Plaintiff commenced this action alleging that he suffered personal injuries on a

job site and claiming that defendants are liable under Labor Law §§ 200, 240 (1) and 241 (6). At oral argument on the motion, the parties agreed that the Catalano defendants have been dropped from the case pursuant to a settlement between plaintiff and the Catalanos. Accordingly, this motion is now limited to the claims asserted by the plaintiff against defendant, United Carpenters' Construction Company ("UCCC").

The primary issue is whether UCCC has established as a matter of law on the record before the Court that it was not the general contractor on the job site at the time plaintiff was injured, thereby negating any liability under the Labor Law. UCCC has submitted evidence in admissible form establishing that it served only as a prime contractor to the Catalanos with respect to the construction of their single-family residence. Specifically, UCCC has shown that it was not in fact responsible for the coordination and execution of all of the work at the job site, [*2]and that it was therefore not invested with the power to enforce safety standards and hire responsible contractors. Accordingly, UCCC has established a prima facie right to summary judgment as a matter of law (Bagshaw v Network Serv. Mgt., 4 AD3d 831, 833 [4th Dept 2004]).

Plaintiff attempts to establish triable issues of fact on the basis that: (1) the contract entered into between UCCC and the Catalanos is sufficient proof in itself to establish that UCCC was the general contractor at the job site when plaintiff was injured; and (2) UCCC acted through an agent with apparent authority as the general contractor on the job. As to the first point, plaintiff relies entirely on the contract purportedly executed by UCCC with the Catalanos dated March 21, 2003. This is a standard form contract of sale "for a one or two-family dwelling to be built on builder's land." Plaintiff relies primarily on paragraphs 22 and 23 in that contract to establish that UCCC obligated itself to act as the general contractor by agreeing to hire all subcontractors and to indemnify the Catalanos.

While plaintiff accurately reads the language of the contract, the record overwhelmingly establishes that the contract bears no resemblance to the actual facts giving rise to this lawsuit. All of the admissible evidence in the record substantiates that UCCC did nothing more on the job site than perform the framing work with respect to the Catalanos' residence. The Catalanos paid UCCC directly and paid all other contractors and suppliers directly. There is no evidence that UCCC supervised any of the work being performed by plaintiff at the time of the injury or any other contractors' employees, and no representative of UCCC was even at the site at the time of plaintiff's injury.

Further, the contract is entirely inapplicable to the situation as it actually occurred because the contract presupposes that the builder (i.e., UCCC) owned the property on which it was constructing the residence and conveyed title once the residence had been fully constructed. This did not happen here as the Catalanos at all times owned the site. At most, it appears that the contract was executed by UCCC for the convenience of the Catalanos who sought to obtain bank financing for the project. Under all of these facts and circumstances, UCCC has established its entitlement to judgment as a matter of law on the issue of whether it served as a general contractor and the mere characterization in the inapplicable contract of UCCC as the "builder" does not establish UCCC's liability (Kulaszewski v Clinton Disposal Servs., Inc., 272 AD2d 855, 856 [4th Dept 2000]).

As to the other theory advanced by plaintiff that UCCC acted as the general contractor through an apparently authorized agent (i.e., Peter J. Gross), the record is directly to the contrary. Peter J. Gross was neither employed nor otherwise affiliated with UCCC during the construction of the Catalanos' residence. Plaintiff does not, however, claim that Peter J. Gross was UCCC's actual agent but had apparent authority to act on UCCC's behalf. There are no facts in the record to support this claim as to the plaintiff. Michael Catalano testified at his examination before trial that he understood Peter J. Gross was acting solely in a personal capacity and not on behalf of UCCC. Thus, even as to the Catalanos, Peter J. Gross was not acting as the apparent agent on behalf of UCCC. Plaintiff is even more removed from the situation than the Catalanos. Additionally, the record establishes that the plaintiff never knew who or what UCCC was until after his accident and only learned of the entity through his attorneys. Any actions by Peter J. Gross in ordering supplies on a discounted basis through UCCC's accounts are therefore not attributable to UCCC for purposes of liability to the plaintiff. Thus, as to the plaintiff, Peter J. [*3]Gross was not acting with actual or apparent authority on behalf of UCCC (Hallock v State, 64 NY2d 224, 231-232 [1984]). Simply put, plaintiff was not entitled to rely on an unknown and uninvolved entity to fulfill the requirements of the Labor Law.

For all of the foregoing reasons, UCCC's motion is granted in all respects. UCCC's counsel should settle the Order with plaintiff's counsel.

DATED:October 6, 2006

________________________________________

HON. JOHN M. CURRAN, J.S.C.