Silsby v St. Andrews Bldg. Corp.
Annotate this CaseDecided on August 26, 2005
Supreme Court, Ontario County
Kimberly M. Silsby, Individually and as Administrator with Letter of Limited Administration of the Estate of Lonnie A. Silsby, Plaintiff,
against
St. Andrews Building Corp. and Lacey Development, Inc., Defendants.
95470
Craig J. Doran, J.
The above captioned action arises out of a fatal fall from an elevated work site on August 25, 2003. This Court granted the plaintiff's motion for partial summary judgment on the issue of liability against defendant Lacey Development, Inc.
The decedent, Lonnie Silsby, was employed by third-party defendant, O'Brien Brothers, Inc., (hereinafter referred to as "O'Brien Brothers"), to frame a house under construction. The defendant, Lacey Development, was the owner of the lot in question. The defendant, St. Andrews Building Corp. ("St. Andrews"), was the general contractor for the construction project. On August 25, 2003, while working at the construction site on Lot 408 in the Harvest Hills subdivision, the decedent, Lonnie Silsby, fell from the second floor of the structure to the ground and sustained injuries which led to his death later that same day. [*2]
Plaintiff, Kimberly Silsby, individually and as administrator of the decedent's estate, subsequently commenced an action against defendants, Lacey and St. Andrews, alleging violations of Sections 200, 240 and 241 of the New York Labor Law. Lacey, in turn, commenced a third party action against O'Brien Brothers for contribution, common law indemnification and contractual indemnification.
Pending before this Court is a cross-motion by St. Andrews for an order pursuant to CPLR 3212 granting summary judgment in its favor on its cross-claim against third-party defendant, O'Brien Brothers, Inc., for contribution and/or indemnification. In support of its motion for summary judgment, St. Andrews asserts that all testimony and evidence demonstrate that O'Brien Brothers alone had control of the project site and responsibility for ensuring compliance with all safety rules and regulations, as well as for supervising its own employees on its framing project.
In opposition, O'Brien Brothers argues that there exist factual issues regarding St. Andrews' actual exercise of direction and control over the work site.
It is well settled that an owner or general contractor who is held strictly liable under Labor Law 240)1) is entitled to full indemnification from the party actually responsible for the incident (see, Frank v. Meadowlakes Development Corporation, 2005 WL 1566556). The grant of common law indemnification is appropriate where the defendant's role in causing the plaintiff's injury is strictly passive and its liability is purely vicarious (see, Grant v. Gutchess Timberlands, 214 AD2d 909). A vicariously liable party may obtain common-law indemnification from a contractor where the party did not control, direct, or supervise the injury-producing work and the contractor controlled and directed the performance of the plaintiff's work (see, Sikorski v. Springbrook Fire District of Town of Elma, 225 AD2d 1041).
In the instant case, St. Andrews met its initial burden on its cross motion by submitting evidence that it did not direct, control or supervise the manner or method of work performed by O'Brien Brothers employees; that O'Brien Brothers directed and supervised the work of its employees. O'Brien Brothers failed to provide any evidence that St. Andrews directed or supervised the work of O'Brien Brothers. The general authority of St. Andrews to coordinate the work of various contractors, inspect the work and enforce safety standards is not a sufficient basis for the imposition of liability (see, Newell v. Almeter-Barry Construction Management, Inc., 245 AD2d 1081). Although St. Andrews had representatives at the work site on a regular basis who had general supervisory powers, including the authority to report safety violations, there is no proof that St. Andrews actually supervised, directed or controlled plaintiff's work as a framer (see, Boshnakov v. Higgins-Keiffer, Inc., 255 AD2d 983). Mr. Meleo, president of St. Andrews, would stop at the site in order to "make sure that there was nothing that needed to be attended to from the management point of view" (Casini Aff., Exh. H, P.88).
Mr. Meleo testified that when he would stop at the work site, the only direction that he would give O'Brien Brothers centered on the "quality of the work". Michael O'Brien, Vice President of O'Brien Brothers, and foreman on this particular job, testified that when Mr. Meleo would stop to look over the work site, Mr. Meleo would not give any direction as to how the work should be done (Casini Aff., Exh. J, P.82). There is no proof that St. Andrews controlled or supervised the framing work performed by O'Brien Brothers.
Accordingly, this Court hereby grants St. Andrew's cross-motion.
This shall constitute the Decision of the Court. Submit Order accordingly.
_____________________________
Craig J. Doran
Acting Supreme Court Justice
Dated at Canandaigua, New York
this 26th day of August, 2005.
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