In Kelarakos v. Massapequa Water Dist. (38 AD3d 717, 832 N.Y.S.2d 625 ), plaintiff's claims against a subcontractor ("D & M") under Labor Law §§ 200 and 241(6) were dismissed based, e.g., on its lack of "control" over plaintiff's work.
Nevertheless, his cause of action against the same subcontractor sounding in common-law negligence was sustained (id. at 719).
The language of the Court is instructive:
Here, it is undisputed that D & M neither controlled nor supervised the injured plaintiff's work since D & M had completed its work and had left the construction site before the injured plaintiff even began his work.... Thus, D & M was entitled to summary judgment dismissing the causes of action asserted against it which were predicated upon alleged violations of Labor Law §§ 200, 240(1), and 241(6).
However, the plaintiffs did raise questions of fact as to whether D & M negligently performed its work. Specifically, the plaintiffs raised triable issues regarding whether D & M improperly installed...hurricane clips and/or left uneven mortar mounds on the tops of the walls where the roof trusses were intended to rest, and whether such factors could have caused the trusses to become unstable, thereby causing or contributing to the accident which injured Nikiforos Kelarakos.
Accordingly, the Supreme Court properly denied that branch of D & M's motion which was for summary judgment dismissing the plaintiffs' cause of action alleging common-law negligence (id. at 719 ).