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Contract that Explicitly Proscribes CM’s Exercise of Control is found Central to Courts Granting of Summary Judgement under Labor Law

Posted in on February 14, 2015

constructionOn February 17, 2015, the First Department issued a decision on DaSilva v. Haks Engineers & Land Surveyors, P.C. regarding the applicability of Labor Law §§ 200, 240(1) and 241(6) to a Construction Manager/ Engineer defendant. Plaintiff fell off a scaffold plank. Defendant had project management responsibilities which included providing a resident engineer and making sure that construction contractors had necessary permits and maintained their records in accordance with standard practice. The construction manager was also responsible for reviewing the health and safety plans of contractors, as well as developing and implementing an overall Health and Safety Plan addressing activities associated with existing on-site conditions. However, the contract specified that the construction manager would not supervise, direct, control or have authority over or be responsible for each contractor’s means, methods, techniques, sequences or procedures of construction or the safety precautions and programs incident thereto. If it became apparent that the means and methods of construction proposed by the construction contractors would constitute or create a hazard, then the construction manager was required to notify the Commissioner, or his/her duly authorized representative.

 The court dismissed all claims on the basis that defendant did not control means and methods of plaintiff’s work. In regards to Labor Law § 200, it was found that while construction manager had some general duties to monitor safety at the work-site, and defendants’ personnel were on site on a daily basis, these general supervisory duties were insufficient to form a basis for the imposition of liability.

 Defendants also established that they were not the property owner’s statutory agent for purposes of Labor Law §§ 240(1) or 241(6) such that they should be held vicariously liable for plaintiff’s injuries. The contract did not confer upon the construction manager the right to exercise supervisory control over the individual contractors, nor was defendants authorized to stop the work if their personnel observed an unsafe practice. The construction manager was only obligated to notify the project owner or its duly authorized representative of such a situation. Accordingly, defendants established their entitlement to summary judgment.

 Applied to Construction Managers/ Engineers looking to avoid entanglement in costly New York Labor Law litigation, this decision points to the benefits of a contract that clearly proscribes the exercise of supervisory control over the contractors. Barring such contractual language, the lack of control can be established but it may be more difficult to rule out questions of fact.

By Dylan C. Braverman, Esq.

Senior Counsel

dcbraverman@lewisjohs.com

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