Rodriguez v Caton21 LLC

Supreme Court, Bronx County

Decided on December 15, 2025

Index No. 28357/2017E

Ashlee Crawford, J.

In this action to recover damages for personal injury arising out of an alleged construction accident, defendants Caton21 LLC (Caton) and LWA NY LLC (LWA) move pursuant to CPLR 3212 for summary judgment dismissing plaintiff's complaint. Plaintiff opposes, except as to dismissal of his Labor Law 240 (1) claim.

BACKGROUND

On March 1, 2017, plaintiff injured his eye while using a nail gun at a construction site located at 62 East 21st Street, Brooklyn, New York. Caton owns the premises and hired LWA as general contractor to construct a new building on the site. LWA subcontracted the installation of decorative exterior paneling to plaintiff's non-party employer, Shoot Framers, Inc.

On the day of the accident, plaintiff was using a nail gun to install panels on an internal beam. While doing so, he testified that a piece of metal struck him in the left eye (Pl. EBT Tr. at 192 [NYSCEF Doc. 104]). At the time, he was not wearing safety goggles (id. at 192-193). He testified that he had purchased safety goggles while working for Shoot Framers, but that they were damaged prior to the accident (id. at 187, 189, 192-194). No one at Shoot Frames or defendants instructed him to wear safety goggles while working (Pl. EBT Tr. at 68, 87-88, 111 [NYSCEF Doc. 103]), although one of Caton's members, Abraham Waldman, testified that safety goggles were required at the premises if the task called for them (A. Waldman EBT Tr. at 54 [NYSCEF Doc. 108]). Jacob Waldman, the project manager for Caton, testified that Caton did not provide Shoot Framers' workers with safety goggles (J. Waldman EBT Tr. at 41 [NYSCEF Doc. 109]).

Plaintiff commenced this action against Caton and LWA, asserting claims under Labor [*2]Law §§ 200, 240 (1), and 241 (6), and for common law negligence. Defendants now move for summary judgment dismissing the complaint. In opposition to the motion, plaintiff conceded that his Labor Law § 240 (1) should be dismissed. Accordingly, that part of defendants' motion to dismiss plaintiff's Labor Law § 240 (1) claim is granted.

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. Labor Law § 241 (6)

Labor Law 241(6) imposes a non-delegable 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]). To establish a claim under Labor Law 241(6), plaintiff must show that defendant violated an Industrial Code regulation that sets forth a specific, positive command, and is not simply a recitation of common-law safety principles (Toussaint v Port Authority of New York and New Jersey, 38 NY3d 89, 93-94 [2022]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 503 [1993]). Plaintiff must also establish that such violation was the proximate cause of the accident (Gonzalez v Stern's Dept. Stores, 211 AD2d 414, 415 [1st Dept 1995]).

Plaintiff only contests the dismissal of Industrial Code 12 NYCRR § 23-1.8 (a)("Eye protection"). All other predicates not raised in plaintiff's legal arguments are dismissed as abandoned (Burgos v Premier Props. Inc., 145 AD3d 506, 508 [1st Dept 2016]; 87 Chambers, LLC v 77 Reade, LLC, 122 AD3d 540, 542 [1st Dept 2014]).

Industrial Code 12 NYCRR § 23-1.8 (a) provides that "[a]pproved eye protection equipment suitable for the hazard involved shall be provided for and shall be used by all persons while employed in welding, burning or cutting operations or in chipping, cutting or grinding any material from which particles may fly, or while engaged in any other operation which may endanger the eyes." Contrary to defendants' argument, this provision is sufficiently specific to support a claim under section 241 (6) (Langer v MTA Capital Constr. Co., 184 AD3d 401, 402 [1st Dept 2020]).

Defendants argue that plaintiff was not doing work covered by this provision at the time of the accident. However, other than certain specifically enumerated tasks, the provision also covers anyone "engaged in any other operation which may endanger the eyes" (12 NYCRR § 23-1.8 [a]), and defendants do not meet their prima facie burden for dismissal thereunder.

Finally, defendants argue that plaintiff caused his own injuries when he decided not to wear safety goggles. Abraham Waldman testified that safety goggles were required on site if a worker was doing a job that needed them, but Jacob Waldman testified that defendants did not provide plaintiff or any other workers with safety goggles. Plaintiff testified that he had a pair of [*3]safety goggles that were damaged prior to the accident and he never replaced them, and that no one at the premises had instructed him to use safety goggles while using the nail gun. Defendants point to certain inconsistencies in plaintiff's testimony, but at best those inconsistencies only implicate plaintiff's credibility, which the Court may not resolve on summary judgment (see Art Capital Group, LLC v Rose, 149 AD3d 447, 448 [1st Dept 2017]). Upon this record, defendants' have not met their burden for summary judgment dismissing plaintiff's Labor Law § 241 (6) claim, as predicated on a violation of Industrial Code 12 NYCRR § 23-1.8 (a), and that part of defendants' motion is therefore denied.

II. Labor Law § 200 and Common Law Negligence

"In order to prevail in any action premised upon [common law] negligence, it must be established that defendant owed plaintiff a duty, that defendant, by act or omission, breached such duty, that such breach was the proximate cause of plaintiff's injuries, and that plaintiff sustained damages" (Salvador v New York Botanical Garden, 71 AD3d 422, 423 [1st Dept 2010]). "Section 200 of the Labor Law is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work" (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]). "Claims for personal injury under the statute and the common law fall into two broad categories: those arising from an alleged defect or dangerous condition existing on the premises and those arising from the manner in which the work was performed" (Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139, 143-44 [1st Dept 2012]). "Where an existing defect or dangerous condition caused the injury, liability attaches if the owner or general contractor created the condition or had actual or constructive notice of it" (id. at 144). "Where the injury was caused by the manner and means of the work, including the equipment used, the owner or general contractor is liable if it actually exercised control over the injury-producing work" (id.).

The record does not reflect any dangerous condition inherent in the premises. Plaintiff's injury arose out of the means and methods of his work, and defendants may only be found liable on this claim if they supervised and controlled plaintiff's work. Plaintiff testified that he received instructions only from his supervisor at Shoot Framers, Joel, and his co-worker, Felix (Pl. Tr. at 88-89). He also testified that the "supervisor of the entire building" did not give him any instructions (id. at 87-89). While Abraham Waldman testified that Jacob Waldman had general supervisory authority over all the work on the premises (A. Waldman Tr. at 22, 25, 35; see also J. Waldman Tr. at 50, 54-56), such general supervisory authority is insufficient to establish liability (see Torres-Quito v 1711 LLC, 227 AD3d 113, 118-119 [1st Dept 2024]).

Accordingly, that part of defendants' motion to dismiss plaintiff's Labor Law § 200 and common-law negligence claims is granted.

Accordingly, it is hereby

ORDERED that the motion by defendants Caton21 LLC and LWA NY LLC for summary judgment dismissing the complaint is GRANTED IN PART to the extent that plaintiff's Labor Law §§ 200, 240 (1), and common-law negligence claims are DISMISSED; and that part of the motion directed to plaintiff's Labor Law § 241 (6) claim as predicated on a violation of Industrial Code 12 NYCRR § 23-1.8 (a) is DENIED, but all other Industrial Code predicates are DISMISSED as abandoned; 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 12/15/2025

ASHLEE CRAWFORD, J.S.C.