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Contract with Construction Manager Did Not Give the Manager Sufficient Supervisory Control to Impose Liability Under Labor Law 200, 240 (1) or 246 (1)

The First Department determined the terms of the contract with the construction manager did not afford the manager sufficient control to impose liability under Labor Law 200.  The court further determined the contract did not make the manager an agent for the property owner, such that the manager would be vicariously liable under Labor Law 240 (1) or 246 (1). Plaintiff fell when an elevated plank on which he was standing shifted:

… [T]he CMS (construction management services contra t) specified that [t]he [construction manager] will not supervise, direct, control or have authority over or be responsible for each contractor’s means, methods, techniques, sequences or procedures of construction or the safety precautions and programs incident thereto. If it became apparent that the means and methods of construction proposed by the construction contractors would constitute or create a hazard, then the construction manager was required to notify the Commissioner, or . . . his/her duly authorized representative.”

Where a claim under Labor Law § 200 is based on alleged defects or dangers arising from a subcontractor’s methods or materials, liability cannot be imposed on an owner or general contractor unless it is shown that it exercised some supervisory control over the work … . Defendants established that under the CMS they were not obligated to exercise supervisory control over the construction contractor’s means or methods of work, nor did they assume such responsibility … . Although under the CMS the construction manager had some general duties to monitor safety at the work-site, and defendants’ personnel were on site on a daily basis, these general supervisory duties are insufficient to form a basis for the imposition of liability … .

Defendants also established that they were not the property owner’s statutory agent for purposes of Labor Law §§ 240(1) or 241(6) such that they should be held vicariously liable for plaintiff’s injuries …. The CMS did not confer upon the construction manager the right to exercise supervisory control over the individual contractors, nor were defendants authorized to stop the work if their personnel observed an unsafe practice … . The construction manager was only obligated to notify the project owner or its duly authorized representative of such a situation. DaSilva v Haks Engrs, 2015 NY Slip Op 01380, 1st Dept 2-17-15

 

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