As a New York County trial court recently held in Mian v. City of New York, however, an important distinction must be drawn between a general contractor - who is explicitly named as a potentially liable party under the Labor Law - and a construction manager, who, although it will often be held liable as an "agent" of the owner, is not explicitly named as a potentially liable party under the Labor Law.
In granting the construction manager's renewed motion for summary judgment, the Court articulated the litmus test for the construction manager's liability for a construction site accident as follows:
"In general, a construction manager customarily functions as an agent of the owner in an advisory capacity only. Nevertheless, when the particular construction management contract calls for the construction manager to exercise oversight of the work progress, to enforce safety regulations, and to stop the work when unsafe practices occur, the courts have reasoned that the construction manager has the requisite supervision and control of the work so as to render the construction manager liable as a statutory agent under the Labor Law. See, Walls v. Turner Constr. Co. et al., 4 N.Y.3d 861, 863 (2005); see also, Blake v. Neighborhood Housing Services of New York City, 1 N.Y.3d 280, 293 (2003)."
In this particular case, the Court found that the construction manager did not contractually or affirmatively assume any control over the general work site, or plaintiff's word performance, in particular, nor were they liable in common law negligence (Labor Law §200), because there was no evidence that they had any control over the work that purportedly caused plaintiff's accident.
