For the purposes of Labor Law §§ 240 and 241, construction managers are typically not deemed a contractor or agent of a contractor. Borbeck v. Hercules Construction Corp., 48 A.D.3d 498 (2nd Dep’t 2008). However, if a construction manager has the ability to control an activity which brings about an injury, the construction manager may be held liable. Walls v. Turner Construction Co., 4 N.Y.3d 861 (1st Dep’t 2010).
Agency will be found in instances where a contract provides that a construction manager represents the owner in the performance of the work and, therefore, delegates the authority of the owner to the construction manager over all phases of the construction project. Kenny v. George A. Fuller Co., 87 A.D.2d 183 (2nd Dep’t 1982). Under similar circumstances, where a construction manager is found to have the power to provide design consultation, monitor project costs, schedule project efficiency for phases of the project, review design, and coordinate construction activities, the construction manager is found to be both a contractor and an agent pursuant to Labor Law §§ 240 and 241. Carollo v. Tishman Const. and Research Co., Inc., 440 N.Y.S.2d 437 (N.Y. Sup. Ct. 1981). A construction manager which is charged with the duty to coordinate all aspects of a project will be treated as a contractor pursuant to Labor Law §§ 240 and 241. Kenny, 87 A.D.2d 183. Furthermore, where a contract between the owner and construction manager provides that the construction manager would take every precaution necessary against injury and make daily observations of safety practices, the construction manager is found to have a duty to persons using the premises. Piccirillo v. Beltrone-Turner, 284 A.D.2d 854 (3rd dep’t 2001).
However, a construction manager is not in all circumstances found to be an agent of the owner. For example, in Loiacono v. Lehrer McGovern Bivos, Inc., an construction manager was not considered an agent of the owner where his responsibility was limited to the review of site safety and site coordination, including directing contractors where to work on any given day. 270 A.D.2d 464 (2nd Dep’t 2000).
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