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Construction management services agreement between the Construction Manager (CM) and the Metropolitan Transportation Authority (MTA) of New York provided that the CM was responsible for coordinating the work relating to the number 7 train subway extension project on the west side of Manhattan. This included “liaising with contractors to ensure that the project was completed in accordance with cost time, safety, and quality control requirements and reporting to the MTA.”

The agreement did not confer authority on the CM, however, to control the methods used by the contractors to complete their work. Deposition testimony established that the CM did not assume responsibility for the manner in which the work was conducted. For these reasons, the appellate court found that the injured contractor employee failed to raise a triable issue of fact, and held that the trial court correctly granted the CM’s motion for summary judgment. Willie Lamar v. Hill International, Inc., et al., 153 A.D.3d 685, 59 N.Y.S.3d 756 (2017).

The court explained that in order to impose liability on a construction manager for a violation of New York Labor Law sections 200, 240(1), or 241(6), the plaintiff must show that the defendant had the authority to exercise supervision and control over the work that brought about the injury so as to enable the defendant to avoid or correct an unsafe condition. A CM of a work site is generally not responsible for the injuries under the Labor Law, according to the court, “unless it functions as an agent of the property owner or general contractor in circumstances where it has the ability to control the activity which brought about the injury.”

Here, the court found that only in the event of an emergency was the CM authorized to stop the work of the contractor. The CM, “was authorized only to review and monitor safety programs and requirements and make recommendations, provide direction to contractors regarding corrective action to be taken if any unsafe condition was detect, and stop work only in the event of any emergency.”

Deposition testimony demonstrated that the CM did not have control, or a supervisory role, over the plaintiffs’ day-to-day work and did not assume responsibility for the manner in which that works was conducted. The CM therefore satisfied the court that it had no control or supervisory authority over the plaintiff’s work so as to enable the CM to prevent or correct any unsafe conditions.

 

About the author: Article written by J. Kent Holland, Jr., a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners. He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects. He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932. This article is published in ConstructionRisk.com Report, Vol. 20, No. 1 (Jan 2018). Copyright 2018, ConstructionRisk, LLC