| Weber v Baccarat, Inc. |
| 2010 NY Slip Op 01361 [70 AD3d 487] |
| February 16, 2010 |
| Appellate Division, First Department |
| Arthur Weber et al., Respondents-Appellants, v Baccarat,Inc., Appellant, 625 Madison Avenue Associates et al., Appellants-Respondents, and KingFreeze Mechanical Corp., Respondent, et al., Defendants. |
—[*1] Callan, Koster, Brady & Brennan, LLP, New York (Michael P. Kandler of counsel), for 625Madison Avenue Associates and Related Management Corp., appellants-respondents. Sheindlin & Sullivan, New York (Gregory Sheindlin of counsel), for Weberrespondents-appellants. Goldberg Segalla LLP, White Plains (William T. O'Connell of counsel), for King FreezeMechanical Corp., respondent.
Order, Supreme Court, New York County (Edward H. Lehner, J.), entered August 1, 2008,which, to the extent appealed from as limited by the briefs, granted plaintiffs' motion to severdefendant IDI Construction Company from the action and granted their motion for summaryjudgment on the issue of liability under Labor Law § 240 (1) as against defendantsBaccarat, Inc. and 625 Madison Avenue Associates only, unanimously modified, on the law, togrant the motion for summary judgment as against defendant King Freeze Mechanical Corp., andotherwise affirmed, without costs.
Plaintiff Arthur Weber was injured in a fall from the fourth or fifth rung of an A-frameladder on which he was standing while installing a heating, ventilation and air conditioning(HVAC) system in a ceiling. Plaintiff testified that he heard a "pop" and saw the right rear leg ofthe ladder shift forward and separate from the top plate, causing the ladder to fall. Thisuncontested testimony that the ladder broke by itself established prima facie a violation of Labor[*2]Law § 240 (1) and that the violation was a proximatecause of plaintiff's injuries (Panek v County of Albany, 99 NY2d 452, 458 [2003]; Belding v Verizon N.Y., Inc., 65AD3d 414 [2009]; D'Amico v Manufacturers Hanover Trust Co., 177 AD2d 441,442 [1991]). The fact that plaintiff was the only witness to his accident presents no bar tosummary judgment in his favor since defendants failed to present a conflicting theory withsupporting evidence or to raise any bona fide credibility issues with respect to his testimony(see Rodriguez v Forest City Jay St. Assoc., 234 AD2d 68, 69-70 [1996]; Klein vCity of New York, 222 AD2d 351, 352 [1995], affd 89 NY2d 833 [1996]).
Summary judgment should have been granted as against defendant King Freeze, as therecord shows that King Freeze was a statutory agent of defendant IDI Construction Company(see Russin v Louis N. Picciano & Son, 54 NY2d 311, 318 [1981]). King Freeze had theauthority to supervise and control the work being done by plaintiff pursuant to the terms of itssubcontract with IDI (see e.g. McGurk v Turner Constr. Co., 127 AD2d 526, 529[1987]). Moreover, it demonstrated this authority by subcontracting a portion of the HVAC workto plaintiff's employer (see Williams v Dover Home Improvement, 276 AD2d 626, 626[2000]). The fact that IDI possessed concomitant or overlapping authority to supervise the entirerenovation, including the installation of the HVAC system, does not negate King Freeze'sauthority to supervise and control the installation of the HVAC system (Nephew v Klewin Bldg. Co., Inc., 21AD3d 1419, 1420-1421 [2005]). Whether King Freeze actually supervised plaintiff isirrelevant (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500 [1993];Rizzo v Hellman Elec. Corp., 281 AD2d 258 [2001]).
The motion court properly granted plaintiffs' motion to sever defendant IDI from theproceedings, as discovery had been completed and the case was ready to go to trial at the timeIDI's bankruptcy petition was filed (see Golden v Moscowitz, 194 AD2d 385 [1993]),and severance does not prejudice the codefendants (see Roman v Hudson Tel. Assoc., 11 AD3d 346 [2004]).Concur—Saxe, J.P., Moskowitz, Abdus-Salaam and RomÁn, JJ.