CPLR 4401

The Second Department affirmed the granting of defendant's motion for judgment as a matter of law, in Borbeck v. Hercules Construction Corp., which was decided on February 13, 2008. The court found that defendant-construction manager was not the owner's statutory agent, pursuant to Labor Law § 240(1). There was no evidence that defendant had the authority to enforce the provisions of the contracts entered into by the owner with the project's prime contractors. Nor did defendant have the authority to stop the work in the event that an unsafe condition or work practice came to light.

Practice point: Pursuant to CPLR 4401, a party may move for judgment as a matter of law after the other party has completed its presentation of evidence, or at any time based on admissions. The standard is whether there is any rational basis on which a fact-trier could find for the opposing party.