Pacheco v. Kew Garden Hills Apartment Owners, Inc.

Appellate Division of the Supreme Court of New York

Pacheco v. Kew Garden Hills Apartment Owners, Inc.

73 A.D.3d 578, 906 N.Y.S.2d 3

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

DecidedMay 20, 2010

StatusPublished

Cited by1 cases

This text of 73 A.D.3d 578 (Pacheco v. Kew Garden Hills Apartment Owners, Inc.) 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

Pacheco v. Kew Garden Hills Apartment Owners, Inc., 73 A.D.3d 578, 906 N.Y.S.2d 3 (N.Y. Ct. App. 2010).

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Opinion

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered April 16, 2009, which, to the extent appealed from, denied defendant Headson Construction, Inc.’s motion for summary judgment dismissing plaintiffs Labor Law § 240 (1) and § 241 (6) claims as against it, unanimously affirmed, without costs.

Contrary to Headson’s argument, the evidence does not demonstrate conclusively that plaintiffs injuries did not arise out of work delegated to Headson by the general contractor, thereby eliminating Headson’s liability under Labor Law § 240 (1) and § 241 (6) as the general contractor’s agent (see Russin v Louis N. Picciano & Son, 54 NY2d 311, 317-318 [1981]; see also Carter v Vollmer Assoc., 196 AD2d 754 [1993]; Davis v Lenox School, 151 AD2d 230 [1989]). Therefore, Headson’s argument that it did not direct, control or supervise the work of the general contractor’s employees is unavailing because its contract authorized it to supervise and control the work delegated to it (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500 [1993]; Weber v Baccarat, Inc., 70 AD3d 487, 488 [2010]), and its argument that Industrial Code (12 NYCRR) § 23-5.1 (h) is inapplicable because Headson was not responsible for the scaffold from which plaintiff fell is unavailing because its contract required it to furnish the scaffolding necessary to the performance of its work. Concur—Gonzalez, P.J., Friedman, DeGrasse, ManzanetDaniels and Román, JJ.

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Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered April 16, 2009, which, to the extent appealed from, denied defendant Headson Construction, Inc.’s motion for summary judgment dismissing plaintiffs Labor Law § 240 (1) and § 241 (6) claims as against it, unanimously affirmed, without costs.

Contrary to Headson’s argument, the evidence does not demonstrate conclusively that plaintiffs injuries did not arise out of work delegated to Headson by the general contractor, thereby eliminating Headson’s liability under Labor Law § 240 (1) and § 241 (6) as the general contractor’s agent (see Russin v Louis N. Picciano & Son, 54 NY2d 311, 317-318 [1981]; see also Carter v Vollmer Assoc., 196 AD2d 754 [1993]; Davis v Lenox School, 151 AD2d 230 [1989]). Therefore, Headson’s argument that it did not direct, control or supervise the work of the general contractor’s employees is unavailing because its contract authorized it to supervise and control the work delegated to it (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500 [1993]; Weber v Baccarat, Inc., 70 AD3d 487, 488 [2010]), and its argument that Industrial Code (12 NYCRR) § 23-5.1 (h) is inapplicable because Headson was not responsible for the scaffold from which plaintiff fell is unavailing because its contract required it to furnish the scaffolding necessary to the performance of its work. Concur—Gonzalez, P.J., Friedman, DeGrasse, ManzanetDaniels and Román, JJ.

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Bluebook (online)

73 A.D.3d 578, 906 N.Y.S.2d 3, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pacheco-v-kew-garden-hills-apartment-owners-inc-nyappdiv-2010.

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