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PLAINTIFF, A HOMEOWNER WHOSE COMPANY HIRED DEFENDANT SUBCONTRACTOR TO WORK AT PLAINTIFF’S HOME, WAS A PROPER PLAINTIFF UNDER LABOR LAW 240 (1) AND 241 (6), QUESTIONS OF FACT WHETHER DEFENDANT WAS IN CONTROL OF THE WORK SITE AND HAD BEEN DELEGATED SITE SAFETY RESPONSIBILITIES (SECOND DEPT).

The Second Department determined plaintiff was a proper plaintiff pursuant to Labor Law 240 (1) and 241 (6). Plaintiff owned a single family home and plaintiff’s company hired defendant subcontractor to work on plaintiff’s property. Plaintiff was inspecting defendant’s work when he slipped and fill on oil which allegedly came from defendant’s equipment. In addition, the Second Department determined there were questions of fact whether defendant had control of the work site and was delegated safety responsibilities:

Labor Law § 240(1) requires that persons “employed in,” inter alia, the “alteration” of a building be provided with proper protective devices. Labor Law § 241(6) requires contractors and owners and their agents who are performing excavation work to comply with the provisions of the Industrial Code to protect “the persons employed therein or lawfully frequenting such places.” “Employee” is defined in Labor Law § 2(5) as “a mechanic, workingman or laborer working for another for hire.” A plaintiff who seeks to recover under Labor Law §§ 240(1) and 241(6) must show that he or she was both permitted to work on a building or structure and was hired by someone … . Those provisions may apply to the president of the general contractor for the project, who is inspecting work performed by subcontractors … . Inspecting the work on behalf of a general contractor is a protected activity covered by these Labor Law provision … . …

Here, the plaintiff alleged that the defendant was working alone at the site and the plaintiff was merely on-site to inspect the progress of the work. The plaintiff further claims that he “did not direct or control the work . . . and played no role in implementing safety procedures or taking safety measures,” since safety measures were in the exclusive control of the defendant. Thus, although the defendant does not own the property and did not appear to be acting as a general contractor, there are triable issues of fact as to whether the defendant could be liable under Labor Law §§ 240(1) and 241(6) on the ground that it had control of the work site and was delegated the duty to enforce safety protocols at the time the accident occurred. Eliassian v G.F. Constr., Inc., 2018 NY Slip Op 05020, Second Dept 7-5-18

LABOR LAW-CONSTRUCTION LAW PLAINTIFF, A HOMEOWNER WHOSE COMPANY HIRED DEFENDANT SUBCONTRACTOR TO WORK AT PLAINTIFF’S HOME, WAS A PROPER PLAINTIFF UNDER LABOR LAW 240 (1) AND 241 (6), QUESTIONS OF FACT WHETHER DEFENDANT WAS IN CONTROL OF THE WORK SITE AND HAD BEEN DELEGATED SITE SAFETY RESPONSIBILITIES (SECOND DEPT))

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