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In New York Construction Accident Court Affirms Summary Judgment Against Prime Contractor/Construction Manager On Plaintiff’s Labor Law § 240(1) Cause Of Action

In Barrios v. City of New York, et.al., decided on July 13, 2010, The Appellate Division, Second Department, affirmed the granting of Summary judgment against a prime contractor/construction manager despite the prime contractor not being in privity of contract with plaintiff’s employer. In holding the defendant contractor to be a statutory agent The Court stated;

“[w]here a separate prime contractor has been delegated the authority to supervise and control the plaintiff’s work, the contractor “becomes a statutory agent’ of the owner or general contractor” (Russin v Louis N. Picciano & Son, 54 NY2d at 318; see Walls v Turner Constr. Co., 4 NY3d 861, 863-864). Here, although Skanska was not in contractual privity with the plaintiff’s employer, the record establishes that Skanska had been delegated a significant degree of authority to supervise and oversee on-site safety matters.”

The Court further held that the fact that defendant was a construction manager and not a general contractor was not dispositive;

“We also reject Skanska’s contention that it is not a responsible party under Labor Law § 240(1) because it was a “construction manager” and not a “general contractor.” “The label of construction manager versus general contractor is not necessarily determinative” (Walls v Turner Consr. Co., 4 NY3d at 864; see Tomyuk v Junefield Assoc., 57 AD3d 518, 520; Lodato v Greyhawk N. Am., LLC, 39 AD3d 491, 493). Rather, the critical question is whether the construction manager was delegated supervisory control and authority over the work being done when the plaintiff was injured (see Walls v Turner Constr. Co., 4 NY3d at 863-864). As previously discussed, Skanska was delegated supervisory authority by the NYCEDC to oversee and control the work of the various on-site contractors, particularly with respect to safety issues. Accordingly, under the facts of this case, Skanska’s title of “construction manager” does not relieve it from the duties imposed by Labor Law § 240(1) (see Tomyuk v Junefield Assoc., 57 AD3d at 520; Lodato v Greyhawk N. Am., LLC, 39 AD3d at 493).”