Plaintiff, Stephen F. Brummer, brings this action against Defendants, New Opportunities Community Housing Development Corporation and Town of Tonawanda, for injuries suffered on January 9, 2002, alleging violations of Labor Law Sections 200, 240, and 241 and ordinary negligence.

Defendants New Opportunities and Tonawanda bring third-party actions against Plaintiff Brummer's employer, Wendel Anderson Construction, alleging common law and contractual indemnification.

Plaintiff Brummer moves for summary judgment on the Section 240 and 241 claims.

Defendant Tonawanda cross-moves for summary judgment against Plaintiff Brummer and against Third-Party Defendant Anderson for defense and indemnification.

Plaintiff Brummer's motion for summary judgment on the Section 240 claim is granted except as to Defendant Tonawanda. It is denied as to the Section 241 claim.

Defendant Tonawanda's cross-motion against Plaintiff Brummer is granted. Defendant Tonawanda's cross-motion against Third-Party Defendant Anderson is granted.

Plaintiff Brummer was injured when he fell from the exterior wall lower roof area of a new home under construction at 86 Riverdale in Tonawanda. He has testified that he was not supplied with a safety harness and that there was no scaffolding or manlift to provide him with proper protection from falling.

Defendants Tonawanda and Opportunities argue that Plaintiff Brummer's actions were the sole proximate cause of his injuries, that he had taken a Valium that morning, had had three to five beers the night before the accident, and had part of a can of beer for lunch before the accident. They further argue that wood planking was installed along the wall so that Brummer could install the exterior fascia board by leaning over the top plate, but that Brummer chose to place his feet on the rafters and top plate to nail the fascia and that he never asked for a harness or suggested its use even though he knew there were icy patches on the top plate.

John P. Coniglio, a workplace safety consultant, has stated that the pick, which was set up on the interior wall of the house under construction, was not an adequate platform for Mr. Brummer to stand on to install fascia board on the exterior and that exterior scaffolding or a manlift could have been supplied (Coniglio Supplemental Affidavit, December 4, 2003).

The Court is persuaded that Plaintiff Brummer has met his initial burden of establishing that he was never furnished with appropriate safety devices pursuant to Labor Law Section 240(1). Defendants have failed to present any evidence in appropriate form to rebut that testimony. Rather, they focus on allegations concerning Plaintiff Brummer's possible consumption of beer and Valium, [*2]which cannot, under the circumstances, constitute sole proximate cause.

The Court notes that reference has been made to Blake v. Neighborhood Housing Services, 2003 WL 22998497, recently decided by the Court of Appeals. The case is entirely distinguishable on its facts, in that there, an appropriate safety device, a ladder, was supplied. Here there is no factual dispute over whether an appropriate safety device was provided. There is only Plaintiff's expert's testimony that no appropriate device was provided.

Plaintiff Brummer's motion as to Section 240 claim is granted.

Plaintiff Brummer refers to a wide variety of alleged violations of the Industrial Code here, which straightforwardly do not establish negligence as a matter of law. (Schmeen v. County of Monroe, 175 AD2d 634 [4th Dept. 1991]).

The question of liability under Section 241 is for the trier of fact.

Plaintiff Brummer's motion for summary judgment as to the Section 241 claim is denied.

Defendant Tonawanda argues that it is not liable under the Labor Law because it is neither contractor, owner, nor agent.

At this juncture, it is appropriate to review the business and contractual relations among Defendants Tonawanda, New Opportunities, and Anderson.

On June 8, 2000, Defendant Town purchased and subsequently demolished the house at 86 Riverdale as part of a neighborhood revitalization program financed by the federal government and funneled through the community development organization, Defendant New Opportunities. The property was deeded over to Defendant New Opportunities on September 7, 2002.

Defendant New Opportunities then contracted with Defendant Anderson to build the new house at 86 Riverdale. The contract identifies Defendant Tonawanda as Defendant New Opportunities' "construction consultant".

"The owner's construction consultant will not have control over or in charge of and will not be responsible for construction methods...or for safety procedures and programs in connection with the work...(Plaintiff Notice of Motion, Exhibit "U", para. 10.3 Sup. Gen. Conditions)."

Defendants note that Wendel Anderson of Defendant Anderson has testified that Defendant Tonawanda employees did not direct or control his employees or engage in any questions of workplace safety.

Plaintiff Brummer has countered by noting that Defendant Tonawanda never surrendered control of the project, that it suggested Defendant Anderson as the contractor, that it designed the house and inspected the property every day, and that Michael Reigel of Defendant New Opportunities testified that they had agreed that Tonawanda would supervise the project.

Plaintiff Brummer concludes that the activity renders Defendant Tonawanda the de facto owner, or agent of the owner for the purposes of Sections 240 and 241.

The Court is not familiar with the term "de facto owner" in a Labor Law context. McKinney Cons. Law does engage the question of "indicia of ownership" in Section 240, note 225 and Section 241, note 95. The lead case in both instances is Ogden v. City of Hudson Industrial Development Agency, (277 AD2d 794 [3d Dept. 2000]), which defines "owner" as one who has an interest in the property and fulfilled the role of owner by contracting to have work performed for his benefit, with the key criterion: the right (emphasis added) to insist that proper safety features be followed. [*3]

While the Court might concede that Defendant Tonawanda had an interest in the property, there is no way to conclude that it contracted with Defendant Anderson, nor that it possessed any right to insist on proper safety procedure, something specifically withheld in the contract. The term "supervise the project" does not amount to supervising or controlling the injury-producing work (Russin v. Picciano & Son, 54 NY2d 311 [1982]).

The Court is also persuaded that Tonawanda does not qualify as an agent for Labor Law purposes, again because of its inability to rightfully insist on appropriate safety procedures (see Seeban v. City of Oswego, 148 Misc 2d 366, Oswego Cty.[1990]).

The Section 240 and 241 claims do not properly lie against Tonawanda.

The Court is also persuaded that the Section 200 common law negligence claims do not lie, in that Defendant Tonawanda did not create the dangerous condition and had no actual or constructive notice of it.

The cross-motion is granted.

Defendant Tonawanda contends that Third-Party Defendant Anderson owes it defense and indemnification.

The plain language of the contract between Defendant New Opportunities and Third-Party Defendant Anderson ("shall indemnify and hold harmless" at para. 9.12) creates such a right.

In rebuttal, Third-Party Defendant Anderson indicates that there are numerous issues of fact relating to Defendant Tonawanda's role in the construction and accident.

Even if the Court was to agree with the characterization, and it does not, the question is irrelevant to the issue of indemnification.

The cross-motion is granted.

Plaintiff Brummer's motion for summary judgment on the Section 240 claim is granted except as to Defendant Tonawanda, where it is denied. The motion is denied as to the Section 241 claims.

Defendant Tonawanda's cross-motion for summary judgment against Plaintiff Brummer is granted. Defendant Tonawanda's cross-motion against Third-Party Defendant Anderson on defense and indemnification is granted.

Submit Order upon consent of opposing counsel.

Eugene M. Fahey J.S.C.

DATED: February 25, 2004