The Third Department determined Supreme Court properly dismissed Labor Law 240 (1) and 200 causes of action against the construction manager because the construction manager (Sano-Rubin) did not possess the contractual authority to control, and in fact did not control, the manner in which the work was done. The court explained the analytical criteria:
At the time of plaintiff’s injury, Sano-Rubin was serving as the construction manager for various construction projects occurring throughout the school district pursuant to a contract it had entered into with the school district. Plaintiff initially contends that there are factual issues as to whether Sano-Rubin’s role renders it a statutory defendant under Labor Law § 240 (1), which “imposes liability only on contractors, owners or their agents” … . Under this provision, a party that is operating as a construction manager is not deemed a statutory agent unless that party has “the authority to direct, supervise or control the work which brought about the injury” … . “The key criterion in ascertaining Labor Law § 240 (1) liability is not whether the party charged with the violation actually exercised control over the work, but rather whether [that party] had the right to do so” … . Similarly, under Labor Law § 200, which codifies the common-law duty of care as between owners, general contractors and their agents, the imposition of liability requires a showing that the defendant possessed the authority to direct or control the activity resulting in injury … .
Sano-Rubin’s contract with the school district provided that Sano-Rubin “shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the [w]ork of each of the [c]ontractors” and further, that if Sano-Rubin “observes any safety program or action at the site which it believes is improper or in violation of applicable law or rules, it shall immediately advise the [o]wner.” This contract was submitted upon the cross motion, together with proof of the implementation of these contractual limitations on Sano-Rubin’s authority … , These submissions were sufficient to establish its prima facie right to judgment as a matter of law… . Larkin v Sano-Rubin Constr Co Inc, 2015 NY Slip Op 00672, 3rd Dept 1-29-15