Partner Nancy Lewis and Senior Associate Kevin McArdle Win Summary Judgment in Labor Law Case

Fleischner Potash recently obtained an award of summary judgment on behalf of its client, a construction manager, in a Kings County Labor Law case arising out of an injury suffered by a worker at a construction site.  The decision granted the motion in its entirety, and dismissed the plaintiff’s Labor Law §§ 240(1), 241(6) and 200 claims, as well as the plaintiff’s common-law negligence cause of action. Correspondingly, the court also denied the plaintiff’s motion for summary judgment  with regard to his Labor Law causes of action.

The court agreed with Fleischner Potash’s argument that our client’s role at the construction site was that of a construction manager who lacked the authority to supervise or control the work that the plaintiff was involved in at the time of the accident, and that as a consequence, it was not subject to liability under the Labor Law as a general contractor, or a “statutory agent” of the property owner and/or general contractor. The court also agreed that the construction manager, for this same reason, could not be found liable under common law negligence principles.  The court’s decision was based, in part, upon our client’s contract with property owner, which stated explicitly, among other things, that our client “shall not have control over or charge of, and shall not be responsible for, acts or omissions of the Contractor or Multiple Prime Contractors, Subcontractors, or their agents or employees, or any other persons or entities performing portions of the Work.”  Our client’s contract with the general contractor noted that the general contractor’s role at the construction site was that of broad and comprehensive responsibilities, including safety obligations and supervision over the workers and the performance of their work).  This coupled with the testimony elicited during the depositions as well our client’s affidavits led the Court to grant the motion for summary judgment.  In fact, notwithstanding plaintiff and co-defendants endeavoring to raise a triable issue of fact by pointing to conflicting deposition testimony from the property owner and general contractor concerning the scope of authority and control at the work site, the trial judge was not persuaded by their testimony and concluded that it did not suffice to raise a legitimate factual question requiring denial of our motion.   Further, the trial court accepted our interpretation of the applicable authority  that a construction manager is not considered a “general contractor” responsible for the safety of workers at a construction site pursuant to the Labor Law.
To learn more about this decision please contact Nancy or Kevin at (646) 520-4200 or by email at and To learn how Fleischner Potash LLP can help with your Labor Law defense claims, please contact Wendy Cardali at (646-520-4200) or by email at

A copy of the decision and order can be found below.