ROBERT M. KNAB, JR., PLAINTIFF-RESPONDENT,
DREW ROBERTSON, ET AL., DEFENDANTS, AND OAKGROVE CONSTRUCTION, INC., DEFENDANT-APPELLANT.
OFFICES OF JOHN WALLACE, BUFFALO (NANCY A. LONG OF COUNSEL),
LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, TROUTMAN, AND
from an order of the Supreme Court, Erie County (John L.
Michalski, A.J.), entered October 14, 2016. The order denied
the motion of defendant Oakgrove Construction, Inc., for
summary judgment dismissing the complaint against it.
hereby ORDERED that the order so appealed from is unanimously
reversed on the law without costs, the motion is granted and
the complaint against defendant Oakgrove Construction, Inc.
Plaintiff commenced this Labor Law and common-law negligence
action seeking damages for injuries he sustained while
working in the median of the New York State Thruway. The New
York State Thruway Authority (Authority) hired defendant
Oakgrove Construction, Inc. (Oakgrove) to work on the
thruway, including repaving a section thereof, and the
Authority hired defendant Foit-Albert Associates,
Architecture, Engineering and Surveying, P.C. (Foit-Albert)
to inspect Oakgrove's work. Foit-Albert subcontracted
some of that work to plaintiff's employer. Oakgrove began
to perform drainage and clearing work in August 2010, but
suspended the work in late November for the winter shutdown
period. Oakgrove removed all of its equipment and employees
from the work site, and all lanes of the thruway in the area
of the proposed construction were opened. Before suspending
its work, Oakgrove noted that some of the elevation
measurements provided by the Authority were incorrect.
Foit-Albert, whose contract with the Authority stated that
its inspection responsibilities also included surveying,
assigned plaintiff to take new measurements, including during
Oakgrove's winter construction hiatus. In December,
plaintiff was taking those measurements when a vehicle
operated by defendant Drew Robertson left the roadway and
struck him. Plaintiff commenced this action, asserting claims
under Labor Law §§ 200 and 241 (6) as well as a
common-law negligence cause of action against Oakgrove.
Court erred in denying Oakgrove's motion seeking summary
judgment dismissing the complaint against it. Addressing
first the claim under Labor Law § 241, 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" (Walsh v Sweet
Assoc., 172 A.D.2d 111, 113 [3d Dept 1991], lv
denied 79 N.Y.2d 755');">79 N.Y.2d 755 ; see Russin v Louis N.
Picciano & Son, 54 N.Y.2d 311, 318 ;
Giovanniello v E.W. Howell, Co., LLC, 104 A.D.3d
812, 813 [2d Dept 2013]). "The owner or general
contractor is not synonymous with the prime contractor...
Generally speaking, the prime contractor for general
construction (especially in State construction projects) has
no authority over the other prime contractors... unless the
prime contractor is delegated work in such a manner that it
stands in the shoes of the owner or general contractor with
the authority to supervise and control the work"
(Walsh, 172 A.D.2d at 113; see Kulaszewski v
Clinton Disposal Servs., 272 A.D.2d 855, 856 [4th Dept
Oakgrove and Foit-Albert were both prime contractors, and
plaintiff's employer contracted only with Foit-Albert.
Oakgrove did not supervise or instruct plaintiff. Rather,
plaintiff reported to a supervisor at Foit-Albert. Oakgrove
established as a matter of law that it had no control over
plaintiff or the work he was performing, and plaintiff failed
to raise a triable issue of fact (see Kulaszewski,
272 A.D.2d at 856; Greenleaf v Bristol-Myers Squibb
Co., 231 A.D.2d 902, 903 [4th Dept 1996]).
Plaintiff's reliance on the fact that Oakgrove provided
GPS units for plaintiff to use is misplaced inasmuch as
"[t]he determinative factor on the issue of control is
not whether a [contractor] furnishes equipment but[, rather,
is] whether [it] has control of the work being done and the
authority to insist that proper safety practices be
followed" (Everitt v Nozkowski, 285 A.D.2d 442,
443-444 [2d Dept 2001]; see Grimes v Pyramid Cos. of
Onondaga, 237 A.D.2d 940, 940-941 [4th Dept 1997]).
Here, there is nothing in the record to indicate that
Oakgrove had such control over plaintiff's work, and the
court therefore should have dismissed the Labor Law §
241 (6) claim against Oakgrove.
further agree with Oakgrove that it established that it did
not have control over the work site at the time of
plaintiff's accident, and plaintiff failed to raise a
triable issue of fact. Thus, the court should have dismissed
the Labor Law § 200 claim and common-law negligence
cause of action against Oakgrove (see Miano v State Univ.
Constr. Fund, 291 A.D.2d 830, 830-831 [4th Dept 2002];
Fenton v Monotype Sys., 289 A.D.2d 194, 194 [2d Dept
2001]; see generally Steiger v LPCiminelli, Inc.,
104 A.D.3d 1246, 1248 [4th Dept 2013]). Furthermore, Oakgrove
also established that it did not create or have actual or
constructive notice of the dangerous condition of the work
site, thereby establishing an additional ground for dismissal
of that claim and cause of action against it (see
generally Piacquadio v Recine Realty Corp., ...