State of New York
Supreme Court : County of Monroe

John Lacy,
Plaintiff,

- against -

Index No. 1999/11228

Webster Green, Inc., and
DeMarco Constructors Corporation,
Third-party plaintiffs,

- against -

Stephen C. Schwartz, d/b/a
Schwartz Construction,
Third-party defendant.

_______________________________

This opinion is uncorrected and is subject to revision in the official Reports

ANDREW V. SIRACUSE, J.

Partial summary judgment on liability has already been granted to the plaintiff in this action under Labor Law § 240 (1), which arises from a fall in a large residential construction project in Webster, New York. It appears, however, that the order and motion papers for this proceeding have gotten hopelessly confused, and while no opposition was offered to this motion by defendants Webster Green, Inc., and DeMarco Constructors Corporation, defendant Richard Brotz did submit opposing papers after the court had signed the order. Upon review of these papers it is apparent that the grant of partial summary judgment was proper as against the first two defendants, but was improvidently granted as against Brotz, for reasons which will appear below. The court will therefore modify its summary judgment order sua sponte by striking those portions granting judgment against Brotz.

Also before the court at present is a cross-claim by Webster Green and DeMarco Constructors against Brotz, seeking common law indemnification. This motion must be denied for the same reasons that mandate denial of the summary judgment motion against Brotz: he has raised a fact question as to his status as a prime contractor rather than as a general contractor's agent, and may not be liable under Labor Law § 240 (1).

Plaintiff John Lacy, a framing carpenter, was employed by third party defendant Stephen Schwartz. Schwartz had been engaged by defendant Richard Brotz, who in turn had an oral contract with the general contractor, defendant DeMarco Constructors. Brotz's arrangement with DeMarco was slightly unusual. While he was the framing subcontractor for all practical purposes, DeMarco required him to put his employees under DeMarco's control, and they were paid as DeMarco's employees. There is a suggestion in the EBTs that DeMarco asked for this in order to qualify under certain government set aside programs.

Brotz had little or nothing to do with day-to-day operations, and it is even more clear from the record that he did not supervise the work of the subcontractors he hired to assist in the project. Neither he nor the plaintiff recall any contact between the two before the accident. Plaintiff has stated that on the afternoon of February 1, 1999, he was moving a wall panel on the second floor of an uncompleted building when he stepped backward into an uncovered hole in the floor and fell onto a concrete slab approximately fifteen feet below.

Webster Green, as owner of the property, and DeMarco Constructors, as general contractor, have both been found to be liable under Labor Law § 240 (1). Was it proper to grant judgment to plaintiff against Brotz as well? The answer to this question depends on Brotz's status, which in turn is defined by the role he played in the project. As the Fourth Department recently held, "There is a distinction between a general contractor and a prime contractor for general construction" (Kulaszewski v Clinton Disposal Services, 272 AD2d 855, 856). That distinction is well illustrated by cases from the Third Department.

In Decotes v Merritt Meridian Corp. (245 AD2d 864), for example, the plaintiff was employed by Albany Pipe Insulators, which had been brought into the project by Albany Specialties, the prime HVAC contractor. The court held that prime contractors such as Albany Specialties would be liable under Labor Law § 240 (1) "only if they are acting as 'agents' of the owner or general contractor by virtue of the fact that they had been given the authority to supervise and control the work being performed at the time of the injury" (245 AD2d 864, 866, citing Walsh v Sweet Assocs., 172 AD2d 111, 113). Continuing to quote from Walsh, a case the Fourth Department later cited with approval in Kulaszewski, the court added, "A key criterion to this delegation is the authority to insist that proper safety practices are followed and the right to control work in light of such authority" (loc. cit.; see also, Musselman v Charles A. Gaetano Constr. Corp., 285 AD2d 868).

Thus, the mere fact that Schwartz had a contract with Brotz does not automatically subject Brotz to vicarious liability for construction accidents involving Schwartz's employees. Since Brotz is obviously not the general contractor, he would be liable only if he had the authority defined in the cases above. Under the facts as presented here it seems that he may have lacked that authority even with respect to his own employees, who were paid and supervised by DeMarco.

At the very least, therefore, there is a question of fact as to Brotz's liability to Lacy. For the same reasons the cross-motion for indemnification by Webster Green and DeMarco must be denied. In Labor Law cases the common law right to seek indemnification from employers has been restricted to cases of grave injury, but this restriction does not limit the right of one first-party defendant to be indemnified by another. Whether founded on contract or in common law, though, indemnification is imposed only when one party is made answerable in law for the conduct of another. Brotz may be lower in the contractual hierarchy than DeMarco; but as matters stand at present neither Webster Green nor DeMarco is obligated to plaintiff for anything done by Brotz. DeMarco is liable for Schwartz's conduct rather than Brotz's, and therefore cannot seek indemnification from Brotz.

It is possible that proof may emerge at trial that establishes direct liability on Brotz's part, and if that happens Webster Green and DeMarco could well renew their application. That remains too speculative a possibility, however, and too much a question of fact for even a conditional grant of indemnification.

In summary, then: summary judgment should have been granted against Webster Green and DeMarco only, and denied against Brotz. The cross-motion for indemnification against Brotz should be denied, without prejudice and without costs. Mr. Jacobson may prepare the order, on appropriate notice to all attorneys.

DATED: Rochester, New York

July 18, 2002

Andrew V. Siracuse, J.S.C.

This opinion is not available for publication in any official or unofficial reports, except the New York Law Journal, without the approval of the State Reporter or the Committee on Opinions (22 NYCRR 7300.1)

Design © 1997 Michael Steinberg. No copyright subsists in the decision texts, which are government documents.

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