mitchell v. Howe

303 A.D.2d 1001, 756 N.Y.S.2d 802, 2003 N.Y. App. Div. LEXIS 3018

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 21, 2003

StatusPublished

This text of 303 A.D.2d 1001 (Mitchell v. Howe) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mitchell v. Howe, 303 A.D.2d 1001, 756 N.Y.S.2d 802, 2003 N.Y. App. Div. LEXIS 3018 (N.Y. Ct. App. 2003).

Pincite

Opinion

—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.

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 NY2d 343, 348-349 [1998] [emphasis omitted]; see Kane v Coundorous, 293 AD2d 309, 310-311 [2002]), 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). Present — Pine, J.P., Wisner, Scudder, Kehoe and Burns, JJ.

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—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.

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 NY2d 343, 348-349 [1998] [emphasis omitted]; see Kane v Coundorous, 293 AD2d 309, 310-311 [2002]), 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). Present — Pine, J.P., Wisner, Scudder, Kehoe and Burns, JJ.

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Bluebook (online)

303 A.D.2d 1001, 756 N.Y.S.2d 802, 2003 N.Y. App. Div. LEXIS 3018, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitchell-v-howe-nyappdiv-2003.

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