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CONTRACT RAISED QUESTIONS OF FACT WHETHER CONSTRUCTION MANAGER HAD SUFFICIENT AUTHORITY AND CONTROL TO BE HELD LIABLE FOR A FALL FROM A SCAFFOLD IN THIS LABOR LAW 200, 240 (1) AND 241 (6) ACTION (SECOND DEPT).

The Second Department determined there was a question fact whether defendant construction manager (Walsh) exercised sufficient supervision and control to be liable for plaintiff’s injury when he fell from a scaffold in this Labor Law 200, 240 (1) and 241 (6) action:

A construction manager of a work site is generally not responsible for injuries under Labor Law §§ 200, 240(1), or 241(6) unless it functions as an agent of the property owner or general contractor in circumstances where it has the ability to control the activity which brought about the plaintiff’s injury … . Here, a triable issue of fact exists as to whether Walsh had the authority to supervise or control the activity that brought about the plaintiff’s injury … . Among other things, in a “Project Management Services Proposal” agreement (hereinafter the agreement) entered into between Walsh and Bakers Dozen, Walsh agreed, inter alia, to provide certain services as “agent” of Bakers Dozen. The agreement further stated that, during the construction implementation phase, Walsh would “[i]ssue directives, clarifications and notices” and “monitor the site as required to maintain the progress of construction work.” Maurisaca v Bowery at Spring Partners, L.P., 2019 NY Slip Op 00109, Second Dept 1-9-19

 

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