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QUESTION OF FACT WHETHER THE LESSEE OF THE PROPERTY WAS AN OWNER OR AGENT OF THE OWNER FOR LABOR LAW PURPOSES, PROPERTY MANAGER WAS NOT LIABLE IN THIS LABOR LAW 240 (1), 241 (6) AND 200 ACTION STEMMING FROM PLAINTIFF’S FALL FROM A ROOF (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action, stemming from falling from a roof he was working on, should have been granted with respect to the property owner (Bruckner) and the general contractor (Metro). There was a question of fact whether Western, which leased the property, was an “owner” or “agent” of the owner for Labor Law purposes. However, the property manager, Ashkenazy, had no authority to supervise or control plaintiff’s work and was not liable under Labor Law 240 (1), 241 (6) or 200:

An issue of fact exists as to whether Western, the lessee, was an “owner” or “agent” of the owner, for Labor Law purposes. Record evidence showing that Western was responsible for renovating the premises, including the roof, and had retained Metro as the general contractor for the renovation work, raises an issue of fact as to whether Western had the authority to supervise and control the work site … . The testimony of Western’s director of merchandising that he was not involved with the construction work is insufficient to excuse Western from liability, where he had no knowledge of, and could not testify to, the lease arrangements between Western and Bruckner, as well as the arrangement between Western and Metro … .

Ashkenazy had no involvement with the construction work, and was onsite only to check on its progress, and to ensure it did not interfere with the other tenants. The belief of its “Director of Property Management” that he may have been able to stop work at the job site “[w]ith proper notice I guess as per the lease” is too equivocal to raise an issue of fact. Because there was no evidence that Ashkenazy had authority to supervise or control the work site, the Labor Law § 240(1) claim should be dismissed against it … . Ashkenazy is also entitled to dismissal of the Labor Law § 241(6) claim because, for the same reasons, it is not an “owner” or “agent” under that statute … . Without authority to supervise or control plaintiff’s work, Ashkenazy also may not be held liable under Labor Law § 200 and common law negligence principles in this case involving the means and method of plaintiff’s work … . Reyes v Bruckner Plaza Shopping Ctr. LLC, 2019 NY Slip Op 05003, First Dept 6-20-19

 

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