In Zupan v Irwin Contracting Inc, the Second Department recently discussed the burden facing defendants moving for summary judgment to dismiss common-law and statutory negligence claims.
The case arises from injuries sustained by plaintiff as a result of a workplace accident. The plaintiff, Gary Zupan, was injured while working on a construction site when he attempted to carry a 30-foot, 200-pound steel beam on his shoulders. When he bent down to lower the beam to ground, he heard a “pop” in his knee, and fell down the ground, sustaining injury. Zupan sued the general contractor, Irwin Contracting Inc., and the construction manager, Liro Program and Construction Management, PE, P.C., alleging, inter alia, violation of §200 of the New York Labor Law and common-law negligence. Liro and Irwin made separate summary judgment motions to dismiss the common-law negligence and §200 claims. The Supreme Court granted both motions and Zupan appealed.
On appeal, the Second Department explained the intertwined nature of common-law negligence and §200 claims, in that where a plaintiff’s injuries are due to the alleged means or methods of how the work was performed, “recovery against a defendant cannot be had under Labor Law §200 unless it is shown that the party to be charged had authority to supervise or control the performance of the work.” The Court found that Liro – the construction manager – established that it had, at most, “general supervisory authority” over the plaintiff’s work. Because this is insufficient to impose liability under §200 and the common-law, the Second Department held that the Supreme Court properly dismissed Zupan’s claims against Liro.
By contrast, the Second Department held that Supreme Court erred in determining that Irwin – the general contractor – was entitled to summary judgment. In support of its motion, Irwin pointed out that plaintiff-Zupan testified that Irwin supervisors were on the construction site every day, and that they gave him daily work assignments. He also testified that that on the date of the accident, one of the Irwin supervisors gave him the task of moving, without assistance, the steel beams at issue. While the supervisor instructed Zupan to use certain tools and equipment to accomplish this task, Zupan still felt the supervisor’s request was unreasonable. When Zupan complained about the manner he was instructed to perform the work, the supervisor told him to “just do it.”Irwin also submitted the deposition transcript of its president, who contradicted plaintiff, claiming that Irwin’s supervisors did not have authority to direct the manner in which plaintiff was to perform his work – that authority belonged solely to the plaintiff’s employer, one of the subcontractors on the site.
According to the Second Department, two contrary deposition transcripts only highlighted the issues of fact that Irwin needed to eliminate. Accordingly, Irwin failed to eliminate all triable issues of fact as to whether it was negligent, and summary judgment was improper. Irwin’s “direction and control” of plaintiff’s work was sufficient to keep Irwin in the case. Thanks to Evan King for his contribution to this post. Please email Brian Gibbons with any questions.