Russin v. Louis N. Picciano & Son

OPINION OF THE COURT Kane, J. Plaintiff George Russin was seriously injured in the course of his employment while descending from a scaffold he was dismantling at the direction of his employer, A. J. Cerasaro, Inc., the general contractor of the project. He attempted to use a ladder leaning against the scaffold to negotiate the last few feet of his descent, but it turned, causing him to fall to the ground. The ladder was the property of Louis N. Picciano & Son, one of the three defendants who were prime contractors on the job. Each had obtained its contract by bid, pursuant to the provisions of section 101 of the General Municipal Law, from the Village of Endicott, New York, the owner of the premises. In this action, plaintiffs seek recovery under the provisions of sections 200, 240 and 241 of the Labor Law. The transcripts of the examinations before trial, the moving papers, and the provisions of the contract, serve to demonstrate that the general contractor was in full control of plaintiff and the area in which he was working. As prime contractors, the defendants had no contractual arrangement with the general contractor and were not in a position to control any of the activity which produced the injury. Accordingly, they could not be held liable to plaintiffs for failure to provide a safe place to work under section 200 of the Labor Law (see Hamill v Foster-Lipkins Corp., 41 AD2d 361). Nor can there be any liability under the provisions of sections 240 or 241 of the Labor Law. The 1969 amendments to these sections (L 1969, ch 1108, §§ 1, 3) were [469] designed to place “ultimate responsibility for safety practices * * * where such responsibility actually belongs, on the owner and general contractor” (NY Legis Ann, 1969, p 407). These sections now make the liability of an owner or general contractor nondelegable (Haimes v New York Tel. Co., 46 NY2d 132; Allen v Cloutier Constr. Corp., 44 NY2d 290). While the liability arising out of the duties created by these sections may not be escaped by delegation, the duties themselves remain delegable (Page v La Buzzetta, 73 AD 2d 483). Where the work which gives rise to such duties has been delegated to a third party, that third party then becomes an “agent” of either the owner or general contractor and falls within the class of those having nondelegable liability (Page v La Buzzetta, supra; see Labor Law, § 240, subd 1; § 241). In the instant case, the two parties with nondelegable liability, i.e., the general contractor and the owner, were not sued by plaintiffs. The three prime contractors who were sued were never delegated the work giving rise to the duties referred to in sections 240 and 241. Accordingly, we agree with Special Term’s resolution of defendants’ summary judgment motions and its dismissal of their third-party complaints was proper. The orders and judgments should be affirmed, without costs.