
    George Russin et al., Appellants, v Louis N. Picciano & Son et al., Defendants-Respondents and Third-Party Plaintiffs-Appellants. Village of Endicott et al., Third-Party Defendants-Respondents.
    Argued October 22, 1981;
    decided November 24, 1981
    
      POINTS OF COUNSEL
    
      Stephen D. Smyk for appellants.
    I. Sections 240 and 241 require all contractors to afford proper protection to people lawfully upon a construction site and impose upon all contractors on the construction site a nondelegable duty to afford such protection. (Allen v Cloutier Constr. Corp., 44 NY2d 290.) II. The manner in which the contracts were let for the clubhouse construction cannot circumvent the intended legislative protection afforded by the statute. (Haimes v New York Tel. Co., 46 NY2d 132; Dole v Dow Chem. Co., 30 NY2d 143.) III. Respondent Picciano had a common-law and statutory obligation to insure that its ladder would not be used in a careless or haphazard manner and its failure to take adequate steps to proscribe the improper use of that ladder creates a question of fact for a jury to resolve as' to whether good construction practices were being carried out and whether a violation of such practices was a proximate cause of Russin’s injuries. (Monroe v City of New York, 67 AD2d 89.)
    
      Robert H. Wedlake for Louis N. Picciano & Son, defendant-respondent and third-party plaintiff-appellant.
    I. Sections 240 and 241 of the Labor Law do not, under the facts of this case, impose any liability on def endants-respondents. (Allen v. Cloutier Constr. Corp., 44 NY2d 290; Sarnoff v Charles Schad, Inc., 22 NY2d 180; Page v La Buzzetta, 73 AD2d 483.) II. The allegations of appellant Russin in regards to the alleged “Picciano ladder” alone cannot constitute a question of fact for the trier of fact: respondent Picciano did not breach its duty to provide appellant with a safe place to work. (Hamill v Foster-Lipkins Corp., 41 AD2d 361; Reynolds v Brady & Co., 38 AD2d 746; Dittiger v Isal Realty Corp., 264 App Div 279; Persichilli v Triborough Bridge & Tunnel Auth., 16 NY2d 136; Rusin v Jackson Hgts. Shopping Center, 27 NY2d 103.) III. If appellant Russin’s cause of action is reinstated against respondent Picciano, then respondent Picciano’s third-party cause of action should be reinstated against third-party respondents Village of Endicott and A. J. Cerasaro, Inc.
    
      Martin J. Kane for Matco Electric Co., Inc., defendant-respondent and third-party plaintiff-appellant.
    I. There was no breach by Mateo of any duty to provide plaintiff-appellant with a safe place to work. (Dittiger v Isal Realty Corp., 264 App Div 279; Schnur v Shanray Constr. Corp., 31 AD2d 513; Dinkuhn v Western N. Y. Water Co., 279 NY 606; Rusin v Jackson Hgts. Shopping Center, 27 NY2d 103; Reynolds v Brady & Co., 38 AD2d 746.) II. Matco is not a contractor within the meaning of sections 240 and 241 of the Labor Law. (Depot Constr. Co. v City of New York, 46 NY2d 859; Allen v Cloutier Constr. Corp., 44 NY2d 290; Page v La Buzzetta, 73 AD2d 483.) III. Matco’s third-party complaint against the Village of Endicott and Cerasaro must be reinstated if the decision of the Appellate Division, Third Department, is reversed. (Allen v Cloutier Constr. Corp., 44 NY2d 290; Kelly v Diesel Constr. Div. of Carl A. Morse, Inc., 35 NY2d 1.)
    
      Edward B. Flink for Stellmack Air Conditioning & Refrigeration Corp., defendant-respondent and third-party plaintiff-appellant.
    I. Sections 240 and 241 of the Labor Law do not affix liability for plaintiff’s accident upon Stellmack. (Kappel v Fisher Bros., 6th Ave. Corp., 39 NY2d 1039; Tallarico v Long Is. Light. Co., 45 AD 2d 845, 38 NY2d 733; Scavone v State Univ. Constr. Fund, 46 AD2d 895; Allen v Cloutier Constr. Corp., 44 NY2d 290; Haimes v New York Tel. Co., 46 NY2d 132; Hamill v Foster-Lipkins Corp., 41 AD 2d 361; Matter of Beckwith, 57 AD2d 415.) II. Stellmack is not liable for plaintiff’s accident pursuant to section 200 of the Labor Law since there is no evi-
    
      dence that Stellmack controlled or supervised the dismantling operation; was negligent in respect thereto; had notice of any defect in the workplace; or did anything which in any way caused or contributed to the occurrence of George Russin’s accident. (Monroe v City of New York, 67 AD2d 89; Ramos v State of New York, 34 AD2d 1056, 28 NY2d 487; Schnur v Shanray Constr. Corp., 31 AD2d 513; Rusin v Jackson Hgts. Shopping Center, 27 NY2d 103; Persichilli v Triborough Bridge & Tunnel Auth., 16 NY2d 136; Wright v Belt Assoc., 14 NY2d 129; Zucchelli v City Constr. Co., 4 NY2d 52; Dawson v Diesel Constr. Co., 51 AD2d 397; Grant v Rochester Gas & Elec. Corp., 20 AD2d 48.) III. If plaintiffs’ amended complaint against Stellmack is reinstated by this court, Stellmack’s third-party complaint against the Village of Enclicott and Cerasaro must also be reinstated. (Allen v Cloutier Constr. Corp., 44 NY2d 290; McFall v Compagnie Mar. Beige [Lloyd Royal] S. A., 304 NY 314; Phoenix Bridge Co. v Creem, 102 App Div 354, 185 NY 580; Oceanic Steam Nav. Co. [Ltd] v Compania Transatlantica Espanola, 134 NY 461; Village of Port Jervis v First Nat. Bank of Port Jervis, 96 NY 550; Rogers v Dorchester Assoc., 32 NY2d 553.)
    
      Robert H. Reeder for A. J. Cerasaro, Inc., third-party defendant-respondent.
    I. The court below was correct in holding that there was no breach of any duty to provide plaintiff-appellant with a safe place to work. (Dittiger v Isal Realty Corp., 264 App Div 279; Rusin v Jackson Hgts. Shopping Center, 27 NY2d 103; Ortiz v Uhl, 39 AD2d 143; Leahy v Botnick, 35 AD2d 898; Bidetto v New York City Housing Auth., 25 NY2d 848; Mullin v Genesee County Elec. Light., Power & Gas Co., 202 NY 275; Dinkuhn v Western N. Y. Water Co., 279 NY 606; Hamill .v Foster-Lipkins Corp., 41 AD2d 361; Maceda v Ellis Chingos Constr. Corp., 12 AD2d 801; Pantori v Welsbach Corp., 43 AD2d 517.) II. The court below was correct in holding that there was no duty on behalf of defendants-respondents under the facts in this case to this plaintiff-appellant under sections 240 or 241 of the Labor Law. (Wright v Belt Assoc., 14 NY2d 129; Koenig v Patrick Constr. Corp., 298 NY 313; Joyce v Rumsey Realty Corp., 17 NY2d 118; Curtis v State of New York, 23 NY2d 976; Sarnoff v Charles 
      
      Schad, Inc., 22 NY2d 180; Allen v Cloutier Constr. Corp., 44 NY2d 290; Haimes v New York Tel. Co., 46 NY2d 132; Reynolds v Brady & Co., 38 AD2d 746.)
    
      Patrick J. Leary for Village of Endicott, third-party defendant-respondent.
    I. The reinstatement of plaintiffs’ complaint against any of defendants and third-party plaintiffs would necessarily imply a finding that defendant reinstated against was acting as the agent of the village with respect to the construction detail at issue. (Allen v Cloutier Constr. Corp., 44 NY2d 290; Haimes v New York Tel. Co., 46 NY2d 132; Page v La Buzzetta, 73 AD2d 483.) II. Given the procedural framework of the instant litigation, there is no conceivable basis for any direct liability to plaintiffs on the part of the third-party defendant village. (Malette v Loblaws, Inc., 61 AD2d 1054.) III. If plaintiff sustained injury as a result of breach of statutory duty by any of defendant third-party plaintiffs to whom that duty had been delegated by the village, then the complete defense of indemnity requires that the third-party complaints against the village stand dismissed. (Kelly v Diesel Constr. Div. of Carl A. Morse; Inc., 35 NY2d 1.) IV. Because any potential liability on the part of the third-party defendant village is purely derivative and vicarious, there is no basis for reinstating any third-party complaint against the village. (Rogers v Dorchester Assoc., 32 NY2d 553.)
   OPINION OF THE COURT

Wachtler, J.

The question presented on this appeal is whether various prime contractors not in privity with the general contractor of a construction project may be held liable under sections 200, 240 and 241 of the Labor Law for construction site injuries sustained by a workman employed by the general contractor in the course of completing work for which the general contractor was solely responsible. We agree with the Appellate Division that the prime contractors incur no liability for personal injuries arising out of work not specifically delegated to them.

Plaintiff George Russin was injured in a construction site accident which occurred at the En-Joie Golf Course in the Village of Endicott, New York. At the time of the accident plaintiff was employed by the general contractor for the project, A. J. Cerasaro, Inc. (Cerasaro). The plaintiff commenced this action against defendants Mateo Electric Co., Inc. (Mateo), Louis N. Picciano & Son (Picciano) and Stellmack Air Conditioning Refrigeration Corp. (Stellmack) for personal injuries arising out of alleged violations of sections 200, 240 and 241 of the Labor Law. Neither the Village of Endicott, the owner of the golf course, nor Cerasaro, as general contractor, were named as defendants.

The construction of a new clubhouse at the En-Joie Golf Course proceeded pursuant to separate contracts between the Village of Endicott and seven individual contractors. These contracts were entered into between the owner and the various contractors, rather than between the general contractor and those contractors, and therefore constituted separate prime contracts. The plumbing contract was awarded to Picciano, the electrical contract to Mateo and the heating, ventilation and air-conditioning contract to Stellmack.

Plaintiff was injured while descending from a scaffold he was dismantling at the direction of his employer, Cerasaro. He stepped on a ladder leaning against the scaffold to negotiate the last few feet of the descent and as he did so it turned and gave way, causing him to fall. The ladder was owned by Picciano.

The general contractor, Cerasaro, was responsible for the co-ordination and execution of all the work under all the contracts. Cerasaro was also in full control of plaintiff and the area in which he was working at the time of his injury. The Appellate Division found that as prime contractors, the defendants had no contractual arrangement with the general contractor and were, therefore, not in a position to control any of the activity which generated the injury. Accordingly, the Appellate Division held that defendants could not be liable to plaintiff under sections 200, 240 and 241 of the Labor Law. We agree.

Section 200 of the Labor Law merely codified the common-law duty imposed upon an owner or general contractor to provide construction site workmen with a safe place to work (Allen v Cloutier Constr. Corp., 44 NY2d 290, 299). An implicit precondition to this duty to provide a safe place to work is that the party charged with that responsibility have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition (Reynolds v Brady & Co., 38 AD2d 746). As defendants’ contracts were with the Village of Endicott and not with plaintiff’s employer, the general contractor, they had no ability to control either plaintiff or the dismantling of the scaffolding which eventuated in his injury. Without this authority to control the activity producing the injury, defendants could not be liable to plaintiff under section 200 for failure to provide a safe place to work.

Similarly, sections 240 and 241 impose no liability on defendants for plaintiff’s injury. Although the statutes appear to impose liability unequivocally on “[a] 11 contractors and owners and their agents” (Labor Law, § 240, subd 1; §241 [emphasis added]), this language must be interpreted in light of the historical development of these provisions.

It is evident from the legislative history of the 1969 amendments to sections 240 and 241 (L 1969, ch 1108, §§ 1, 3), that these revisions were intended to shift responsibility for construction site injuries from those parties without control of the injury producing activity to the general contractor and owner. Thus, the legislative memorandum supporting the 1969 amendments provides in pertinent part: “This bill places ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractors. * * * Under the present Sections 240 and 241 of the Labor Law, the non-delegable duty has shifted from the general contractor and owner to the subcontractor, making him responsible for many things that he has no control of, such as coordination and overall supervision of the work.” (NY Legis Ann, 1969, pp 407-408 [emphasis added].)

Although sections 240 and 241 now make nondelegable the duty of an owner or general contractor to conform to the requirement of those sections (Haimes v New York Tel Co., 46 NY2d 132; Allen v Cloutier Constr. Corp., 44 NY2d 290, supra), the duties themselves may in fact be delegated (Page v La Buzzetta, 73 AD2d 483). When the work giving rise to these duties has been delegated to a third party, that third party then obtains the concomitant authority to supervise and control that work and becomes a statutory “agent” of the owner or general contractor. Only upon obtaining the authority to supervise and control does the third party fall within the class of those having nondelegable liability as an “agent” under sections 240 and 241. To hold otherwise and impose a nondelegable duty upon each contractor for all injuries occurring on a job site and thereby make each contractor an insurer for all workers regardless of the ability to direct, supervise and control those workers would lead to improbable and unjust results and would directly contravene the express legislative history accompanying the 1969 amendments to these provisions.

Our interpretation of the statutory “agent” language appropriately limits the liability of a contractor as agent for a general contractor or owner for job site injuries to those areas and activities within the scope of the work delegated or, in other words, to the particular agency created. Stellmack, for example, was the Village of Endicott’s agent with respect to the heating, ventilation and air-conditioning work. It was not the village’s agent with respect to the general construction activity which produced the plaintiff’s injury, i.e., the erection, maintenance and dismantling of the scaffolding equipment.

In the case now before us the two parties with nondelegable statutory liability for plaintiff’s injury, the general contractor and the owner, were not named as defendants in the action. The three prime contractors who were sued were only responsible for plumbing, electrical, and air-conditioning, heating and ventilation installation. Accordingly, these defendants were never delegated the general construction work in which plaintiff was engaged at the time of his injury and therefore were in no way responsible for the work giving rise to the duties referred to in and imposed by sections 240 and 241 of the Labor Law. For these reasons, the order of the Appellate Division should be affirmed.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Fuchsberg and Meyer concur.

Order affirmed, with costs to defendants-respondents against plaintiffs-appellants and to third-party respondents against thirty-party appellants.  