Hernandez de Nerio v 2880 Exterior St, LLC

Supreme Court, Bronx County

Decided on December 11, 2025

Index No. 22793/2019E

Ashlee Crawford, J.

The following e-filed documents, listed by NYSCEF document number (Motion 002) 48-64, 79-81, 84 were read on this motion to/for JUDGMENT - SUMMARY.

The following e-filed documents, listed by NYSCEF document number (Motion 003) 65-75, 78, 82 were read on this motion to/for JUDGMENT - SUMMARY.

Upon the foregoing documents, it is

Plaintiff moves pursuant to CPLR 3212 for partial summary judgment as to liability under Labor Law § 240 (1) against defendants 2880 Exterior St, LLC ("2880 Exterior") and Storage Construction Company LLC ("Storage") (motion seq. 002). Defendants oppose.

Defendants move for summary judgment dismissing all claims and/or cross-claims asserted against them, including under Labor Law §§ 200, 240, 241 (6) and any claims under the common law (motion seq. 003). Plaintiff opposes, except as to her claims under Labor Law §§ 200, 240 (2)-(3).

Plaintiff commenced this action on March 8, 2019, asserting claims for common law [*2]negligence and violations of Labor Law §§ 200, 240 (1)-(3), and 241 (6) against defendants. 2880 Exterior asserts cross-claims against Storage for common law indemnification and contribution, contractual indemnification, and breach of contract. Storage asserts cross-claims against 2880 Exterior for common law contribution and indemnification, and contractual indemnification.

On July 26, 2018, plaintiff was injured while working at a construction project located at 2880 Exterior Street, Bronx, New York. Her work consisted of building aluminum framing to form rooms within an office (Pl. Tr. 39:6-41:12 [NYSCEF Doc. 56]). At the time of the accident, plaintiff was standing at the top of a six-foot A-frame ladder, joining the corner of a room to another room (id. at 45:24-49:19). As she did so, a large insulation box which was next to the ladder shifted into the ladder, shaking it, and causing plaintiff to lose her balance and fall (id. at 51:3-52:7, 57:12-59:22, 61:3-62:9). Defendant 2880 Exterior owned the property, defendant Storage was the general contractor, and plaintiff was employed by non-party subcontractor Absolute Construction ("Absolute").

Summary Judgment

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 and Cross-Claims

Plaintiff does not oppose defendants' motion seeking dismissal of her claims under Labor Law §§ 200, 240 (2)-(3) and for common law negligence. Further, defendants do not oppose dismissal of their respective cross-claims. Therefore, those claims and cross-claims 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 [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, 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 [*3]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]).

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

Plaintiff has met her prima facie burden as to liability under Labor Law § 240 (1). In opposition, defendants fail to raise a triable issue of fact, including as to whether plaintiff was the sole proximate cause of her injuries or was a recalcitrant worker. At most, defendants' argument and conclusory expert affidavit that plaintiff's placement of the ladder next to the box was the cause of the accident, amounts to comparative negligence, which is not a defense to a Labor Law § 240 (1) claim (see Cronin Aff. [NYSCEF Doc. 80]; Dolcimascolo v 701 7th Property Owner, LLC, 232 AD3d 538, 539 [1st Dept 2024]; Mayorquin v Carriage House Owner's Corp., 202 AD3d 541, 542 [1st Dept 2022]). Plaintiff is accordingly entitled to summary judgment as to liability on her Labor Law § 240(1) claim.

III. Labor Law § 241 (6)

Labor Law § 241(6) "imposes a nondelegable duty of reasonable care upon owners and contractors 'to provide reasonable and adequate protection and safety' to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed" (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 348 [1998]). "[T]o state a claim under [Labor Law] section 241 (6), plaintiff must allege that defendant violated an Industrial Code regulation that sets forth a specific standard of conduct and is not simply a recitation of common-law safety principles" (Toussaint v Port Auth. of NY & N.J., 38 NY3d 89, 94 [2022] [internal quotation marks and citations omitted]). Labor Law § 241 (6) requires that a plaintiff establish that a violation of a safety regulation was the proximate cause of the accident (Gonzalez v Stern's Dept. Stores, 211 AD2d 414, 415 [1st Dept 1995] [citation omitted]).

Plaintiff alleges that defendants violated the following Industrial Code provisions: 23-1.5, 23-1.7, 23-1.7(f), 23-1.15, 23-1.16, 23-1.16(a)(b), 23-1.17, 23- 1.21(b)(1), 23-1.21(b)(3)(i), 23-1.21(b)(4)(ii), 23-1.21(b)(4)(iv); 23- 1.21(e); 23- 1.16, 23-1.17, 23-5, 23-9.6, and various OSHA regulations (5/30/19 Bill of Particulars at ¶ 20, and 7/24/19 Bill of Particulars at ¶ 21 [NYSCEF Doc. 53]). However, in her motion papers, plaintiff addresses only Industrial Code (12 NYCRR) §§ 23-1.5 (c) (1), 23-1.7, 23-1.16, 23-1.17, 23-1.21, et. seq., and 23-5 to support her Labor Law § 241 (6) claim, thereby abandoning all other predicates not raised in her legal arguments (Burgos v Premier Props. Inc., 145 AD3d 506, 508 [1st Dept 2016]; 87 Chambers, [*4]LLC v 77 Reade, LLC, 122 AD3d 540, 542 [1st Dept 2014]).

Moreover, plaintiff failed to specify the relevant subdivisions or subsection of certain Industrial Code provisions in her bill of particulars (i.e., Industrial Code §§ 23-1.5, 1.7 (except 1.7 [f]), 1.16, 1.17 and 23-5). Plaintiff has therefore abandoned the Industrial Code §§ 23-1.5 and 23-5.1 predicates by failing to specify the subsections thereof (Caminiti v Extell W. 57th St. LLC, 166 AD3d 440, 441 [1st Dept 2018]; McLean v Tishman Const. Corp., 144 AD3d 534, 535 [1st Dept 2016]). Plaintiff also argues the general applicability of every subsection of Industrial Code § 23-1.21 without specifying the relevant subsection thereof (see Wolk Aff. in Opp. ¶¶ 51-52 [NYSCEF Doc. 78]). As such, plaintiff has abandoned each alleged predicate of her Labor Law § 241 (6) claim, rendering dismissal appropriate.

Accordingly, it is hereby

ORDERED that plaintiff's motion for partial summary judgment as to liability on her Labor Law § 240 (1) claim is GRANTED (motion seq. 002); and it is further

ORDERED that the motion for summary judgment by defendants 2880 Exterior St, LLC and Storage Construction Company LLC is GRANTED IN PART as directed to plaintiff's claims for common law negligence and violations of Labor Law §§ 200, 240 (2)-(3), and 241 (6), as well as to their respective cross-claims, and such claims and cross-claims are DISMISSED; and the motion is DENIED as directed to plaintiff's Labor Law § 240 (1) claim (motion seq. 003); and it is further

ORDERED that the 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 12/11/2025

ASHLEE CRAWFORD, J.S.C.