Opinion
January 23, 1996
Appeal from the Supreme Court, Bronx County (Alan Saks, J.).
The IAS Court properly denied defendant's cross motion as the uncontroverted documents and testimony refuted its claim that plaintiff was its special employee and was thus restricted to Workers' Compensation as his exclusive remedy ( see, Thompson v Grumman Aerospace Corp., 78 N.Y.2d 553, 557-558). The evidence revealed that control and supervision over plaintiff was exercised by Newmark Real Estate, Inc., defendant's managing agent and not by defendant ( see, Wawrzonek v Central Hudson Gas Elec. Corp., 276 N.Y. 412, 419), and that plaintiff was engaged in Newmark's business at the time of his accident ( see, Braxton v Mendelson, 233 N.Y. 122, 124).
Labor Law § 240 (1) imposes absolute liability upon defendant 500 Fifth Avenue Associates as owner of the premises for injuries sustained resulting from failure to provide proper equipment ( Zimmer v Chemung County Performing Arts, 65 N.Y.2d 513). As proof of the unsafe condition of the ladder was submitted, plaintiff's possible culpable conduct based on alleged improper placement of the ladder would not defeat the claim ( Bland v Manocherian, 66 N.Y.2d 452). Nor did the court err in refusing to reinstate the third affirmative defense, particularly inasmuch as the verification of the bill of particulars was not served for two years.
Concur — Ellerin, J.P., Kupferman, Ross, Williams and Tom, JJ.