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Subcontractor Who Is Not Vicariously Liable for the Acts or Omissions of Its Subcontractors Under Labor Law 200 May Be Vicariously Liable for those Acts or Omissions Under Labor Law 241 (6)

The First Department explained that, under Labor Law 200 (a codification of common law negligence), a subcontractor, as the statutory agent of the owner and general contractor, stands in the shoes of the owner and general contractor. Neither the owner, general contractor nor their statutory agent may be held liable under Labor Law 200 in the absence of evidence the owner, general contractor or their statutory agent actually created the dangerous condition or had actual or constructive notice of the dangerous condition. Here there was no evidence the defendant subcontractor created or was aware of a dangerous condition allegedly created by its subcontractors. A subcontractor who did not create and/or has no notice of the dangerous condition, however, can be vicariously liable for the acts and omissions of its subcontractors, as a statutory agent, under Labor Law 241 (6):

 As a subcontractor and, therefore, the statutory agent of the owner and general contractor, [defendant] stands in the shoes of the owner and general contractor, neither of which may be held liable under common-law negligence or Labor Law § 200 (a codification of common-law negligence) for injuries arising from a dangerous condition in the absence of evidence that such party actually created the dangerous condition or had actual or constructive notice of it … . Uncontroverted evidence establishes, as a matter of law, that [defendant]  sub-subcontracted all of its work … and furnished no workers in its own employ to perform work. Rather, [defendant’s] presence at the site was limited to one-hour visits by its president once a week or every other week. Since there is no evidence that [defendant] itself created the condition in question or had actual or constructive of it, it cannot be held liable for injuries arising from that condition under common-law negligence or Labor Law § 200, neither of which makes an owner, a general contractor or their statutory agent vicariously liable for the negligence of a downstream subcontractor … .

However, given that [defendant’s] subcontract with [the owner] delegated to it the authority to supervise all drywall work, and given plaintiff’s allegation that the presence of the pipe segment on the floor was caused by employees of [defendant’s] spackling sub-subcontractor … , [defendant] is subject to liability under Labor Law § 241(6) as a statutory agent … . DeMaria v RBNB 20 Owner, LLC, 2015 NY Slip Op 05599, 1st Dept 6-30-15

 

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