MILLER v. Dynamic Air Flow Mechanical Corp., appellant. (2007)

In an action to recover damages for personal injuries, etc., the defendant Dynamic Air Flow Mechanical Corp. appeals from so much of an order of the Supreme Court, Kings County (Kramer, J.), dated June 26, 2006, as granted that branch of the plaintiffs' cross motion which was for summary judgment on the issue of liability on their Labor Law § 240(1) cause of action and denied its motion for summary judgment dismissing the causes of action to recover damages based on Labor Law §§ 240(1), 241(6), and § 200 and common-law negligence.

ORDERED that the order is affirmed insofar as appealed from, with costs.

A subcontractor will be held liable under Labor Law § 240(1) where it has become an agent of the owner or general contractor (see Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311, 317–318, 445 N.Y.S.2d 127, 429 N.E.2d 805;  Stevenson v. Alfredo, 277 A.D.2d 218, 220, 715 N.Y.S.2d 444).  Here, the plaintiffs established their prima facie entitlement to summary judgment on their Labor Law § 240(1) cause of action by demonstrating, inter alia, that the appellant, Dynamic Air Flow Mechanical Corp. (hereinafter Dynamic), had the authority to supervise and control the work which gave rise to the injured plaintiff's injuries, and thus was a statutory agent of the owner or general contractor (see Stevenson v. Alfredo, 277 A.D.2d 218, 220, 715 N.Y.S.2d 444;  Sog v. G.S.E. Dynamics, 239 A.D.2d 489, 491, 658 N.Y.S.2d 351;   McGlynn v. Brooklyn Hosp.–Caledonian Hosp., 209 A.D.2d 486, 619 N.Y.S.2d 54).  In opposition, Dynamic failed to raise a triable issue of fact.  Accordingly, the Supreme Court properly granted that branch of the plaintiffs' cross motion which was for summary judgment on their Labor Law § 240(1) cause of action.

Dynamic's remaining contentions are without merit.