Pacheco v 91 Cent. Park W. Corp.

Supreme Court, Bronx County

Decided on December 15, 2025

Index No. 31723/2018E

Ashlee Crawford, J.

In this action to recover damages for personal injuries arising out of an alleged construction accident, plaintiff Raul Pacheco moves pursuant to CPLR 3212 for summary judgment on his Labor Law § 240 (1) claim. Defendant opposes.

BACKGROUND

On September 27, 2018, plaintiff was injured while working as a laborer at a renovation project located at 91 Central Park West, New York, New York. Defendant 91 Central Park West Corporation owned the premises. Pursuant to a construction contract, defendant retained plaintiff's non-party employer, West New York Restoration of Connecticutt, Inc. (West New York) to perform certain repair work.

Plaintiff testified that he worked at the site for at least three months before the accident occurred (Pl. Tr. at 80:3-7 [NYSCEF Doc. 129]). West New York was retained to demolish bricks and rocks, perform window sealing, and remove caulking (id. at 83:20-84:4). Plaintiff testified that West New York did not provide any safety equipment other than a helmet (id. at 69:11-13). Plaintiff supplied his own harness for the job (id. at 70:20-21). He further testified that his foreman, Gregory, did not speak Spanish and that any tasks or instructions were translated into Spanish by Spanish-speaking co-workers (id. at 79). On the date of the accident, plaintiff's foreman assigned him the task of removing bricks and demolishing a corner of a wall at the rear of the building (Pl. Tr. at 160:20-23, 163-164 [NYSCEDF Doc. 130]). The foreman instructed plaintiff to come down from a scaffold to transport a platform from the back of the building (id. at 167:18-23). The platform was made of aluminum, measured 26- to 28-feet long, [*2]and weighed about 200 pounds (id. at 175:4-11). Plaintiff transported the aluminum platform with two other co-workers; due to a narrow hallway, through which it was impossible to transport the platform, they decided to lift the platform over the wall and wood fence (id. at 181:8-182:4). Although Gregory did not instruct plaintiff to use this method, plaintiff had watched it used before on the project (id. at 189:7-190:16). Plaintiff stood on an unsecured wood two-by-four that was placed on top of a concrete wall and wood fence and was about to finish passing off the platform to another worker, when the two-by-four shifted to the left and caused him to fall about 9 feet to the ground (id. at 182:11-23, 188:22-189:6, 193:13-25, 196:11-22, 199:10-25). When plaintiff first climbed on top of the wood plank, he jumped on it to ensure it was stable to work on (Pl. Tr. at 485:2-20 [NYSCEF Doc. 131]).

In opposition, defendant submits the sworn affidavit of Manuel Sebastian Cajamarca, who was employed by West New York as a laborer (Cajamarca Aff. ¶ 1 [NYSCEF Doc. 142]). Cajamarca states that on the date of plaintiff's accident, Cajamarca was directed by the foreman, Gregory, to transport one of the remaining disassembled platforms from the rear of the building to the street (id. at ¶ 3). Cajamarca was proficient in English and fluent in Spanish, so Gregory relied on Cajamarca to interpret his directives into Spanish for the benefit of the team of workers, including plaintiff (id.). Cajamarca observed plaintiff on top of a concrete wall, placing a wood plank "across the corridor to the top of the fence" (id. at ¶ 6). Cajamarca states that he instructed plaintiff to stop what he was doing and wait for an available ladder to be brought over in order to descend from the concrete wall in a safe manner (id.).

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]).

Labor Law § 240 (1) provides in relevant part that where there is erection, demolition, repairing, or altering of a building, 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 [*3]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, 402-403 [1st Dept 2013]).

Here, plaintiff established his prima facie entitlement to judgment on his Labor Law § 240 (1) claim, and defendants fail to raise an issue of fact, including as to whether plaintiff was the sole proximate cause of his injuries or was a recalcitrant worker. There is no proof that defendant provided an adequate safety device, and any conduct on the part of plaintiff would go to comparative negligence, which is not a defense to liability under Labor Law § 240 (1) (Peralta v Hunter Roberts Construction Group, 242 AD3d 646, 647 [1st Dept 2025]; Vines v Judlau Contracting, Inc., 238 AD3d 557 [1st Dept 2025]; 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]). Moreover, an employer's instruction or directive to plaintiff to wait for a ladder to descend safely from an elevated surface "to avoid an unsafe practice is not a sufficient substitute for providing a worker with a safety device to allow him to complete his work safely" (Plaku v 1622 Van Buren LLC, 198 AD3d 431, 432 [1st Dept 2021] [internal citations omitted]). Defendant further fails to demonstrate whether the ladder would have been an appropriate safety device to provide adequate protection under these facts (Peralta, supra).

Contrary to defendant's contention, plaintiff's unsigned deposition transcripts are admissible evidence since defendant did not challenge the accuracy of the testimony as transcribed and the transcripts were certified as accurate (Martin v City of New York, 82 AD3d 653, 654 [1st Dept 2011]; White Knight Ltd. v Shea, 10 AD3d 567, 567-568 [1st Dept 2004]).

Accordingly, it is hereby

ORDERED that plaintiff's motion for summary judgment on his Labor Law § 240 (1) claim against defendant 91 Central Park West is GRANTED; 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, A.J.S.C.