Friday, August 6, 2010

When Can A Construction Manager Actually Be A General Contractor?

In Salsinha v. Malcolm Pirnie, Inc., the First Department found that a question of fact existed as to whether a construction manager could be held liable to the plaintiffs under Labor Law sect. 241(6) based upon its contractual responsibility to choose subcontractors and testimony that it was "in charge of construction", i.e., the functions normally performed by a general contractor. The Court affirmed the dismissal of plaintiff's sect. 200 claim, however, on the basis that none of the defendant's exercised control over plaintiff's work methods.

The holding that Pirnie lacked control over the work suggests that Pirnie's potential liability under the Labor Law was not based upon Pirnie being a statutory agent of the owner - a finding that turns on whether control could have been exercised over the work. The Court of Appeals had held as much in Walls v. Turner Constr. Co. (4 N.Y.3d 861 [2005]). In Walls, the High Court found that the construction manager was a statutory agent of the owner in part on the basis that the construction manager had the authority to control the work and stop any unsafe work practices.

Thus, the First Department's holding in Salsinha may suggest that, if Pirnie were not an agent because it could not control the work, then, despite Pirnie's "construction manager" title, Pirnie could be held liable under the Labor Law as the "general contractor" for the project.

Therefore, Salsinha raises the question: What facts are necessary to establish that the construction manager for a particular project was actually the general contractor?

We will simply have to follow the case for the jury's answer.

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