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QUESTIONS OF FACT WHETHER (1) DEFENDANT WAS A GENERAL CONTRACTOR OR AGENT OF THE OWNER, (2) WHETHER DEFENDANT HAD CONTROL OVER THE WORK SITE AND NOTICE OF A DANGEROUS CONDITION, AND (3) WHETHER THE INJURY WAS THE RESULT OF THE ABSENCE OR FAILURE OF A SAFETY DEVICE IN THIS LABOR LAW 240 (1), 241 (6) AND 200 ACTION (FOURTH DEPT).

The Fourth Department, over a two-justice partial dissent, determined that there were questions of fact whether defendant BGB was liable under Labor Law 240 (1) and 241 (6) as a general contractor or agent of the owner, and whether BGB was liable under Labor Law 200 because of its control over the work site and notice of the dangerous condition. In addition the Fourth Department determined there was a question of fact whether the lintel over a doorway fell on plaintiff because of the absence of a safety device (Labor Law 240 (1)). The dissent argued that no safety device was required as a matter of law. With respect to whether BGB was a general contractor or agent of the owner, and whether BGB could be liable under Labor Law 200, the court wrote:

“An entity is a contractor within the meaning of Labor Law § 240 (1) and § 241 (6) if it had the power to enforce safety standards and choose responsible subcontractors . . . , and an entity is a general contractor if, in addition thereto, it was responsible for coordinating and supervising the . . . project” … . In addition, an entity that serves as “a construction manager may be vicariously liable as an agent of the property owner . . . where the manager had the ability to control the activity which brought about the injury’ “… . Here, BGB’s own submissions raise triable issues of fact whether BGB had the authority to supervise or control the injury-producing work, and thus whether it may be held liable as a general contractor or an agent of the owner … .

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With regard to plaintiff’s Labor Law § 200 and common-law negligence causes of action against BGB, we conclude that, contrary to BGB’s contention on its cross appeal, it failed to eliminate triable issues of fact whether it had ” control over the work site and actual or constructive notice of the dangerous condition’ ” that allegedly caused plaintiff’s injuries … . Robinson v Spragues Wash. Sq., LLC, 2018 NY Slip Op 01007, Fourth Dept 2-9-18

LABOR LAW -CONSTRUCTION LAW (QUESTIONS OF FACT WHETHER DEFENDANT WAS A GENERAL CONTRACTOR OR AGENT OF THE OWNER, WHETHER DEFENDANT HAD CONTROL OVER THE WORK SITE AND NOTICE OF A DANGEROUS CONDITION, AND WHETHER THE INJURY WAS THE RESULT OF THE ABSENCE OR FAILURE OF A SAFETY DEVICE IN THIS LABOR LAW 240 (1), 241 (6) AND 200 ACTION (FOURTH DEPT))/GENERAL CONTRACT (LABOR LAW-CONSTRUCTION LAW, QUESTIONS OF FACT WHETHER DEFENDANT WAS A GENERAL CONTRACTOR OR AGENT OF THE OWNER, WHETHER DEFENDANT HAD CONTROL OVER THE WORK SITE AND NOTICE OF A DANGEROUS CONDITION, AND WHETHER THE INJURY WAS THE RESULT OF THE ABSENCE OR FAILURE OF A SAFETY DEVICE IN THIS LABOR LAW 240 (1), 241 (6) AND 200 ACTION (FOURTH DEPT))/OWNER, AGENT OF (LABOR LAW-CONSTRUCTION LAW, QUESTIONS OF FACT WHETHER DEFENDANT WAS A GENERAL CONTRACTOR OR AGENT OF THE OWNER, WHETHER DEFENDANT HAD CONTROL OVER THE WORK SITE AND NOTICE OF A DANGEROUS CONDITION, AND WHETHER THE INJURY WAS THE RESULT OF THE ABSENCE OR FAILURE OF A SAFETY DEVICE IN THIS LABOR LAW 240 (1), 241 (6) AND 200 ACTION (FOURTH DEPT))/FALLING OBJECTS LABOR LAW-CONSTRUCTION LAW, QUESTIONS OF FACT WHETHER DEFENDANT WAS A GENERAL CONTRACTOR OR AGENT OF THE OWNER, WHETHER DEFENDANT HAD CONTROL OVER THE WORK SITE AND NOTICE OF A DANGEROUS CONDITION, AND WHETHER THE INJURY WAS THE RESULT OF THE ABSENCE OR FAILURE OF A SAFETY DEVICE IN THIS LABOR LAW 240 (1), 241 (6) AND 200 ACTION (FOURTH DEPT))

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