Wray v. Morse Diesel International Inc.

Order, Supreme Court, Bronx County (Kenneth L. Thompson, J.), entered April 9, 2004, which, to the extent appealed from, denied defendant Morse Diesel’s cross motion for summary judgment dismissing plaintiffs Labor Law § 200 and common-law negligence claims, affirmed, without costs. Plaintiff was employed as a laborer by defendant Westmont Associates, the general contractor on a public library construction project located at 365 Fifth Avenue in Manhattan. Plaintiff sustained injury shortly after he removed designated areas of concrete ceiling beams using a jackhammer. As he was handing down tools to a coworker while standing on a scaffold, a portion of the concrete ceiling collapsed. Plaintiff did not fall from the scaffold but was injured by falling concrete debris. [261] As the project construction manager, Morse Diesel asserts that it was primarily responsible for ensuring compliance by contractors at the work site with the requirements of their contracts with the State Dormitory Authority. Morse also assumed responsibility for safety oversight and had authority to issue stop-work orders for violations of safety protocols. Plaintiff testified that he received his daily assignments from his supervisor, who was given the work instructions by an individual affiliated with Morse. While the Morse representative did not speak directly to Westmont employees, plaintiff overheard work instructions being given by Morse to his supervisor at Westmont. In fact, on the day of the accident, plaintiff heard Morse’s representative giving instructions to plaintiffs supervisor regarding the work that was to be performed, and the supervisor simply relayed those instructions to plaintiff and his coworkers. Moreover, as the dissenter notes, on the day of the accident, the Morse representative explicitly directed that only those areas of concrete marked with orange-colored spray paint were to be cut and removed. In this context, the instructions issued by the Morse representative concerning plaintiffs demolition work raise a factual issue concerning Morse’s exercise of supervisory authority over the work being performed by plaintiff (see Lehner v Dormitory Auth. of State of N.Y., 221 AD2d 958 [1995]; cf. Lombardi v Stout, 80 NY2d 290, 294-295 [1992]; Russin v Louis N. Picciano & Son, 54 NY2d 311, 316-317 [1981]). Under these circumstances, we accord little significance to the use of an intermediary to relay the instructions given by Morse’s representative to plaintiff. We have considered Morse’s remaining contentions and find them without merit. Concur—Tom, J.P., Ellerin, Nardelli and Sweeny, JJ.