Lopez v Dougherty

Supreme Court, Bronx County

Decided on December 9, 2025

Index No. 300543/2017E

Ashlee Crawford, J.

Plaintiff Erick Sanchez Lopez moves pursuant to CPLR § 3212 for partial summary judgment as to liability on his Labor Law § 240(1) claim asserted against defendants/third-party plaintiffs/second third-party plaintiffs John Dougherty Trustee of the Kent Avenue Realty Trust ("Trustee") and Sage Builders Corp. ("Sage" and, together, "defendants"). Defendants oppose plaintiff's motion and cross-move pursuant to CPLR § 3212 for partial summary judgment dismissing plaintiff's Labor Law § 200 and common law negligence claims, and for summary judgment on their third-party claims for contractual indemnification and breach of contract for failure to procure insurance asserted against third-party defendant Daleys Construction Corp. ("Daleys"). Plaintiff opposes consideration of the cross-motion, on the ground it is untimely, and only opposes dismissal of his Labor Law 240(1) claim on the merits.

On February 13, 2017, plaintiff was working at a construction site, on a pipe scaffold provided by his employer, when the scaffold collapsed, causing plaintiff to fall to the floor and sustain injuries. The scaffold did not have any railings and was not secured to the wall or to the ground in any way. Defendant Trustee owned the building where the accident occurred, and defendant Sage was the general contractor who sub-contracted plaintiff's employer, third-party defendant Daleys, to perform masonry work.

DISCUSSION

A party seeking summary judgment "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once this showing is made, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of triable issues of fact (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat summary judgment (id.). Summary judgment is a drastic remedy and must be denied if there is any doubt as to the existence of a triable issue of material fact (Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [1978]).

I. Labor Law § 240 (1)

Labor Law § 240(1) provides in relevant part that where a building is being erected, demolished, repaired, or altered, contractors and owners "shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed." "The statute imposes [*2]upon owners, contractors and their agents a nondelegable duty that renders them liable regardless of whether they supervise or control the work" (Barreto v Metropolitan Transp. Auth., 25 NY3d 426, 433 [2015]). "[W]here an accident is caused by a violation of the statute, the plaintiff's own negligence does not furnish a defense; however, where a plaintiff's own actions are the sole proximate cause of the accident, there can be no liability" (id. [internal quotation marks omitted]). "Thus, in order to recover under section 240(1), the plaintiff must establish that the statute was violated and that such violation was a proximate cause of his injury" (id.). Labor Law § 240(1) is to be liberally construed so as to accomplish its legislative purpose of protecting workers (Stoneham v Joseph Barsuk, Inc., 41 NY3d 217, 221 [2023]; Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]).

Plaintiff has met his prima facie burden under Labor Law § 240(1) (Garcia v 122-130 E. 23rd St. LLC, 220 AD3d 463, 463—64 [1st Dept 2023]["testimony establishing that a safety device collapsed is sufficient for a prima facie showing on liability"]; Thompson v St. Charles Condominiums, 303 AD2d 152, 154 [1st Dept 2003], lv dismissed 100 NY2d 556 [2003]; Perez v Chase Manhattan Bank, N.A., 262 AD2d 160, 161 [1st Dept 1999]). It is undisputed that defendants, as owner and general contractor, are subject to the nondelegable duties imposed by the statute. Further, plaintiff proved that the scaffold afforded insufficient protection from falls while he was engaged in a covered activity, and that his injuries were proximately caused by a violation of Labor Law § 240(1)(see Jones v 414 Equities LLC, 57 AD3d 65, 67 [1st Dept 2008]).

In opposition, defendants argue that plaintiff was the sole proximate cause of his accident, because he erected the scaffold and used it for several hours before it collapsed. They also maintain that the scaffold was not defective based on inspections by a Department of Buildings Investigator and Sage's owner; that a question of fact exists as to why or how the scaffold collapsed; and that plaintiff's testimony provides different explanations. On December 16, 2020, plaintiff testified that the scaffold's platform became unhooked from the body of the scaffold, causing it to collapse, but testified on March 18, 2021, that a cross brace was removed from the scaffold, causing the accident.

"To raise a triable issue of fact as to whether plaintiff was the sole proximate cause of an accident, the defendant must produce evidence that adequate safety devices were available, that the plaintiff knew they were available and was expected to use them, and that the plaintiff unreasonably chose not to do so, causing the injury sustained" (Nacewicz v Roman Catholic Church of the Holy Cross, 105 AD3d 402, 402-03 [1st Dept 2013]). Defendants fail to raise an issue of fact as to whether plaintiff was the sole proximate cause of his accident, because they do not present evidence that the appropriate equipment was available to plaintiff and that he chose not to use it (Lemache v Elk Manhasset LLC, 222 AD3d 591, 592 [1st Dept 2023]). Whether the scaffold was in good working order is legally unavailing on summary judgment, because plaintiff established that the scaffold did not offer adequate protection from falls, and he was not required to prove its defectiveness in order to satisfy his prima facie burden (Kind v 1177 Ave. of the Americas Acquisitions, LLC, 168 AD3d 408, 409 [1st Dept 2019]; see also Rodriguez v BSREP UA Heritage LLC, 181 AD3d 537, 538 [1st Dept 2020]). Defendants' assertion that plaintiff caused his own injuries because he erected the scaffold would, at most, establish comparative negligence, which is not a defense to liability under Labor Law § 240(1)(see Ladd v [*3]Thor 680 Madison Ave. LLC, 212 AD3d 107, 114 [1st Dept 2022]; Concepcion v 333 Seventh LLC, 162 AD3d 493, 494 [1st Dept 2018]; Fletcher v Brookfield Properties, 145 AD3d at 434).

The differing explanations of why the scaffold collapsed are legally unavailing on summary judgment, as defendants are liable under either theory (Singh v City of New York, 191 AD3d 547, 548 [1st Dept 2021]; Cashbamba v 1056 Bedford LLC, 168 AD3d 638, 639 [1st Dept 2019]).

Accordingly, plaintiff's motion on is Labor Law 240 (1) claim is granted, and defendants' cross-motion seeking dismissal of that claim is denied.

II. Labor Law § 200 & Common Law Negligence

Defendants Trustee and Sage cross-move for summary judgment dismissing plaintiff's Labor Law § 200 and common law negligence claims. The Court rejects plaintiff's timeliness argument and, because plaintiff does not oppose dismissal of those claims on their merits, they are dismissed as abandoned (see Gamez v Sandy Clarkson LLC, 221 AD3d 453, 454-455 [1st Dept 2023]; Martin Assoc., Inc. v Illinois Natl. Ins. Co., 188 AD3d 572, 573 [1st Dept 2020]; Saidin v Negron, 136 AD3d 458, 459 [1st Dept 2016], lv dismissed 28 NY3d 1069 [2016], cert denied 583 US 842 [2017]).

III. Contractual Indemnification and Breach of Contract

Defendants Trustee and Sage move unopposed for summary judgment on their third-party claims for contractual indemnification and breach of contract for failure to procure insurance asserted against third-party defendant Daleys Construction Corp. With respect to the contractual indemnification claims, defendants submitted the Subcontractor Agreement, the Hold Harmless Agreement, and the Subcontractor Agreement Rider between Sage Builders and Daleys (NYSCEF Doc. 38 at 167-189). The Hold Harmless Agreement provides that Daleys will indemnify and hold harmless Sage Builders for "any claims, damages, or expenses because of bodily injury, personal injury, . . . or other related expenses arising out of or in any way related to work" performed by Daleys for Sage Builders (id. at 181). Pursuant to the Rider to the Subcontractor Agreement, Daleys also agreed to indemnify and hold harmless Sage Builders, excluding liability created by the sole and exclusive negligence of Sage Builders (id. at 185). Defendants have made out a prima facie showing that the indemnification agreement was valid and enforceable at the time of the accident, that plaintiff's injuries arose out of Daley's work, and, as determined above, that plaintiff's injuries were not caused by defendants' negligence (Lemache v Elk Manhasset LLC, 222 AD3d 591, 593 [1st Dept 2023]). There being no opposition, defendants are entitled to summary judgment on their contractual indemnification claims.

Defendants also seek contractual defense, including attorneys' fees. This part of the motion is granted to the extent that Daleys is liable to Sage for attorneys' fees in defending against plaintiff in this action, and a hearing will be held to determine the amount of attorneys' fees and costs owed by Daleys at the time of trial (Holt v Welding Servs., Inc., 264 AD2d 562, 564 [1st Dept 1999]; see DiPerna v Am. Broad. Companies, Inc., 200 AD2d 267 [1st Dept 1994]).

Lastly, defendants seek summary judgment on their claim for breach of contract due to Daley's failure to procure insurance. "A party moving for summary judgment on its claim for failure to procure insurance meets its prima facie burden by establishing that a contract provision requiring the procurement of insurance was not complied with" (Benedetto v Hyatt Corp., 203 AD3d 505, 506 [1st Dept 2022]). "The burden then shifts to the opposing party, who may raise an issue of fact by tendering the procured insurance policy in opposition to the motion" (id.). "[A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" (Quadrant Structured Prods. Co., Ltd. v Vertin, 23 NY3d 549, 559-560 [2014]). Daleys agreed to procure a Commercial General Liability policy, to add defendants Trustee and Sage as additional insureds, and to reimburse Sage $25,000 in the event Daley does not procure the agreed upon insurance (NYSCEF Doc. 38, at 181, 185-86, 474). $25,000 is the deductible Sage must pay its insurance carrier with respect to any loss arising out of work performed by Daleys (id. at 181).

Whether a provision in an agreement is an enforceable liquidation of damages or an unenforceable penalty is a question of law, giving due consideration to the nature of the contract and the circumstances (172 Van Duzer Realty Corp. v Globe Alumni Student Assistance Ass'n, Inc., 24 NY3d 528, 536 [2014]). Here, the amount stipulated is tied to Sage's deductible, and is not grossly disproportionate to the probable loss, and is therefore not a penalty (see Sang Min Kim v Bedouet, 238 AD3d 513, 514 [1st Dept 2025]; Fora Fin., Advance, LLC v 4 Pillar Consulting, LLC, 236 AD3d 491, 491-492 [1st Dept 2025]).

Sage and Trustee having met their prima facie burden, and there being no opposition, the motion for summary judgment on the breach of contract claim against Daleys is granted.

Accordingly, it is hereby

ORDERED that plaintiff's motion for partial summary judgment as to liability on his Labor Law § 240 (1) claim, asserted against defendants Dougherty Trustee of the Kent Avenue Realty Trust and Sage Builders Corp., is GRANTED; and it is further

ORDERED that the cross-motion by defendants Dougherty Trustee of the Kent Avenue Realty Trust and Sage Builders Corp. is decided as follows:

• That part of the cross-motion for summary judgment dismissing plaintiff's claims under Labor Law § 200 and for common law negligence is GRANTED, and those claims are DISMISSED; and

• That part of the cross-motion for summary judgment on the contractual indemnification claims asserted against third-party defendant Daleys Construction Corp., is GRANTED without opposition and third-party defendant Daleys Construction Corp. is obligated to indemnify defendants Dougherty Trustee of the Kent Avenue Realty Trust and Sage Builders Corp. to the extent that they are liable to plaintiff, and a hearing will be held at the time of trial to determine the amount of attorneys' fees and costs owed by third-party defendant Daleys Construction Corp., if any; and

• That part of the cross-motion for summary judgment on the claim for breach of contract claim for Daleys' failure to procure insurance is GRANTED; and it is further

ORDERED that defendants Dougherty Trustee of the Kent Avenue Realty Trust and Sage Builders Corp. shall serve a copy of this order with notice of entry on the Clerk of the Court, who shall enter judgment for defendants Dougherty Trustee of the Kent Avenue Realty Trust and Sage Builders Corp. and against third-party defendant Daleys Construction Corp. in the sum of $25,000.00, together with post-judgment interest at the statutory rate, and costs and disbursements upon presentation of proper papers therefor; and it is further

ORDERED that the parties shall appear for a pre-trial conference to be calendared by the Clerk of the Court.

ENTER:

HON. ASHLEE CRAWFORD, A.J.S.C.

Dated: December 9, 2025

Bronx, New York