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Mederos v 147 Amsterdam LLC
April 1, 2025
Appellate Division, First Department
Plaintiff's ward (Vinicio) was injured in an accident involving a scaffold, although no one witnessed the accident itself, and Vinicio's injuries prevent him from recalling how the accident occurred. After hearing a sound, witnesses discovered Vinicio on the ground next to a collapsed/overturned scaffold. The Trial Court granted plaintiff’s motion for partial summary judgment on his Labor Law §240(1) claim.
 Labor Law § 240(1) (EDA)
The Appellate Division unanimously affirmed the motion court finding that the evidence was sufficient to establish plaintiff's prima facie entitlement to summary judgment on the Labor Law § 240 (1) claim as the evidence was sufficient to conclude that Vinicio fell from the scaffold, and that the absence of proper protection was at least a proximate cause of his accident.
PRACTICE POINT: Unlike pondering whether there is a sound if a tree falls in the woods and there is no one there to hear it, if a person falls from a scaffold, but no one sees it, there can be a Labor Law § 240(1) claim.
Cunningham v City of New York
April 3, 2025
Appellate Division, First Department
Plaintiff, an environmental inspector employed by the New York City Transit Authority (NYCTA). Plaintiff was taking samples from a subterranean electrical closet in downtown Manhattan in advance of a project to repair damage incurred during Superstorm Sandy. Those samples would be sent for testing, and then, only after the area was found clear of asbestos or an asbestos contractor engaged by NYCTA had performed mediation, would defendant TCE begin its contracted for work.
The Trial Court denied plaintiff motion for partial summary judgment on his Labor Law §240(1) and 241(6) claims and granted motion of the defendants dismissing plaintiff’s complaint.
Labor Law § 240(1) (EDA)
The Appellate Division unanimously affirmed the motion court finding that Plaintiff's reliance on McNeill v LaSalle Partners (52 AD3d 407 [1st Dept 2008]) was misplaced. At the time he was injured, the plaintiff in McNeill was monitoring ongoing asbestos abatement in an active construction worksite, while, here, the work had not begun. Plaintiff's work as an environmental inspector was merely investigatory, terminating prior to the actual commencement of any subsequent asbestos removal work, and was not encompassed by the statute.
PRACTICE POINT: To be covered under the statute, the enumerated work must be underway. Activities like inspections or preliminary planning for a construction project, if not part of the actual construction work itself, are not covered. It is important to get specific details of what stage in the project the incident occurred and what activity the injured plaintiff was engaged in.
Labor Law § 200 and Common-Law Negligence (EDA)
The Appellate Division unanimously affirmed the motion court finding that Plaintiff was unpersuasive in arguing that, as an employee of NYCTA, he was under the supervision and control of NYCTA's contractors. The contracts also showed that NYCTA retained ultimate control over its property and employees. Neither TCE, a contractor, nor Liro, the construction manager, were permitted in the area until after asbestos sampling by NYCTA employees and asbestos remediation by other NYCTA contractors had been completed. The Court further held that the City was an out-of-possession landlord who cannot be liable under the facts here (see Arteaga v City of New York, 101 AD3d 454, 454 [1st Dept 2012]).
Hartrum v Montefiore Hosp. Hous. Section II Inc.
April 3, 2025
Appellate Division, First Department
Plaintiff laborer was employed by third-party defendant Electronic Services Solutions, Inc. (ESS), which was engaged in the decommissioning and removal of communications equipment owned by Flo TV Incorporated and Mediaflo USA, Inc. (collectively, Flo) that was located on the roof of a building owned by Monte Housing. The roof was leased by Monte Housing to collective defendants SBA Site Management, LLC, SBA Site Management, LLC, as successor-in-interest to AAT Communications Corp., and AAT Communications LLC (SBA), and SBA subleased space to Flo. When the sublease terminated, Flo engaged the services of general contractor KMB Design Group, LLC (KMB) to remove its equipment, and KMB subcontracted the work to third-party defendant ESS. While a piece of sheet metal was being hand-hoisted, without tag lines, from a penthouse bulkhead roof to the main roof 20 feet below, it began to swing wildly, striking plaintiff and causing significant lacerations to his arm. Plaintiff brought
The Trial Court denied plaintiff’s motion for partial summary judgment on his Labor Law §240(1), denied motions of Monte Housing, SBA, Flo & KMB for summary judgement on plaintiff’s claims, and denied summary judgment on asserted contractual indemnity claims made by Defendants Monte Housing, Flo, SBA, & KMB.
Labor Law § 240(1) (EDA)
The Appellate Division unanimously affirmed the motion court finding that although Flo argued that the supervisor also testified to an inconsistent version of events plaintiff purportedly gave while in the hospital, that ambiguous description can be read consistently with the version on plaintiff's C-3 report and deposition testimony. Moreover, to the extent there were discrepancies, the purported alternate version would still lead to Labor Law § 240(1) liability. Thus, even assuming the conversation occurred and it was inconsistent, it was a distinction without a difference.
The Appellate Division also found SBA's claim that it is not a proper Labor Law defendant because it was effectively an out-of-possession lessor is unpersuasive. Although it was their sublessee that contracted with KMB for the equipment removal, SBA's lease with Monte Housing required it to ensure that the equipment was erected and maintained in a safe manner. Its sublease with Flo did not transfer all of its right in the property and SBA's workers continued to visit the site on an as needed basis to check equipment and read meters. Furthermore, SBA's manager coordinated the equipment removal project for Flo. Under these facts, the Appellate Division found that motion court correctly found that SBA was a statutory defendant.
PRACTICE POINT: A party may be vicariously liable as an agent of the owner for injuries where the party had the ability to control the activity which brought about the injury. When the work giving rise to the duty to conform to the requirements of Labor Law § 240(1) has been delegated to a third-party, that third-party then obtains the concomitant authority to supervise and control that work and becomes a statutory agent of the owner or general contractor. Where, as here, the party had such supervisory control and authority, they are an appropriate Labor Law defendant.
Labor Law § 200 and Common-Law Negligence (EDA)
The Appellate Division unanimously overruled the motion court finding that Plaintiff's Labor Law § 200 and common-law negligence claims should be dismissed against all defendants because the accident arose from the means and methods of the work being performed, i.e., the hoisting of sheet metal from the penthouse bulkhead roof to the main roof 20 feet below. There is no evidence that anyone exercised supervisory control over the means and methods of that activity other than the ESS foreman, who was also solely responsible for planning the hoisting.
 Indemnity Issues in Labor Law (AMC)
The Appellate Division held that the Montefiore defendants are entitled to contractual indemnity from SBA as the indemnification provision in the lease was triggered by claims arising out of the use and occupancy of the leased premises by SBA or its subtenants.
The Appellate Division held that Monte Housing is entitled to indemnity from Flo as the indemnity provision in the sublease between SBA and Flo was triggered where a claim is brought as a result of removal of the equipment at the premises.
SBA is also entitled to indemnity from Flo pursuant to the terms of the lease. Although SBA is a proper Labor Law defendant and thus subject to statutory liability, there is no evidence that it was negligent. Thus, claims that indemnity is premature due to possible operation of General Obligations Law are unpersuasive.
Finally, the Appellate Division found that both Flo and KMB are entitled to conditional indemnification over KMB and ESS, respectively. Although the indemnification provisions are triggered, there has yet to be a jury finding as to the extent of ESS’s culpability; thus, conditional indemnification is appropriate.
Alonso v Cabgram Dev., LLC
April 8, 2025
Appellate Division, First Department
Plaintiff was struck by a wooden plank dropped by coworkers while constructing the second level of a 16-foot tall, wheeled scaffold and then was struck by the scaffold when it fell over and landed on top of him.
The Trial Court denied plaintiff's motion for summary judgment on liability on his Labor Law § 240(1) cause of action and denied the motion of defendant Cabgram Developer LLC for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) causes of action.
Labor Law § 240(1) (EDA)
The Appellate Division unanimously overruled the motion court finding that the collapse of a scaffold is one of those special hazards contemplated by the statute, and an accident caused by a scaffold collapse is prima facie evidence of a Labor Law § 240(1) violation. Cabgram's argument that summary judgment was not warranted because the scaffold was not defective is unpersuasive because plaintiff did not need to demonstrate that the scaffold was defective to establish his prima facie case.
PRACTICE POINT: A plaintiff is not required to demonstrate that a scaffold is defective to be entitled to summary judgment. A falling object, like the boards, striking the Plaintiff are objects either being hoisted or in need of securing.
Vivar v Citigroup Tech., Inc.
April 8, 2025
Appellate Division, First Department
Plaintiff was removing ductwork attached to the ceiling when a piece of duct that had been cut by a coworker fell, causing him to fall backwards off the ladder.
Trial Court denied plaintiff’s motion for summary judgment on his Labor Law §240(1) claim.
Labor Law § 240(1) (EDA)
The Appellate Division unanimously overruled the motion court finding that the Plaintiff demonstrated prima facie entitlement to summary judgment through his deposition testimony that as he was removing ductwork attached to the ceiling, a piece of duct that had been cut by a coworker fell, causing him to fall backwards off the ladder. Furthermore, defendant's witness testified that when items were cut out of ceiling hangars, as the duct was, they normally were secured and did not fall freely. This testimony established that plaintiff's accident involved the application of the force of gravity to an object.
In opposition, defendant failed to raise a triable issue of fact. Defendant submitted the affidavit of its foreman, who averred that after the accident, plaintiff told him that he, plaintiff, fell from the ladder because he had jumped down several rungs. The Supreme Court admitted this statement under the excited utterance exception to the hearsay rule, finding that it raised a triable issue of fact sufficient to defeat summary judgment. The Appellate Division held this finding was error. According to the foreman, plaintiff was taking a break and told the foreman that he felt "fine" when he made the statement. Thus, there was no evidence that plaintiff made the purported hearsay statement "under the stress of excitement".
PRACTICE POINT: Where a plaintiff is the sole witness to an accident, an issue of fact may exist where he or she provides inconsistent accounts of the accident, his or her account of the accident is contradicted by other evidence, or his or her credibility is otherwise called into question with regard to the accident. If you recall our January commentary on this issue, inadmissible hearsay, still may still be considered on summary judgment when it is not the only evidence in the record, which was not the case here.
Cusumano v Super P57 LLC
April 15, 2025
Appellate Division, First Department
While Plaintiff was in the process of repositioning a chain fall, he was struck by a double-I beam weighing more than 1,000 pounds that was not secured to the dolly on which it was resting. Trial Court denied defendant’s motion for summary judgment on his Labor Law §240(1) claim, and granted plaintiff's cross-motion for summary judgment on that cause of action.
Labor Law § 240(1) (EDA)
The Appellate Division unanimously affirmed the motion court finding that the Plaintiff established prima facie entitlement to summary judgment on his Labor Law § 240(1) cause of action on the facts. Contrary to defendants' argument, plaintiff repeatedly identified clamps as a readily available safety device that would have secured the double-I beam to the dolly. In opposition, defendants failed to raise an issue of fact as to whether plaintiff was the sole proximate cause of his accident. Even if plaintiff's accident occurred as he was attempting to move the double-I beam by himself, this would, at most, constitute comparative negligence, which is not a defense to a Labor Law § 240(1) cause of action.
PRACTICE POINT: This case is another example of the sole proximate cause defense. A defendant has no liability under § 240(1) when plaintiff: (1) had adequate safety devices available, (2) knew both that the safety devices were available and was expected to use them, (3) chose for no good reason not to do so, and (4) would not have been injured had he or she not made that choice. Here, plaintiff was entitled to summary judgment as defendants failed to raise a triable issue of fact as to the sufficiency of the equipment provided and whether plaintiff’s negligence was the sole cause of his injury.
Siguencia v City of New York
April 15, 2025
Appellate Division, First Department
On April 23, 2018, plaintiff was working at the PS 333 construction project in Manhattan, as a laborer for Hilt Construction, Inc. ("Hilt"). Plaintiff was not employed by defendants at the time of his alleged accident.
Plaintiff received instructions from the general foreman, "Mohammed", his supervisor also named Mohammed, and another supervisor, "Alfredo". All three of these gentlemen were employed by Hilt and provided plaintiff with his job duties as a laborer.
On the date of the alleged incident, plaintiff was instructed by his general foreman, Mohammed, to help one of the bricklayers. The bricklayer instructed plaintiff to take the planks from the ground level and move them to the scaffold platform on the fourth level.
Defendants allege, and plaintiff originally testified that plaintiff was never given specific instructions as to the manner by which to transport the planks onto the scaffolds. Plaintiff amended his deposition testimony to allege that a Bricklayer told him to carry the planks up the stairs. Plaintiff acknowledges a pulley/hoist was available for use and would have been the more appropriate manner in which to move the planks, but alleges it was on the other side of the school, and he followed the instructions of the bricklayer.
Trial Court denied defendant’s motion for summary judgment on Plaintiff’s Labor Law §240(1) claim.
Labor Law § 240(1) (EDA)
The Appellate Division unanimously affirmed the motion court finding that the Supreme Court properly denied defendants' motion for summary judgment because defendants failed to establish that plaintiff was recalcitrant or the sole proximate cause of the accident for failing to use an available hoist or pulley. Even if hoists and pulleys were available on site, and plaintiff was aware of them, defendants did not submit any evidence establishing that plaintiff was instructed to use them. Instead, plaintiff's testimony conflicted as to whether his foreman or a bricklayer, whom his foreman instructed him to assist, told him to bring the plank up a scaffold staircase, which was an inadequate safety device for that work. Plaintiff's testimony regarding the instructions from his foreman and the bricklayer was not inadmissible hearsay because it was not offered for the truth of the matter asserted, but only to show that the statements were made.
PRACTICE POINT: This raises Sole Proximate Cause’s cousin, Recalcitrant Worker. Like Sole proximate cause, it is not enough to just have the appropriate safety equipment available, Plaintiff have been instructed to use it to successfully argue the recalcitrant worker defense.
Moore v Skanska USA Bldg., Inc.
April 17, 2025
Appellate Division, First Department
Plaintiff was caused to fall when the ladder upon which he was standing slipped out from under him. Defendants opposed his motion for summary judgment by submitting affidavits from Nelson's managers, who denied plaintiff's testimony that he was directed by one of them to fix the damper on an air conditioning unit on a rush basis.
The Trial Court denied plaintiff's motion for summary judgment on the Labor Law § 240(1) claim.
Labor Law § 240(1) (EDA)
The Appellate Division unanimously affirmed the motion court finding that the Supreme Court properly denied Plaintiff’s motion for summary judgment. Plaintiff established his entitlement to summary judgment. Plaintiff testified that he was caused to fall when the ladder upon which he was standing slipped out from under him. In opposition, defendants raised triable issues of fact regarding plaintiff's version of events. Specifically, defendants raised issues of fact by submitting affidavits from Nelson's managers, who denied plaintiff's testimony that he was directed by one of them to fix the damper on an air conditioning unit on a rush basis. The managers also asserted that it was not physically possible for the accident to have occurred as described by plaintiff. Such conflicting accounts present issues of credibility that were for a jury to resolve.
PRACTICE POINT: The Court’s ruling demonstrates the importance of the scope of work, which goes to the “person so employed” element of the statute. Further, demonstrating through competent, admissible evidence that Plaintiff’s version is impossible can raise an issue of fact, even if there were no other witnesses to the incident.
LaGrippo v 95th & Third LLC
April 22, 2025
Appellate Division, First Department
Plaintiff sustained biceps and shoulder injuries while installing a heavy marble slab on a bathroom wall during a construction project. To install the marble slab, plaintiff and his coworker were required to lift the slab onto two 15-inch-high inverted buckets set up on opposite ends of the slab, then stand on the buckets and attach two suction cups to the slab to lift it to the height of the bathroom ceiling. Plaintiff’s injury occurred as he was standing in an awkward position, trying to maintain his balance, because the "buckets were wobbling." Plaintiff’s foreman had requested a baker scaffold but none was provided, although the foreman and a coworker averred a sturdy wooden bench could have been used to perform the job.
The Trial Court granted defendants’ motion for summary judgment dismissing the Labor Law §240(1) claim and denied plaintiff’s motion for summary judgment on liability on that claim.
Labor Law § 240(1) (EDA)
The Appellate Division unanimously reversed the Supreme Court finding that Defendants failed to establish prima facie entitlement to summary judgment, as the record presented an issue of fact as to whether plaintiff was injured while trying to avoid falling from the bucket while lifting the marble slab, and whether the injury could have been prevented if defendants had provided an adequate protective device to enable him to accomplish his work at a height. The Court rejected defendants' argument that the 15-inch-tall bucket was not a "physically significant" elevation differential. The Court has found that an inverted bucket is an inadequate safety device to raise a worker to the height required to perform the work and presents a risk.
Defendants did not raise an issue of fact as to whether plaintiff was a recalcitrant worker as there was no evidence that he was expected to use a wooden bench instead of an inverted bucket, that anyone instructed him to use a bench, or that a bench was available.
PRACTICE POINT: Another case reminding us that it is impossible for a plaintiff’s negligence to be the sole proximate cause of an accident where, as here, it is shown that a violation of 240(1) was a concurrent cause of the accident. In this case, there was no evidence that an adequate safety device was even available to Plaintiff, let alone that he was instructed to use it.
D'Angelo v Legacy Yards Tenant LLC
April 24, 2025
Appellate Division, First Department
Plaintiff was ascending a steel ship's ladder when he slipped on an unknown grimy substance on the second rung from the top of the ladder, began to fall, and struck his head on a Kindorf rack while falling.
The Trial Court granted plaintiff's motion for summary judgment on the Labor Law § 240(1) claim and denied defendants ERY Tenant LLC (ERY) and Tutor-Perini Building Corp. (Tutor-Perini)’s motion for summary judgment dismissing the complaint.
Labor Law § 240(1) (EDA)
The Appellate Division found that the Supreme Court properly granted plaintiffs summary judgment on the Labor Law § 240 (1) claim as against ERY, the property owner, and Tutor-Perini, the general contractor, and that defendants failed to establish that the claim should have been dismissed as against Hudson. Plaintiffs met their initial burden through plaintiff D'Angelo's testimony on the facts above. Defendants' argument that plaintiff merely struck his head as he was ascending the ladder, and not while falling after he slipped, was both belied by plaintiff's deposition testimony and unsupported by the record. Defendants' additional argument that plaintiff's version of events is contradicted by two accident reports was not persuasive, as those reports did not contradict plaintiff's testimony but merely do not mention plaintiff falling.
PRACTICE POINT: This decision brings to mind Lt. Daniel Caffee’s famous line, “It doesn't matter what I believe. It only matters what I can prove!” Here Defendants had a great theory, they just could not prove it. Further, an absence of a supporting statement is not a contradiction. Just because one version of the story does not mention a fact in Plaintiff’s version of the incident, it is not a contradiction that leads to a question of fact to defeat summary judgment.
 Labor Law § 241(6) (TPW)
The First Department modified the underlying decision as it related to the Labor Law § 241 (6) claim against ERY, Tutor-Perini, and Hudson. First, Industrial Code (12 NYCRR) § 23-1.7 (d) did not apply because the ladder from which plaintiff fell "was not 'a floor, passageway, walkway, scaffold, platform or other elevated working surface'". Further 12 NYCRR 23-1.7 (e) (1) and (2) did not apply as there was no evidence that Thomas "tripped over any materials, debris or equipment". Last, 12 NYCRR 23-1.21 (b) (3) (iv) is limited to structural defects in ladders and does not apply to the slippery substance on the ladder in this case.
Labor Law § 200 and Common-Law Negligence (EDA)
The Appellate Division found that Defendants established their prima facie entitlement to summary judgment dismissing the Labor Law § 200 and common-law negligence claims as against ERY, Tutor-Perini, and Hudson. It was undisputed that plaintiff was instructed to do his work on the day of his accident by his own company's supervisor, and that plaintiff did not receive instructions or directions from anyone other than his own company. Thus, defendants established that they did not actually exercise supervisory control over the injury-producing work, which was caused by the equipment plaintiff used to perform the work, namely, the ladder allegedly containing a slippery and grimy substance, and plaintiffs failed to raise an issue of fact.
Santana v Port Auth. of N.Y. & N.J.
April 24, 2025
Appellate Division, First Department
Plaintiff was injured when he slipped and fell off the platform of a scissor lift he was operating on the 67th floor of a building under construction. The scissor lift had become wet from rain that had blown in through openings on the side of the building which were intended for an eventual window installation. When Plaintiff attempted to descend the lift's stairs, he moved his left foot down to place it on a step and his right foot slipped off the platform, causing him to fall.
The Trial Court granted plaintiff's motion for summary judgment on Labor Law §240(1) and 241(6), and denied defendants’ motion for summary judgment on those claims.
Labor Law § 240(1) (EDA)
The Appellate Division unanimously affirmed the motion court finding that the Plaintiff's testimony established prima facie that his work exposed him to an elevation-related risk against which defendants failed to provide him with proper protection. Plaintiff was not required to show that the scissor lift was defective. In opposition, defendants failed to raise a triable issue of fact.
PRACTICE POINT: A plaintiff is not required to demonstrate that a device is defective to be entitled to summary judgment. Even if plaintiff misused the stairs or was negligent in using the wet stairs, this constitutes at most comparative negligence, which is not a defense under Labor Law § 240(1). The platform and stairs were not adequately guarded to provide safe use of the scissor lift.
Narvaez v Petrillo Contr., Inc.
April 2, 2025
Appellate Division, Second Department
On February 27, 2013, the plaintiff, an employee of the third-party defendant, Core Contracting of NY, LLC (hereinafter Core), allegedly was injured while working on a construction site when a hoisted cement barrier struck his wrist.
The plaintiff commenced this action to recover damages against the defendant, Petrillo Contracting, Inc., the general contractor for the project, alleging, inter alia, that the defendant violated Labor Law § 240(1). The defendant interposed an answer asserting various affirmative defenses, including that the plaintiff's claims against it were barred by the exclusivity provisions of the Workers' Compensation Law.
The defendant commenced a third-party action against Core, a subcontractor for the project. Thereafter, the plaintiff moved for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1). The defendant cross-moved for summary judgment dismissing the complaint, contending that it was the plaintiff's special employer, thereby excluding it from liability for injuries sustained by the plaintiff under the Workers' Compensation Law.
The Trial Court denied the plaintiff's motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) and granted the defendant's cross-motion for summary judgment dismissing the complaint.
Labor Law § 240(1) (EDA)
The Appellate Division unanimously affirmed the Supreme Court’s denial of Plaintiff’s motion, but reversed the lower court’s dismissal of the complaint against defendant. Plaintiff made a prima facie showing that the defendant violated Labor Law § 240(1) by failing to provide the plaintiff with an adequate safety device. The plaintiff opined that the clamp used to secure the barrier failed while the barrier was being hoisted. However, viewing the evidence in the light most favorable to the defendant as the nonmovant, the transcript of the plaintiff's deposition testimony, submitted by the defendant in opposition to the plaintiff's motion, raised a triable issue of fact. His testimony was inconsistent and ambiguous as to whether he actually observed the cement barrier detach from the clamp prior to his injury and whether he knew what caused the barrier to strike his wrist.
The Appellate Division found that the Supreme Court should have denied the defendant's cross-motion for summary judgment dismissing the complaint. The defendant failed to establish, prima facie, that the plaintiff was its special employee at the time of the accident because it did not submit sufficient evidence to establish that it controlled and directed the manner, details, and ultimate result of the plaintiff's work.
PRACTICE POINT: A special employee is “one who is transferred for a limited time of whatever duration to the service of another,” and limited liability inures to the benefit of both the general and special employer. Although no one factor is determinative, a “significant” and “weighty feature” in deciding whether a special employment relationship exists is “who controls and directs the manner, details and ultimate result of the employee's work”—in other words, who determines “all essential, locational and commonly recognizable components of the [employee's] work relationship”. Principal factors in determining the existence of a special employment relationship, including control, direction, and supervision, payment of wages and furnishing of equipment, hiring and discharging, among others. Thus, courts have always looked to the underlying facts of the parties' relationship, and the same considerations govern a section 11 claim to immunity in other contexts, regardless of title. Fung v. Japan Airlines Co., 9 N.Y.3d 351, 359, 880 N.E.2d 845, 850–51 (2007)
Castillo v 37-25 12th St., LLC
April 16, 2025
Appellate Division, Second Department
On October 13, 2018, the plaintiff allegedly was injured while performing construction work within the scope of his employment at premises owned by the defendant 37-25 12th Street, LLC (hereinafter 37-25). The plaintiff commenced this action against 37-25, among others, asserting causes of action alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6), identifying October 12, 2018, as the date of the plaintiff's accident. Before answering the complaint, 37-25 moved pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it.
In an order entered January 28, 2019, the Supreme Court denied the motion. In January 2023, the plaintiff moved pursuant to CPLR 3025(b) for leave to amend the complaint to correct the date of the plaintiff's accident from October 12, 2018, to October 13, 2018, and 37-25 cross-moved for leave to renew its prior motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it.
The Trial Court granted the plaintiff's motion for leave to amend the complaint and denied the cross-motion of the defendant 37-25 12th Street, LLC, for leave to renew its prior motion.
Labor Law § 240(1) (EDA)
The Appellate Division unanimously affirmed the Supreme Court finding that 37-25 failed to demonstrate any prejudice or surprise or that the plaintiff's proposed amendment was palpably insufficient or patently devoid of merit. 37-25 also failed to establish any new facts that would change the prior determination of its prior motion. Whether the plaintiff's alleged accident occurred on October 12, 2018, or on October 13, 2018, was irrelevant to the issue of whether the plaintiff failed to state causes of action alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6)
PRACTICE POINT: CPLR 3025(b) provides, “A party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just ...”. The Court found that the one-day discrepancy did not result in unfair surprise to the defendants.
Cianciulli v Urban Found./Engg., LLC
April 16, 2025
Appellate Division, Second Department
In May 2014, Gramercy Group, Inc. signed a subcontract with 33 Bond GC, LLC to handle demolition and abatement work on a construction project in Brooklyn. 33 Bond GC was the general contractor. The property was owned by 33 Bond Street, LLC and managed by T.F. Cornerstone, Inc. The subcontract included an agreement for Gramercy to indemnify these parties under certain conditions.
Separately, 33 Bond GC also hired Urban Foundation/Engineering, LLC and Urban Foundation Company, Inc. to perform excavation and foundation work.
In April 2015, a dispute arose between Gramercy and 33 Bond GC over whether Gramercy had finished its work. To resolve it, both sides agreed to meet at the site. On April 15, 2015, Joseph Cianciulli, a project executive for Gramercy, arrived for the meeting, walked through the disputed area, and was allegedly hit by an excavator operated by an Urban employee.
In December 2015, Cianciulli and his wife filed a lawsuit claiming violations of New York Labor Law §§ 200 and 241(6), along with common-law negligence. They sued the Urban contractors, the Bond-related parties, and others involved with the project.
The sued parties then brought a third-party claim against Gramercy, seeking contractual indemnification.
The Trial Court granted those branches of the motion of the defendants third-party plaintiffs seeking summary judgment dismissing the causes of action alleging violations of Labor Law §§ 200 and 241(6) insofar as asserted against the defendants third-party plaintiffs Urban Foundation/Engineering, LLC, and Urban Foundation Company, Inc., and the causes of action alleging a violation of Labor Law § 200 and common-law negligence insofar as asserted against the defendant third-party plaintiff 33 Bond GC, LLC.
Labor Law § 241(6) (TPW)
The Second Department reversed the decision of the Supreme Court noting that it erred in granting that branch of the defendants' motion for summary judgment dismissing the Labor Law § 241(6) cause of action insofar as asserted against the Urban defendants. Defendants failed to demonstrate, prima facie, that the Urban defendants did not have the authority to control the activity bringing about the injured plaintiff's injuries. The defendants also failed to allege or submit any evidence establishing that the Urban defendants complied with 12 NYCRR 23-9.4(h)(4) or 23-9.5(c), the specific Industrial Code provisions the plaintiffs alleged were violated. Accordingly, the court should have denied that branch of the defendants' motion regardless of the sufficiency of the opposition papers.
Labor Law § 200 and Common-Law Negligence (EDA)
The Appellate Division found that The Supreme Court erred in granting the defendants' motion for summary judgment dismissing the Labor Law § 200 cause of action against the Urban defendants. The defendants failed to eliminate all triable issues of fact as to whether the Urban defendants supervised or controlled the injury-producing work.
It also found that the Supreme Court erred in granting the defendants' motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims against Bond GC. The defendants submitted the deposition testimony that certain Bond GC employees worked closely with the site-safety manager and retained the authority to "direct[ ] and instruct[ ]" anyone on the work site who was performing their work unsafely. He also testified that Bond GC's superintendent "heads all things that happen in the field or on site." The defendants thus failed to eliminate all triable issues of fact as to whether Bond GC had the authority to supervise and control the injury-producing work.
Lupo v Caruso
April 16, 2025
Appellate Division, Second Department
On November 23, 2020, the plaintiff Michael Lupo (hereinafter the injured plaintiff) allegedly was injured when, during the course of certain renovation work at the defendant's single-family home, he fell from a ladder that he allegedly borrowed from the defendant. The injured plaintiff, and his wife suing derivatively, commenced this action, alleging, among other things, a violation of Labor Law § 200 and common-law negligence.
The Trial Court granted those branches of the defendant's motion which were for summary judgment dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence.
Labor Law § 200 and Common-Law Negligence (EDA)
The Appellate Division affirmed the Supreme Court finding that the defendant established, prima facie, that she did not create or have actual or constructive notice of the allegedly dangerous condition of the ladder. In opposition, the plaintiffs failed to raise a triable issue of fact.
Villalta v Tonka Realty On 5th, LLC
April 16, 2025
Appellate Division, Second Department
The plaintiff commenced this action to recover damages for personal injuries he allegedly sustained in connection with an accident that occurred while working on a demolition project at premises owned by the defendant Tonka Realty On 5th, LLC. At the time of the accident, the plaintiff was instructed to use a rubber-footed, metal ladder situated on plywood flooring to go from the first floor to the second floor of the worksite. As the plaintiff attempted to descend the ladder, upon finishing his work on the second floor, he fell from the ladder and sustained injuries.
The Trial Court denied plaintiff’s motion for summary judgment on the causes of action alleging violations of Labor Law §§ 240(1) and 241(6).
Labor Law § 240(1) (EDA)
The Appellate Division affirmed the Supreme Court. According to the plaintiff, he descended the ladder by putting his right foot on a rung of the ladder and, as he moved his left foot to the ladder, the bottom of the ladder "slipped back," which caused him to fall. According to the superintendent, as the plaintiff was bringing his left foot down to the second rung of the ladder, the plaintiff's left foot "missed the run[g] completely" and "went through the ladder," which caused the plaintiff to fall and take the ladder with him. The superintendent did not see the ladder move prior to the plaintiff's misstep. Where "credible evidence reveals differing versions of the accident," one under which a defendant would be liable and another under which it would not, questions of fact exist making summary judgment inappropriate.
PRACTICE POINT: When there are two different eyewitness accounts, there will be a question of fact as to which account to believe.
Labor Law § 241(6) (TPW)
The Second Department affirmed the decision of the Supreme Court. Specifically, the Labor Law § 241(6) cause of action was predicated on 12 NYCRR 23-1.21(b)(4)(i), which is sufficiently specific and requires, in part, that "[a]ny portable ladder used as a regular means of access between floors or other levels in any building . . . shall be nailed or otherwise securely fastened in place." However, the plaintiff's submissions failed to eliminate triable issues of fact as to whether 12 NYCRR 23-1.21(b)(4)(i) was violated or whether such violation was a proximate cause of his injuries. Accordingly, the Supreme Court properly denied the plaintiff's motion for summary judgment on the issue of liability on the Labor Law § 241(6) cause of action, regardless of the sufficiency of the defendants' opposition papers.
Zokir v Teller Owner, LLC
April 16, 2025
Appellate Division, Second Department
In 2020, the defendant Exotic Design & Wire, LLC, doing business as Empire State Contractors, was performing a renovation project at premises owned by the defendant Teller Owner, LLC. The plaintiff was employed by the third-party defendant Look Better NYC, Inc., and was responsible for various tasks on the project, including installing sheetrock, taping, and puttying. On February 22, 2020, while working on the project, the plaintiff allegedly fell from a 10-foot A-frame ladder and suffered injuries. The plaintiff was the sole witness to the fall
The Trial Court denied the branch of the plaintiff’s motion seeking summary judgment on the cause of action alleging a violation of Labor Law §240(1).
Labor Law § 240(1) (EDA)
The Appellate Division unanimously affirmed the Supreme Court finding that the plaintiff failed to demonstrate his prima facie entitlement to summary judgment on the Labor Law § 240(1). His deposition testimony, which included inconsistencies regarding certain repairs or modifications that he made to the ladder prior to the accident, places his own credibility in issue and presents triable issues of fact regarding how the accident occurred without regard to the sufficiency of any responding papers from the defendant.
PRACTICE POINT: Plaintiff’s diffing versions of the incident or relevant facts leading to it can create his own issue of fact precluding him from making his prima facie case and obtaining summary judgment.
Bittrolff v City of New York
April 23, 2025
Appellate Division, Second Department
While Plaintiff was walking through a room, he slipped upon and became tangled in a portion of a plastic tarp that was covering a pool table that extended past the table onto the floor, causing him to fall.
The Trial Court denied defendants’ motion for summary judgment under Labor Law §241(6) predicated upon violations of 12 NYCRR 23-1.7(d) and (e)(1) and (2).
Labor Law § 241(6) (TPW)
The Second Department modified the order of the Supreme Court. The defendants moved, among other things, for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6) predicated upon violations of 12 NYCRR 23-1.7(d) and (e)(1) and (2). It was held that the Supreme Court properly denied that branch of the defendants' motion predicated upon a violation of 12 NYCRR 23-1.7(d). Plaintiff's alleged injuries occurred in an area of a worksite in which construction, excavation, or demolition work was being performed and the accident occurred on a "floor" within the meaning of 12 NYCRR 23-1.7(d). Furthermore, the defendants' submissions failed to eliminate triable issues of fact as to whether the plastic tarp was a foreign substance or whether the tarp was integral to the work being performed. In addition, the Supreme Court properly denied summary judgment predicated upon a violation of 12 NYCRR 23-1.7(e)(2). The defendants failed to establish, prima facie, that the plaintiff's fall was not caused by a tripping hazard within the meaning of 12 NYCRR 23-1.7(e) or that the plastic tarp was integral to and consistent with the work being performed within the meaning of 12 NYCRR 23-1.7(e)(2).
However, the defendants established, prima facie, that 12 NYCRR 23-1.7(e)(1), which requires owners and general contractors, among other things, to keep all passageways free of obstructions that could cause tripping, is inapplicable, because the site where the plaintiff allegedly fell was not a passageway.
Buchanan v De Orio
April 23, 2025
Appellate Division, Second Department
Plaintiff was injured while performing the removal and reinstallation of the gutters on a home when he fell approximately 20 feet from one of the ladders onto the ground.
The Trial Court granted defendant’s motion for summary judgment under Labor Law §240(1).
Labor Law § 240(1) (EDA)
The Appellate Division affirmed the Supreme Court. The defendants established, prima facie, that they did not direct or control the work and were subject to the homeowners exemption to Labor Law § 240(1). In opposition, the plaintiff failed to raise a triable issue of fact. The Appellate Division held that, contrary to the plaintiff's contention, the defendants did not "control the use of ladders" while the plaintiff was sealing the gutters by refusing to install scaffolding on the earlier related, but finished, project.
PRACTICE POINT: Under the homeowner’s exemption, owners of one and two-family dwellings who contract for but do not direct or control the work are exempt from Labor Law §§ 240(1) and 241(6).
Labor Law § 200 and Common-Law Negligence (EDA)
The Appellate Division affirmed the Supreme Court on this count as well, finding, again the defendants established, prima facie, that they did not exercise supervision or control over the performance of the work. In opposition, the plaintiff failed to raise a triable issue of fact.
Castellon v 38 E. 85th St., Inc.
April 23, 2025
Appellate Division, Second Department
Plaintiff was injured on a work site while moving an air compressor and sandblasting equipment when the discharge hose disconnected from the sandblaster, causing air and sand to strike him in the face.
The Trial Court denied plaintiff’s motion for summary judgment under Labor Law §241(6) based upon violations of 12 NYCRR 23-1.5(c)(3) and 23-1.8(a).
Labor Law § 241(6) (TPW)
The Second Department reversed the decision of the Supreme Court indicating it should have granted plaintiff's motion for summary judgment based upon violation of Labor Law § 241(6) as predicated on violations of 12 NYCRR 23-1.5(c)(3) and 23-1.8(a). Plaintiff demonstrated, prima facie, that the defendants violated Labor Law § 241(6) by failing to provide adequate eye protection equipment and to ensure that the plaintiff used safety equipment while working at the job site in accordance with 12 NYCRR 23-1.5(c)(3) and 23-1.8(a), and that those violations were a proximate cause of the accident. In support of his motion, plaintiff submitted, inter alia, a transcript of his deposition testimony. The plaintiff testified that only a broken full body mask was available for him to use at the work site at the time of the accident, with no other protective eyewear available. Moreover, the plaintiff submitted an affidavit from his expert, Herbert Heller, Jr., who opined, among other things, that the defendants' failure to provide adequate eye protection equipment to the plaintiff was a proximate cause of the plaintiff's injuries. In opposition, the defendants failed to raise a triable issue of fact.
Lopez v Classic Day Care Corp.
April 23, 2025
Appellate Division, Second Department
Plaintiff was injured while working on a construction project located at premises owned by the defendant Jevgenija Lobica (hereinafter the defendant).
The Trial Court denied plaintiff’s motion for summary judgment under Labor Law §240(1).
Labor Law § 240(1) (EDA)
The Appellate Division affirmed the Supreme Court finding that the plaintiff established, prima facie, through his submission of the deed to the premises, that the premises was a three-unit building and therefore the homeowners exemption was not available to the defendant. Contrary to the determination of the Supreme Court, the defendant failed to raise a triable issue of fact regarding its contention that the premises, which consisted of two residential units and a commercial unit used as a daycare center, was a one- or two-family dwelling that would be exempt from liability under Labor Law § 240.
The plaintiff further established, prima facie, that the work he performed was an alteration protected by Labor Law § 240(1). However, the defendant raised triable issues of fact as to whether the work was actually a decorative modification and therefore not protected by Labor Law § 240(1).
PRACTICE POINT: Under the homeowner’s exemption, owners of one and two-family dwellings who contract for but do not direct or control the work are exempt from Labor Law §§ 240(1) and 241(6). This building had two residential units but also had a commercial use.
Also, decoration is not an enumerated activity (erection, demolition, repairing, altering, painting, cleaning, or pointing of a building)
Sisalima v Thorne Constr., Inc.
April 23, 2025
Appellate Division, Second Department
On January 4, 2019, the plaintiff allegedly was injured when he fell from the roof of a building while checking to make sure a tarp was properly placed and a gust of wind raised the tarp, which "threw" him from the roof. The plaintiff's company, JWS Construction and Remodeling Corp., had been hired by the defendant Limonejo's Framing Corp. (hereinafter Limoneio) to perform work on the building as part of an extension and remodeling project.
The Trial Court denied plaintiff’s motion for summary judgment under Labor Law §240(1) against Limoneio and denied Limoneio’s cross-motion for summary judgment based on its second and seventh affirmative defenses.
Labor Law § 240(1) (EDA)
The Appellate Division unanimously affirmed the Supreme Court finding that, viewing the evidence in the light most favorable to the plaintiff, the defendant failed to eliminate triable issues of fact as to whether adequate safety devices were readily available to the plaintiff. Moreover, the defendant failed to demonstrate that the plaintiff was specifically instructed to use ropes while working on the roof and disregarded those instructions (. Thus, the defendant failed to establish, prima facie, that the plaintiff was the sole proximate cause of the accident or was a recalcitrant worker. Accordingly, the Appellate Division found that the Supreme Court properly denied the defendant's cross-motion for summary judgment on its second and seventh affirmative defenses, without regard to the sufficiency of the opposition papers
PRACTICE POINT: Our old friends Sole Proximate Cause and Recalcitrant Worker appear again. To establish the elements for either one, a defendant must show that adequate safety devices were readily available. If they fail to make even that showing, they will fail. If they can’t even raise an issue of fact on that issue, they may lose summary judgment to Plaintiff and also fail on their motion, as in this case.
Delcid-Funez v Seasons at E. Meadow Home Owners Assn.
April 30, 2025
Appellate Division, Second Department
Plaintiff fell from the roof of a condominium unit where he had been sent by his employer in response to a complaint by the unit owner of a snow-related ceiling leak. While shoveling snow off of the subject roof, the plaintiff slipped and slid off the roof, causing him to fall approximately 30 feet to the ground.
The Trial Court denied plaintiff’s motion for summary judgment under Labor Law §240(1) against defendants Seasons at East Meadow Home Owners Association, Inc., and Einsidler Management, Inc. and denied defendants cross-motions for summary judgment under Labor Law 240(1).
Labor Law § 240(1) (EDA)
The Appellate Division unanimously affirmed the Supreme Court finding that, the evidence submitted by the defendants in support of their motion and by the plaintiff in support of his motion failed to eliminate triable issues of fact as to whether the plaintiff was engaged in an enumerated activity within the meaning of Labor Law § 240(1) and whether the plaintiff's actions were the sole proximate cause of his injuries.
PRACTICE POINT: This may be a case to watch. As noted above, the enumerated activities are erection, demolition, repairing, altering, painting, cleaning, or pointing of a building. Whether rooftop snow removal fits into any of these categories, cleaning in particular, will be interesting to see.
Freas v John W. Danforth Co.
March 14, 2025
Appellate Division, Fourth Department
Plaintiff slipped and fell at a construction site on September 2, 2016. Defendant-third-party plaintiff, John W. Danforth Company (Danforth), was the general contractor on the construction project and hired Rochester Davis-Fetch Corp. (Davis-Fetch) as a subcontractor third-party defendant who was also plaintiff's employer. Danforth commenced a third-party action against Davis-Fetch, stating causes of action for contractual indemnification and failure to procure insurance.
Danforth moved for partial summary judgment against Davis-Fetch, seeking an order of contractual indemnification. Davis-Fetch cross-moved for summary judgment dismissing the third-party complaint. The Trial Court granted Danforth’s motion and denied the cross motion.
Indemnity Issues in Labor Law (AMC)
The general contractor, Danforth, commenced a third-party action against plaintiff’s employer Davis-Fetch as a result of plaintiff’s slip and fall accident. The indemnification provision was not executed until after Plaintiff’s accident. According to the Appellate Division, the Trial Court improperly granted Danforth’s motion for contractual indemnification but properly denied Davis-Fetch's cross-motion.
In modifying the Trial Court’s order, the Appellate Division held that for an indemnification agreement to be applied retroactively, it must be established that (1) the agreement was made as of a date prior to the accident and (2) the parties intended the agreement to apply as of that prior date. Here, the subcontract was made as of a date prior to the accident, but there is a triable issue of fact whether the parties intended the indemnification provision of the subcontract to apply retroactively. Thus, neither party was entitled to summary judgment.
New York Industrial Code Regulations (EDA)
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