Wade Clark Mulcahy LLP

<p style="text-align: justify;">General contractors are virtually always caught in the web of Labor Law construction claims in New York.  But recently, the Appellate Division, First Department dealt with an interesting issue: what happens when plaintiff is injured performing work outside of the relevant contract between the GC and the owner?</p>
<p style="text-align: justify;">In <em>Ortiz v. IGBY Huntlaw LLC</em>,plaintiff Wilson Ortiz was injured when he fell off a ladder while painting an apartment in Manhattan.  He sued the property owner, IGBY Huntlaw LLC, and the general contractor, A.E. Grayson &amp; Co., Inc., under claims  negligence, and violations of Labor Law 200, 240(1) and 241(6).  Plaintiff was employed as a painter by Uriu, LLC, an entity that was retained directly by the property owner - and there was no contract between Uriu and Grayson.</p>
<p style="text-align: justify;">Grayson moved for summary judgment at the end of discovery, relying on the fact that the contract between Grayson and the owner specifically excluded painting from the services to be provided.  They also argued that there was no contract between Grayson and plaintiff’s employer and Grayson did not have actual or contractual authority to control the plaintiff’s work.</p>
<p style="text-align: justify;">In opposition, the plaintiff submitted a post-deposition affidavit stating that a Grayson supervisor directed plaintiff and his co-workers as to where and how they should perform their work.  This affidavit contradicted the testimony of the Grayson witness and the witness from Uriu, both of whom testified that only the Uriu foreman could or would direct the plaintiff’s work.  The <a href="http://law.justia.com/cases/new-york/other-courts/2016/2016-ny-slip-op-30924-u.html">trial court held</a> that the plaintiff’s affidavit was sufficient to establish a question of fact as to whether Grayson directed, supervised or controlled plaintiff’s activities on the project.</p>
<p style="text-align: justify;">The <a href="http://law.justia.com/cases/new-york/other-courts/2016/2016-ny-slip-op-30924-u.html">Appellate Division, First Department reversed</a>, and granted Grayson’s motion for summary judgment dismissing all of the plaintiff’s claims.  The Court held that because plaintiff’s work was outside the scope of Grayson’s contract with the owner, Grayson had no right to control the work and could not be held liable under Labor Law §§ 240(1) or 241(6).  The Court also dismissed the common law negligence and Labor Law 200 claim, because Grayson had no authority to control the work that caused the plaintiff’s injury.</p>
<p style="text-align: justify;">Noticeably absent from the Appellate Division’s holding was any consideration for the allegations that Grayson was actually directed the plaintiff’s work.  Because Grayson did not have the <strong>authority</strong> to direct and control the plaintiff, the Court found that it could not be held liable for the plaintiff’s injuries under the Labor Law.   Perhaps if plaintiff’s claims that Grayson directed his work had been corroborated by another witness, the court might have reached a different result.  But the mere allegation by plaintiff that another party directed his work at the time of his accident - which was contrary to the contractual language - was found insufficient to create a question of fact in the First Department.</p>
<p style="text-align: justify;">Thanks to John Collins for his contribution to this post and please write to <a href="mailto: mbono@wcmlaw.com">Mike Bono </a>if you are interested in more information.</p>