| Borbeck v Hercules Constr. Corp. |
| 2008 NY Slip Op 01287 [48 AD3d 498] |
| February 13, 2008 |
| Appellate Division, Second Department |
| Dietor Borbeck et al., Appellants, v Hercules ConstructionCorp., Defendant, and Barney Construction Co., Inc., Respondent. |
—[*1] Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from ajudgment of the Supreme Court, Kings County (Held, J.), dated October 24, 2005, which, uponthe granting of the motion of the defendant Barney Construction Co., Inc., pursuant to CPLR4401 for judgment as a matter of law made at the close of the plaintiffs' case, is in favor of thatdefendant and against them, dismissing the complaint insofar as asserted against that defendant.
Ordered that the judgment is affirmed, with costs.
In this case, the defendant Barney Construction Co., Inc. (hereinafter the defendant), theconstruction manager of the subject project, was not a statutory agent of the owner pursuant toLabor Law § 240 (1). The evidence presented at the trial did not establish that thedefendant had the authority to enforce the provisions of the contracts entered into by the ownerwith the project's prime contractors. Nor did it have the authority to stop the work in the eventthat an unsafe condition or work practice came to light. Thus, the defendant did not have theauthority to control and supervise the work to become the owner's statutory agent (see Walls v Turner Constr. Co., 4NY3d 861, 863-864 [2005]; Linkowski v City of New York, 33 AD3d 971, 974-975 [2006]; cf. Pino v Irvington Union Free SchoolDist., 43 AD3d 1130 [2007]; Lodato v Greyhawk N. Am., LLC, 39 AD3d 491 [2007]; Kennyv Fuller Co., 87 AD2d 183, 189 [1982]). Accordingly, as there was "no rational process bywhich the fact trier could [*2]base a finding in favor" of theplaintiffs (Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]), the trial court correctly grantedthe defendant's motion pursuant to CPLR 4401for judgment as a matter of law.
We decline to consider the plaintiffs' contention that the trial court improvidently exercisedits discretion in denying their motion for leave to reopen their direct case after they rested, as it isimproperly raised for the first time in their reply brief (see Katchalova v Perchikov, 43 AD3d 873, 875-876 [2007]).
The parties' remaining contentions either need not be addressed or have been renderedacademic in light of our determination. Rivera, J.P., Santucci, Covello and Balkin, JJ., concur.