Mohamed v Newbold Lot LLC

Supreme Court, Bronx County

Decided on December 10, 2025

Index No. 22835/2020E

Ashlee Crawford, J.

The following e-filed documents, listed by NYSCEF document number (Motion 002

were read on this motion to/for JUDGMENT - SUMMARY.

The following e-filed documents, listed by NYSCEF document number (Motion 003

were read on this motion to/for JUDGMENT - SUMMARY.

Upon the foregoing documents, it is

Plaintiff Mohamed Attia Mohamed moves pursuant to CPLR 3212 for summary judgment as to liability against defendant/third-party plaintiff Newbold Lot LLC ("Newbold") on his Labor Law § 240(1) claim. Newbold opposes and moves pursuant to CPLR 3212 for summary judgment dismissing plaintiff's complaint, including the claims under Labor Law §§ 200, 240(1), 241(6) and common law negligence. Plaintiff opposes only dismissal of his section 240(1) claim.

BACKGROUND

On January 22, 2020, plaintiff sustained injuries while working on a renovation project at at 2515 Newbold Avenue, Bronx, New York. The property is owned by Newbold, and is leased by plaintiff's employer, third-party defendant Celtic Scaffold Co. ("Celtic").

According to plaintiff, on the day of the accident, plaintiff was assisting his supervisor, Favien, with the renovation of a storage area, which entailed the construction of a new shelving system (Pl. Tr. at 18:11-13, 25:25-29:23 [NYSCEF Doc. 66]). Plaintiff and Favien first began by taking down all the pipes and materials from the shelves using a forklift owned by Celtic (Pl. Tr. at 29:12-30:7, 32:23-33:7). Favien instructed plaintiff to get on top of the forklift so plaintiff could reach the shelf and remove the loose materials and pipes (Pl. Tr. at 34:18-35:13, 37:12-17, 38:10-15, 48:15-18). No ladders were at the yard and plaintiff was not provided any type of rope or harness (Pl. Tr. at 30:23-31:13, 62:8-15). Plaintiff was wearing a helmet that he personally brought (Pl. Tr. at 36:3-11). While plaintiff was grabbing the loose material and pipes, approximately 20 pipes suddenly fell on plaintiff and hit him in the chest, knocking him down. (Pl. Tr. at 38:10-22, 46:23-47:12). When plaintiff tried to grab onto something to stop his fall, plaintiff's hand was caught in the front of the forklift for several seconds before he fell to the ground (Pl. Tr. at 47:13-50:18). While plaintiff's hand was stuck, several of his fingers were amputated (Pl. Tr. at 50:15-25).

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 v Ceppos, 46 NY2d 223, 231 [1978]).

I. Abandoned Claims

Plaintiff does not oppose dismissal of his claims under Labor Law §§ 200 and 241(6) and [*2]for common law negligence, which are therefore 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]).

II. 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 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]).

"Not every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240 (1)" (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001]). "[L]iability is contingent upon the existence of a hazard contemplated in section 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein" (id., citing Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]).

"In order to prevail on summary judgment in a section 240(1) 'falling object' case, the injured worker must demonstrate the existence of a hazard contemplated under that statute and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein (Fabrizi v 1095 Ave. of the Americas, LLC, 22 NY3d 658, 662 [2014][internal quotation marks and citation omitted]). "Essentially, the plaintiff must demonstrate that at the time the object fell, it either was being "hoisted or secured," or "required securing for the purposes of the undertaking" (id. [internal citations omitted]). Section 240(1) does not automatically apply simply because an object fell and injured a worker; a plaintiff must show that the object fell "because of the absence or inadequacy of a safety device of the kind enumerated in the statute" (id. [emphasis removed, citation omitted]).

"In the context of falling objects, the risk to be guarded against is the unchecked or insufficiently checked descent of the object" (Torres-Quito v 1711 LLC, 227 AD3d 113, 116 [1st Dept 2024] [citation omitted]). "It is settled law that a plaintiff establishes a prima facie entitlement to liability on a Labor Law § 240(1) 'falling object' claim where he shows that he was struck by a falling object, that such object required securing for the purposes of the undertaking, and that the lack of adequate overhead protection failed to shield against the falling of such object and therefore proximately caused plaintiff's injuries" (id.).

"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 [*3]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]; see Biaca-Neto v Boston Road II Housing Dev. Fund Corp., 34 NY3d 1166, 1167-1168 [2020]).

Plaintiff has met its prima facie burden and defendant's arguments fail to raise a triable issue of fact (see Thompson v Pizzaro, 155 AD3d 423 [1st Dept 2017]).^FN1 As the owner of the property, Newbold is a proper party under Labor Law § 240(1); and plaintiff was engaged in renovation work, which is a covered activity under the statute.

The existence of a single ambulance report stating plaintiff's hand had been crushed between two pieces of scaffolding is insufficient to overcome summary judgment in light of plaintiff's testimony that pipes fell onto him and caused him to fall from the forklift (see Pinzon v Royal Charter Properties, Inc., 211 AD3d 442, 443 [1st Dept 2022]).

Newbold's sole proximate cause argument fails as a matter of law. There is no proof that adequate safety devices were available, that plaintiff knew they were available and was expected to use them and unreasonably chose not to do so. On the contrary, plaintiff testified that his supervisor instructed him to stand on top of the forklift and directed his work at the moment of the accident.

Accordingly, it is hereby

ORDERED that the motion by plaintiff for summary judgment as to liability on his Labor Law § 240(1) is GRANTED; and it is further

ORDERED that the motion by defendant Newbold Lot LLC for summary judgment dismissing plaintiff's complaint is GRANTED IN PART as directed to plaintiff's claims under Labor Law §§ 200 and 241(6) and for common law negligence, which claims are DISMISSED without opposition; and the motion is DENIED as directed to plaintiff's Labor Law § 240(1) claim; and it is further

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

This constitutes the decision and order of the Court.

DATE 12/10/2025

Ashlee Crawford, J.S.C.