Opinion
March 21, 2001.
Appeal from Order of Supreme Court, Monroe County, Bergin, J. — Summary Judgment.
PRESENT: PIGOTT, JR., P. J., GREEN, KEHOE, BURNS AND LAWTON, JJ.
Order insofar as appealed from unanimously reversed on the law without costs, cross motion denied, motion granted and complaint against defendant Wilmorite, Inc. dismissed.
Memorandum:
Supreme Court erred in denying that part of the motion of Wilmorite, Inc. (defendant) seeking summary judgment dismissing the claims alleging the violation of Labor Law § 240 (1) and § 241 (6) and in granting the cross motion of plaintiffs seeking summary judgment on the Labor Law § 240 (1) claim. Mitchell Phillips (plaintiff) was injured while working at a construction project at the Greater Rochester International Airport. Defendant, the construction manager on the project, met its initial burden of establishing its entitlement to judgment as a matter of law on those claims, and plaintiffs failed to raise a triable issue of fact ( see generally, Zuckerman v. City of New York, 49 N.Y.2d 557, 562). Defendant established as a matter of law that it was not an agent of the owner because the owner had not delegated to it the authority to supervise and control plaintiff's work ( see, Russin v Picciano Son, 54 N.Y.2d 311, 318; Griffin v MWF Dev. Corp., 273 A.D.2d 907, 908-909). We therefore reverse the order insofar as appealed from, deny the cross motion of plaintiffs, grant the motion of defendant in its entirety, and dismiss the complaint against it.