State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 29, 2015 518022 

________________________________

MICHAEL LARKIN,

Appellant,

v MEMORANDUM AND ORDER

SANO-RUBIN CONSTRUCTION

COMPANY, INC., et al., 

Respondents.

________________________________

Calendar Date: November 20, 2014

Before: McCarthy, J.P., Garry, Lynch and Clark, JJ.

__________

Clifford J. Stern, LLC, New York City (James M. Lane of

counsel), for appellant.

Goldberg Segalla, LLP, Albany (Latha Raghavan of counsel),

for respondents.

__________

Garry, J.

Appeals (1) from an order of the Supreme Court (Devine,

J.), entered August 30, 2013 in Albany County, which, among other

things, granted defendants' cross motion for summary judgment

dismissing the complaint, and (2) from an order of said court,

entered February 3, 2014 in Albany County, which denied

plaintiff's motion for reconsideration.

In 2009, plaintiff's former employer, Atlantic Contracting

& Specialties, LLC, was hired by Niskayuna Central School

District to remove windows from a building at defendant Iroquois

Middle School. While working on this project, plaintiff was

injured when a window panel above where he was working suddenly

became dislodged, slid down its frame and pinned his right
-2- 518022 

shoulder between the panel and an empty space in the window

frame. Plaintiff thereafter commenced this action against the

school and defendant Sano-Rubin Construction Company, Inc.

seeking damages for his injuries and asserting violations of

Labor Law §§ 200, 240, and 241 (6), as well as common-law

negligence. Prior to the close of discovery, plaintiff moved for

partial summary judgment on his section 240 claim and defendants

cross-moved seeking dismissal of the complaint in its entirety. 

Supreme Court denied plaintiff's motion and granted defendants'

cross motion, dismissing the complaint. Plaintiff's subsequent

motion for renewal was denied. Plaintiff appeals from both

orders.1

At the time of plaintiff's injury, Sano-Rubin was serving

as the construction manager for various construction projects

occurring throughout the school district pursuant to a contract

it had entered into with the school district. Plaintiff

initially contends that there are factual issues as to whether

Sano-Rubin's role renders it a statutory defendant under Labor

Law § 240 (1), which "imposes liability only on contractors,

owners or their agents" (Blake v Neighborhood Hous. Servs. of

N.Y. City, 1 NY3d 280, 293 [2003]). Under this provision, a

party that is operating as a construction manager is not deemed a

statutory agent unless that party has "the authority to direct,

supervise or control the work which brought about the injury"

(Kindlon v Schoharie Cent. School Dist., 66 AD3d 1200, 1201

[2009]; see Walls v Turner Constr. Co., 4 NY3d 861, 864 [2005];

Blake v Neighborhood Hous. Servs. of N.Y. City, Inc., 1 NY3d at

293; Fisher v Hart, 27 AD3d 998, 999 [2006]). "The key criterion

in ascertaining Labor Law § 240 (1) liability is not whether the

party charged with the violation actually exercised control over

the work, but rather whether [that party] had the right to do so"

(Kelly v LeMoyne Coll., 199 AD2d 942, 943 [1993] [citations

omitted]). Similarly, under Labor Law § 200, which codifies the

common-law duty of care as between owners, general contractors

and their agents, the imposition of liability requires a showing

1 As plaintiff did not address Supreme Court's dismissal of

his claim pursuant to Labor Law § 241 (6), we deem any such claim

abandoned (see Deshields v Carey, 69 AD3d 1191, 1192 n 1 [2010]).
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that the defendant possessed the authority to direct or control

the activity resulting in injury (see Cook v Orchard Park

Estates, Inc., 73 AD3d 1263, 1264 [2010]; Fassett v Wegmans Food

Mkts., Inc., 66 AD3d 1274, 1275-1276 [2009]).

Sano-Rubin's contract with the school district provided

that Sano-Rubin "shall not have control over or charge of and

shall not be responsible for construction means, methods,

techniques, sequences or procedures, or for safety precautions

and programs in connection with the [w]ork of each of the

[c]ontractors" and further, that if Sano-Rubin "observes any

safety program or action at the site which it believes is

improper or in violation of applicable law or rules, it shall

immediately advise the [o]wner." This contract was submitted

upon the cross motion, together with proof of the implementation

of these contractual limitations on Sano-Rubin's authority, as

revealed by the affidavit testimony of its sole employee assigned

to the job site, as well as Atlantic's supervisor on the project. 

These witnesses both confirmed that Sano-Rubin had no authority

to direct or control the work being performed by plaintiff. 

These submissions were sufficient to establish its prima facie

right to judgment as a matter of law (see Rodriguez v JMB

Architecture, LLC, 82 AD3d 949, 951-952 [2011]). In opposition,

plaintiff relied primarily upon the affidavit of a private

investigator summarizing the hearsay statements of several

Atlantic workers. While there are recognized circumstances where

hearsay may be considered in opposition to a summary judgment

motion, here no reasonable excuse was proffered for failing to

tender evidence in admissible form (see Friends of Animals v

Associated Fur Mfrs., 46 NY2d 1065, 1068 [1979]; Meizinger v

Akin, 192 AD2d 1011, 1014 [1993], lv denied 82 NY2d 661 [1993];

Landisi v Beacon Community Dev. Agency, 180 AD2d 1000, 1002-1003

[1992]). Other documentary evidence submitted by plaintiff

failed to undermine Sano-Rubins's assertions. Thus, as plaintiff

failed to raise factual issues relative to Sano-Rubin's exercise

of supervisory control of the workplace or authority to direct

plaintiff's work, Supreme Court did not err in granting

defendants' cross motion for summary judgment dismissing the

complaint (see Rodriguez v JMB Architecture, LLC, 82 AD3d at 951;

Kindlon v Schoharie Cent. School Dist., 66 AD3d at 1201; Domino v

Professional Consulting, Inc., 57 AD3d 713, 714-715 [2008]).
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Following the return date of the parties' motions,

plaintiff sought to submit further evidence, by means of an

affidavit from one of plaintiff's coworkers. Supreme Court

exercised its broad discretion to allow an opportunity for the

parties to depose this proposed witness, who thereafter failed to

appear for this purpose. Upon review, we find that the court

properly considered the circumstances and determined that

defendants would be prejudiced if the untimely affidavit were

considered (compare Wilcox v Newark Val. Cent. Sch. Dist., 107

AD3d 1127, 1130 [2013]), and we find no abuse of discretion in

the court's initial ruling (see Fleck v Calabro, 268 AD2d 738,

738 [2000]). Finally, as to plaintiff's request for renewal,

such a motion must "be based upon new facts not offered on the

prior motion that would change the prior determination [and]

contain reasonable justification for the failure to present such

facts on the prior motion" (CPLR 2221 [e]; see 2 N. St. Corp. v

Getty Saugerties Corp., 68 AD3d 1392, 1396 [2009], lv denied 14

NY3d 706 [2010]). Plaintiff's motion met neither prong of this

test; no reasonable justification for failing to obtain and

submit timely proof was submitted and, notably, Supreme Court

found the statements within the affidavit to be speculative and

conclusory in nature, such that it would not have altered the

determination (see Rappaport v North Shore Univ. Hosp., 60 AD3d

1029, 1030 [2009]).

McCarthy, J.P., Lynch and Clark, JJ., concur.

ORDERED that the orders are affirmed, with costs.

ENTER:

Robert D. Mayberger

Clerk of the Court