Opinion
December 9, 1993
Appeal from the Supreme Court, New York County (William Davis, J., Beverly Cohen, J.).
This is an action brought pursuant to Labor Law § 240 (1) in which plaintiff, a painter employed by third-party defendant Envirochrome and doing work at a branch of defendant Bank of New York, seeks to recover for injuries sustained as the result of a fall from a ladder. Plaintiff's motion for a directed verdict was timely since the Bank had closed its evidence with respect to the issue for which judgment was sought (see, CPLR 4401), the only Bank witness who had not yet testified being its medical expert. While the trial court acted within its discretion in precluding the testimony of the Bank's ladder expert for failure to comply both with CPLR 3101 (d) and a stipulation of the parties, in any event, the Bank was not prejudiced in any way by this ruling since the metallurgical deficiencies in the ladder were latent defects that could not have been discovered by Envirochrome through reasonable inspection, could not have provided it with constructive notice, and thus could not serve as a basis for finding it negligent (see, Delzotti v American LaFrance, 179 A.D.2d 497). No rational view of the evidence (see, Riccio v De Marco, 188 A.D.2d 847, 849) can support a finding either that Envirochrome was negligent or that its actions were a proximate cause of plaintiff's fall, and thus the directed verdict dismissing the Bank's claim against Envirochrome for common-law indemnification was properly granted (see, Young v Casabonne Bros., 145 A.D.2d 244, 247-248). Contrary to the Bank's argument, any statutory liability of Envirochrome, as a party in control of the work site or as the Bank's agent, creates rights running only to plaintiff, not from one tortfeasor to another (see, D'Amico v Manufacturers Hanover Trust Co., 177 A.D.2d 441, 443), and does not constitute negligence on the part of Envirochrome so as to provide the Bank with a right to indemnification.
Concur — Sullivan, J.P., Carro, Wallach and Asch, JJ.