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Be Wary of Title of “Subcontractor” in Labor Law Actions

July 11, 2018

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In <a href=""><em>Dan Eliassian v. G.F. Construction, Inc.</em></a>, plaintiff, an owner of a single-family house, hired defendant to perform excavation work to prepare for the addition of a room to the home.  Plaintiff did so in his capacity as president of Alliance Real Estate, Inc.  After defendant completed phase one of the project, and was off-site, plaintiff visited the property to “inspect the work” when he slipped on oil which he alleged leaked from a defective hydraulic line of a backhoe brought to the site by defendant and used by the defendant in its work.
Plaintiff sued defendant alleging violations of Labor Law 200, 240, and 241(6).Defendant moved for summary judgment on the Labor Law 240(1) and 241(6) causes of action on the basis that plaintiff was not “employed” at the site within the meaning of the Labor Law, and defendant was not an owner, agent, or general contractor responsible for the work site.  Plaintiff opposed the motion with an affidavit in which he stated that he was on site specifically to inspect the work.  The lower court denied defendants’ motion for summary judgment.
On appeal, the Second Department found that an individual inspecting the work on behalf of a general contractor is a protected activity covered by Labor Law 240(1) and 241(6) if the individual can show that they were both permitted to work on a building or structure, and were hired by someone.  Here, as plaintiff was on his own property on behalf of his company Alliance to inspect the progress of the work of the defendant, a subcontractor hired by Alliance to perform excavation work, he was a proper plaintiff under Labor Law 240(1) and 241(6).
Further, the defendant’s claim that it was not the general contractor or agent of the owner was insufficient to defeat summary judgment, as a subcontractor may be liable for violations of those provisions if the owner or general contractor delegated to the subcontractor the duty to conform to the requirements of the Labor Law by granting the subcontractor authority to supervise and control the work that brought about the injury.
Since defendant was the only contractor working at the site, and had exclusive control over directing the work and implementing safety measures, and plaintiff was merely on site to inspect the progress of the work, there were triable issues of fact as to whether the defendant could be liable under Labor Law 240(1) and 241(6) on the ground that it had control of the work site and was delegated the duty to enforce safety protocols at the time of the incident, despite the fact that the defendant was not the owner or acting as the general contractor. As such, the Second Department affirmed the denial of defendant’s motion for summary judgment.
This case is significant in reminding defendants that regardless of the titles assigned to construction companies in contracts (“contractor,” “general contractor,” or “subcontractor”), a defendant may still be found liable under the Labor Law if it had control over, and ability to direct, the work, and control over safety procedures at the project site.
Thanks to Valerie Prizimenter for her contribution to this post.

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