This is a Labor Law action wherein plaintiff was injured when he fell between 10 and 12 feet from an elevated work site in the open ceiling joists of a building under construction. Plaintiff was not provided with safety devices such as lines or temporary flooring or a catwalk. He used only a ladder that he provided for himself.

Plaintiff asserts violations of Labor Law §240(1) against the owners Hamlet on Olde Oyster Bay, The Hamlet on Olde Oyster Bay LLC (owners), the general contractor Hamlet on Old Oyster Bay Development Corporation (contractor) and the subcontractor, Heidi Construction Corporation (Heidi), who was hired by the contractor to perform carpentry work involving framing the structure.

Plaintiff, an independent contractor, was hired by Heidi to install the fire walls in a 12-unit residential building. In order to perform this work it was necessary to work in the ceiling joists.

Labor Law §240(1) is a strict liability statute applying to owners and contractors alike and their

subcontractors under the theory of agency (see Leon v. J&M Peppe Realty Corp., 190 AD2d 400).

The Hamlet defendants argue that plaintiff's actions were the sole proximate cause of his injuries and consequently Labor Law §240(1) does not apply (Blake v. Neighborhood Housing Services of New York City v. 1 NY3d 280). However, case law also holds that first a safe workplace has to be furnished (Id.; LaQuidara v. HRH Construction, 283 AD2d 169; DiVincenzo v. Tripart,

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Development Inc., 272 AD2d 904).

That Plaintiff was negligent in just using a ladder and walking along the top of the wall line with his back leaning against a truss does not absolve the Hamlet defendants under a strict liability theory even thought plaintiff had performed his work this way for years and did not expect to be provided with extension ladders, scaffolding or any other safety installation or devise (cf. Haimes v. New York Telephone, 46 NY2d 132).

Plaintiff submits an affidavit from Nichola Gelizzi in his opposition to Hamlet's cross-motion, which the Court incorporates here, where he concludes within a reasonable degree of engineering certainty that the defendants failed to follow industry practices in providing plaintiff with a safe workplace. However, defendants claim that according to plaintiffs testimony, the industry practice was to only use a ladder. Therefore, plaintiff was the sole cause of the accident (Blake v Neighborhood Housing Services, supra ). This argument is supported in part by the affidavit of Heinz Kopf, the president of Heidi.

Consequently, an issue of fact has been raised as to Hamlet's's liability under Labor Law §240(1) (Styer v. Walter Vita Construction, Inc., 174 AD2d 662), and plaintiff's motion for summary judgment is denied as well as Hamlet's cross-motion.

The motion against Heidi is another matter entirely.

Heidi, as a subcontractor, cannot be found strictly liable under Labor Law §240(1) unless they are acting as agents for the owner and contractor by virtue of the delegated authority to supervise and control the work site (Zervoes v. City of New York, 779 NYS2d 106 {8 AD3d 477} ; Magrath v. J. Migliore Construction Company, 139 AD2d 893). In the case at bar, plaintiff was the sole employee of Island Contractors, the independent contractor that was hired by Heidi to do the fire wall work.

The key criterion in ascertaining liability under these statues is whether Heidi had the right to control the work and insist that the proper safety practices be followed, not whether it actually did so (Iveson v. Sweet Assocs., 203 AD2d 741; Kelly v. Lemoyne College, 199 AD2d 942).

As mentioned, plaintiff was not an employee of Heidi but the employee of an independent contractor. Plaintiff's sole ownership of the entity which employed him, however, is irrelevant to the Labor Law §240(1) action against Heidi under an agency theory (cf. Kendall v. Venture Dev., 206 AD2d 797). Nevertheless, it is relevant to Heidi's right to supervise and control plaintiff's work.

The evidence reveals, by plaintiff's admissions, that Heidi did not actually control or supervise him. Plaintiff reported to no one and supplied his own equipment. Plaintiff was only informed by Heidi where to work next when the materials were available and the framing completed by Heidi.

Absent any written contract with express provisions as to authority, it cannot be said Heidi had [*2]the right to control or supervise plaintiff's work. Accordingly, plaintiff's proof in this regard fails. (e.g.

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Saaverda v. East Fordham Road Real Estate Corp., 233 AD2d 125).

Accordingly, plaintiff's motion for summary judgment against Heidi on a strict liability theory is denied and, there being no issue of fact raised against Heidi, plaintiff's complaint against Heidi only as to the causes of action pursuant to Labor Law §240(1) are dismissed.

Regarding the causes of action sounding in negligence, initially plaintiff did not oppose the dismissal of the common law negligence claims as well his claims under Labor Law sections 200, 241(6) and 241-a as against the Hamlet defendants, presumably because there is no evidence whatsoever that Hamlet had the authority to supervisor or control the activity bringing about the injury. Heidi's

sur- reply on the cross-motion, however, raised the question as to whether the Hamlet defendants had actual or constructive notice of any defect or condition giving rise to plaintiff's injury (Giambalvo v. Chemical Bank, 260 AD2d 432).

This question is answered in the negative by Hamlet's witness, August Door, who testified at his November 7, 2003 deposition at page 20 that he never observed plaintiff slide the firewall panels in on the second floor, where the accident occurred.

Accordingly, all claims and cross-claims against the Hamlet defendants sounding in negligence are dismissed.

Likewise, these causes of action against Heidi are dismissed since Heidi was not an agent of Hamlet and there is no proof Heidi supervised or controlled plaintiff's work (Viera v. Tishman, 255 AD2d 235). Any reference to Heidi's negligence in installing the framework is without any evidentiary support.

In summary, plaintiff's motion for summary judgment is denied there being a factual issue left concerning the Labor Law §240(1) liability of Hamlet.

Hamlet's cross-motion for summary judgment is likewise denied.

The complaint and all cross-claims and third-party claims against Heidi are dismissed.

Dated: November 4, 2004 /S/ John M. Galasso..............................J.S.C