| Inga v EBS N. Hills, LLC |
| 2010 NY Slip Op 00102 [69 AD3d 568] |
| January 5, 2010 |
| Appellate Division, Second Department |
| Gabino Inga, Respondent, v EBS North Hills, LLC, et al.,Appellants. |
—[*1] Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), forappellant R and B Drywall Corp. Dinkes & Schwitzer, P.C., New York, N.Y. (William A. Prinsell and Naomi J. Skura ofcounsel), for respondent.
In an action to recover damages for personal injuries, the defendants EBS North Hills, LLC,and North Hills Construction Corporation appeal, and the defendant R and B DrywallCorporation separately appeals, as limited by their respective briefs, from so much of an order ofthe Supreme Court, Queens County (Grays, J.), dated June 3, 2008, as granted that branch of theplaintiff's motion which was for summary judgment on the issue of liability pursuant to LaborLaw § 240 (1).
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable bythe defendants appearing separately and filing separate briefs.
The plaintiff allegedly sustained injuries while working on a construction project on propertyowned by EBS North Hills, LLC (hereinafter EBS). North Hills Construction Corporation(hereinafter North Hills), the general contractor, hired R and B Drywall Corporation (hereinafterR&B) to perform the drywall installation associated with the project, and R&B hired theplaintiff's employer to perform some of the work associated with the drywall installation.According to the plaintiff's affidavit and deposition testimony, the injuries occurred while he wasstanding on an open A-frame ladder, which was resting on the platform of a scaffold positionedon top of an elevator car inside an elevator shaft. The scaffold collapsed, causing the plaintiff tofall and sustain injuries. The plaintiff commenced this action against EBS, North Hills, andR&B.
The plaintiff made a prima facie showing of his entitlement to judgment as a matter of lawon the issue of liability on so much of the complaint as alleged that the defendants were inviolation of Labor Law § 240 (1) through the submission of his affidavit and depositiontestimony, which demonstrated that the ladder and scaffold failed to afford him proper protectionfor the work being performed, and that this failure was a proximate cause of his injuries (see Blake v Neighborhood Hous. Servs. ofN.Y. City, 1 NY3d 280 [2003]; Klein v City of New York, 89 NY2d 833, 835[1996]). [*2]The fact that the accident was unwitnessed does notpreclude granting summary judgment to the plaintiff (see Klein v City of New York, 89NY2d at 834-835; Barr v 157 5 Ave.,LLC, 60 AD3d 796, 797 [2009]; Rivera v Dafna Constr. Co., Ltd., 27 AD3d 545 [2006]). Inopposition, the defendants failed to raise a triable issue of fact. The defendants did not offer anyevidence, other than mere speculation, that undermined the prima facie case or presented a bonafide issue regarding the plaintiff's credibility as to a material fact (see Klein v City of NewYork, 89 NY2d at 835; Barr v 157 5 Ave., LLC, 60 AD3d at 798; Rivera vDafna Constr. Co., Ltd., 27 AD3d at 545-546).
Additionally, contrary to R&B's contention, it is liable under Labor Law § 240 (1) as astatutory agent of the owner or general contractor, since it had the authority to supervise andcontrol the particular work in which the plaintiff was engaged at the time of his injury (seeRussin v Louis N. Picciano & Son, 54 NY2d 311, 317-318 [1981]; Miller v Yeshiva Zichron MayirGedola, 44 AD3d 1017 [2007]; Taeschner v M & M Restorations, 295 AD2d598, 600 [2002]). Once R&B became such an agent, it could not escape liability by delegating itswork to another entity (see Tomyuk vJunefield Assoc., 57 AD3d 518, 521 [2008]; Nasuro v PI Assoc., LLC, 49 AD3d 829, 830-831 [2008];McGlynn v Brooklyn Hosp.-Caledonian Hosp., 209 AD2d 486 [1994]).
Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion whichwas for summary judgment on the issue of liability pursuant to Labor Law § 240 (1).Prudenti, P.J., Covello, Lott and Sgroi, JJ., concur.