Opinion
April 10, 1980
Appeal from the Supreme Court, Otsego County, ROBERT A. HARLEM, J.
Jacobs Jacobs (Patrick J. Cannon and Michael A. Jacobs of counsel), for appellants.
Livingston S. Latham for third-party plaintiff-respondent. Coughlin Gerhart (Peter H. Bouman of counsel), for third-party defendants-respondents.
This action involves the same basic facts as those in Page v State of New York ( 73 A.D.2d 479). The liability imposed by subdivision 6 of section 241 Lab. of the Labor Law is absolute insofar as owners, contractors and their agents are concerned (Allen v Cloutier Constr. Corp., 44 N.Y.2d 290, 300; Page v. State of New York, supra).
The defendant La Buzzetta contends that he is not within the class of persons upon whom liability is imposed because of his status as an independent contractor employed by the employer of plaintiff Bruce John Page, Sr. However, that argument is insufficient to raise any issue affecting the issue of liability since La Buzzetta was an agent of the contractor for the purpose of carrying out the contract within the meaning of the statute. While the purpose of the 1969 amendment to section 241 Lab. of the Labor Law (L 1969, ch 1108) was to make the liability of an owner or general contractor nondelegable (Allen v. Cloutier Constr. Corp., supra), liability arises out of the duties referred to in said section 241 and simply may not be escaped by delegation. The duties themselves remain delegable, and the undifferentiated reference to "All contractors * * * and their agents" necessarily includes subcontractors in the class of those having nondelegable liability. (See Kelly v. Diesel Constr. Div. of Carl A. Morse, Inc., 35 N.Y.2d 1, 7.) Accordingly, La Buzzetta is subject to nondelegable liability for a breach of section 241 Lab. of the Labor Law, and upon the present record, the existence of such a breach is established. (See, also, Page v. State of New York, supra.)
The present record conclusively establishes liability on the part of La Buzzetta, and plaintiffs should have been granted summary judgment establishing the liability of La Buzzetta.
The order should be modified, on the law, by striking so much thereof as denied plaintiffs' motion for summary judgment and granted defendant's motion for summary judgment on the issue of defendant's liability under section 241 Lab. of the Labor Law and by inserting a provision granting the motion of plaintiffs for summary judgment on the issue of defendant's liability under section 241 Lab. of the Labor Law, and matter remitted for assessment of damages and determination of defendant's third-party claim, and, as so modified, affirmed, with costs to plaintiffs against defendant.
MAHONEY, P.J., GREENBLOTT, MAIN and MIKOLL, JJ., concur.
Order modified, on the law, by striking so much thereof as denied plaintiffs' motion for summary judgment and granted defendant's motion for summary judgment on the issue of defendant's liability under section 241 Lab. of the Labor Law and by inserting a provision granting the motion of the plaintiffs for summary judgment on the issue of defendant's liability under section 241 Lab. of the Labor Law, and matter remitted for assessment of damages and determination of defendant's third-party claim, and, as so modified, affirmed, with costs to plaintiffs against defendant.