Santos-Alcantara v Gramercy Sq. LLC

Supreme Court, Bronx County

Decided on December 16, 2025

Index No. 301692/2016E

Ashlee Crawford, J.

The following e-filed documents, listed by NYSCEF document number (Motion 006) 69-106, 108-122, 148-149 were read on this motion to/for JUDGMENT - SUMMARY

The following e-filed documents, listed by NYSCEF document number (Motion 007) 123-130, 132-147, 150-172 were read on this motion to/for JUDGMENT — SUMMARY.

Plaintiff Samuel Santos-Alcantara moves pursuant to CPLR 3212 for partial summary judgment on liability on his Labor Law § 241 (6) claim against defendants/second third-party plaintiffs Gramercy Square LLC ("Gramercy"), Pizzarotti IBC LLC ("Pizzarotti"), and CabGram Developer LLC ("CabGram") (motion seq. 007). CabGram opposes. Gramercy and Pizzarotti [*2]separately oppose and cross-move for summary judgment on their contractual indemnification claim asserted against second third-party defendant On Target Sheetmetal Corp ("On Target"), which On Target opposes.

Third-party defendant Millennium Karnes, Ltd. ("Karnes") moves pursuant to CPLR 3212 and 3211 (a) (7) for summary judgment dismissing the third-party complaint asserted against it by third-party defendant Park Plumbing & Mechanical ("Park"), as well as any cross-claims and counterclaims; and pursuant to CPLR 3042 (d), 3124, and 3126 to preclude Park from asserting any claims against Karnes at trial (motion seq. 006). CabGram, On Target, and Park oppose.

BACKGROUND

On February 8, 2016, plaintiff was injured while working as foreman for second third-party defendant On Target at a construction project located at 215-225 East 19th Street, New York, New York. At the time of the accident, plaintiff was measuring the ceiling for duct work on the thirteenth floor of the building, when he slipped on a piece of black steel pipe measuring about 3-to-4 inches (Plaintiff Tr. at 61:12-65:10 [NYSCEF Doc. 153]). Plaintiff testified that other than the black pipe, there were about 5 pieces of wood on the ground, and 8-10 other pieces of pipe on the floor that looked like debris (id. at 71:21-72:25). Plaintiff had not seen the black pipe, or other debris, prior to his accident (id. at 65:14-66:15). At the time of the accident, he was looking up to measure the ceiling at various angles (id. at 63:5-14). Plaintiff saw plumbers and carpenters on the thirteenth floor on the date of the accident (id. at 53:23-54:11).

Gramercy was the building owner. CabGram was a lessee sponsor of the condominium renovation project, which retained Pizzarotti as construction manager, which in turn sub-contracted with Park Plumbing to perform plumbing work. On Target was retained to install ducts.

Park's owner, Aaron Lebovits, testified that he hired Jeffrey Troodler, whose company is Karnes, to "run the job" and to act as "maybe [a] supervisor" (Lebovits Tr. at 88:2-23 [NYSCEF Doc. 140]). Lebovits stated that Park and Karnes entered into an oral agreement for the project (id. at 88:2-90:23). Lebovits had no written communications with Troodler; most communications went through Yaakov Friedman, who worked under Troodler (id. 90:17-91:23).^FN1

The supervisor for Park Plumbing, Yaakov Friedman, testified that Troodler was the licensed plumber on the job site (Friedman Tr. at 16:4-7, 76:16-77:3 [NYSCEF Doc. 91]). While Friedman did not know if Troodler was employed by Park, Troodler reported to Friedman (id. at 77:4-8). Friedman visited the construction site every day or every other day (Friedman Tr. at 15:14-16:3 [NYSCEF Doc. 91]). He stated that plumbing materials were brought to a floor a day or two before they would be used, and would be stored in a corner of the work area where they were intended to be installed (id. at 33:16-34:12, 87:3-88:6). Any pipes would be laid down on the floor, close to a wall, and if the floor was pitched, his guys would always put some heavy filling or a box around the pipes to prevent rolling (id. at 88:7-89:14).

Friedman further testified that Park Plumbing installed piping on the thirteenth floor where the accident occurred (id. at 57:7-13), but he could not recall whether it was working on [*3]that floor on the day of the accident (id. at 35:3-12). During the relevant period, Park Plumbing had mechanic plumbers and plumbing helpers working at the project, all of whom reported directly to Friedman (id. at 62:12-15, 83:15-84:5). Generally, the helpers would cut the pipes (id.).

Timeliness of Plaintiff's Motion and the Related Cross-Motion

Karnes argues that plaintiff's motion for summary judgment is untimely (Wellman Aff. in Opp. ¶ 7 [NYSCEF Doc. 148]). Further, On Target argues that Pizzarotti and Gramercy's cross-motion, filed more than seven months after plaintiff's filing of the note of issue, is untimely and lacking in good cause for the delay (Eckert Affirm. in Opp to Cross-Motion ¶¶ 18-24 [NYSCEF Doc. 167]; see Note of Issue [NYSCEF Doc. 33], Notice of Cross-Motion [NYSCEF Doc. 132]).

The note of Issue was filed on March 8, 2024. By order dated April 22, 2024, the Court granted the order to show cause by counsel for Park to withdraw as counsel (seq. 005) and stayed this matter for 60 days from the date of service of the order on Park, which occurred on April 24, 2024 (NYSCEF Docs. 64, 66-68). Accordingly, motions for summary judgment were due by August 27, 2024 (CPLR 2103 [b] [2] [five days shall be added to the prescribed period where service is made by mailing]). Plaintiff's motion for summary judgment (seq. 007) was timely filed on August 23, 2024; Pizzarotti and Gramercy's cross-motion was filed on October 29, 2024.

In the absence of Court order or rule to the contrary, motions for summary judgment must be made no later than 120 days after the filing of the note of issue, except with leave of court on good cause shown (Brill v City of New York, 2 NY3d 648, 652 [2004]; CPLR 3212[a]). An otherwise untimely cross-motion for summary judgment may be considered by the Court, even in the absence of good cause, where a timely motion for summary judgment was made seeking relief "nearly identical" to that sought by the cross-motion (Filannino v Triborough Bridge and Tunnel Auth., 34 AD3d 280, 281 [1st Dept 2006], app dismissed 9 NY3d 862 [2007][citations omitted]). A Court's consideration of a cross-motion, or search of the record, under such circumstances is limited to those causes of action or issues that are the subject of the timely motion (id.). Given the Court's order tolling the time to move, plaintiff's motion for summary judgment is timely. However, the cross-motion for summary judgment, which opposes plaintiff's motion and seeks summary judgment on the second third-party contractual indemnification claim against On Target, is untimely. While the Court will consider the timely opposition by Pizzarotti and Gramercy to plaintiff's motion (NYSCEF Doc. 131), because no party has timely moved on the second third-party claim for contractual indemnification asserted against On Target, the Court may not consider such relief and the cross-motion is therefore denied as untimely.

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. 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 moves for partial summary judgment as to liability on his Labor Law § 241 (6) claim against Gramercy, Pizzarotti, and CabGram, premised on a violation of Industrial Code § 23-1.7 (e) (2). Industrial Code (12 NYCRR) § 23-1.7 (e) (2)("Tripping and other hazards — Working areas") provides that "[t]he parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed." The subsection is sufficiently specific to sustain a claim under Labor Law § 241 (6) (Licata v AB Green Gansevoort, LLC, 158 AD3d 487, 489 [1st Dept 2018]).

In opposition, CabGram argues that plaintiff was a recalcitrant worker; CabGram, as sponsor of the condominium renovation project, was not an owner or agent under the Labor Law; the pipes were integral to the work; and plaintiff's testimony about the accident is inconsistent (Smith Memo of Law in Opp [seq. 007] [NYSCEF Doc. 152]). Gramercy and Pizzarotti argue that the accident was not caused by their negligence, and that the pipe was integral to the work (Drexler Aff. in Supp. [seq. 007] [NYSCEF Doc. 133]).

The Court finds that CabGram is a proper Labor Law defendant, since it admitted it was a lessee of the premises (Answers at p. 22 ¶ 9 [NYSCEF Doc. 74), and contracted for plumbing work with Park Plumbing (NYSCEF Doc. 126)(see Otero v 635 Owner LLC, 210 AD3d 435, 437 [1st Dept 2022][a lessee may be held liable as an "owner" under Labor Law § 240 (1)]).

Defendants' "integral to the work" defense is unavailing. The risk of slipping/tripping on the black steel pipe was an "avoidable dangerous condition" for which defendants could have utilized preventative measures that would not have made it impossible to complete the work (Maldonado v Hines 1045 Ave. of the Ams. Invs. LLC, 227 AD3d 502, 503 [1st Dept 2024], citing Bazdaric v. Almah Partners LLC, 41 NY3d 310, 320-321 [2024]).

Similarly unavailing is defendants' sole proximate cause or recalcitrant worker defense. Plaintiff testified that he needed to look up and walk to measure different angles to measure for duct work. Defendants cannot show plaintiff looked at the ceiling while walking unreasonably or "for no good reason" (see Biaca-Neto v Boston Road II Housing Dev. Fund Corp., 34 NY3d 1166, 1167-1168 [2020]; Valente v Lend Lease (US) Const. LMB, Inc., 29 NY3d 1104, 1105 [2017]; Nacewicz v Roman Catholic Church of the Holy Cross, 105 AD3d 402, 402-403 [1st Dept 2013]).

However, factual issues remain as to whether someone in the chain of responsible employees on the construction project had actual or constructive notice of the alleged hazardous condition that caused plaintiff's accident (Cavedo v Flushing Commons Prop. Owner, LLC, 217 AD3d 561, 562 [1st Dept 2023]). Therefore, the respective motions for summary judgment on [*4]the Labor Law § 241 (6) claim are denied.

II. Third-Party Complaint Against Karnes

Karnes moves to dismiss Park's third-party claims for contractual and common law indemnification, contribution, and breach of contract for failure to procure insurance, as well as On Target's cross-claims for contractual and common law indemnification and contribution.

Contractual Claims

Dismissal of the contractual claims against Karnes is appropriate. In the first instance, there are issues of fact concerning Karnes' involvement in the project. Testimony by Park's principal that Karnes's owner, Jeffrey Troodler, was "running the job" and that there was an oral agreement with Karnes, conflicts with testimony by Park's supervisor that Troodler was essentially an employee, retained by Park, and did not exercise supervisory authority over the workers. However, even if there was an oral agreement between Park and Karnes, there is no evidence that a term of any agreement was to procure insurance or to indemnify another party. Therefore, Karnes' motion for summary judgment dismissing the third-party claims and cross-claims for breach of contract and contractual indemnification is granted.

Common Law Claims

"To be entitled to common-law indemnification, a party must show (1) that it has been held vicariously liable without proof of any negligence or actual supervision on its part; and (2) that the proposed indemnitor was either negligent or exercised actual supervision or control over the injury-producing work" (Naughton v City of New York, 94 AD3d 1, 10 [1st Dept 2012]).

To establish a claim for contribution, defendants/third-party plaintiffs must show that the third-party defendant contributed to plaintiff's injuries by breaching a duty to plaintiff or defendants/third-party plaintiffs (Jehle v Adams Hotel Assocs., 264 AD2d 354, 355 [1st Dept 1999]). "[I]f the injured party's underlying complaint fails to state a cause of action, there is no basis for a contribution claim" (id.).

Due to issues of fact concerning Karnes' involvement in the project, its motion for summary judgment dismissing the third-party claims and cross-claims for common law contribution and indemnification is denied.

The Court has considered the parties' remaining arguments and any requested relief not expressly discussed herein is denied.

Accordingly, it is hereby

ORDERED that plaintiff's motion for partial summary judgment as to liability on his Labor Law § 241 (6) claim is DENIED due to issues of fact; and the cross-motion by defendants/second third-party plaintiffs Pizzarotti IBC LLC and Gramercy Square LLC is DENIED as untimely (motion seq. 007); and it is further

ORDERED that the motion by third-party defendant Millennium Karnes, Ltd. for summary judgment dismissing the third-party complaint and any cross-claims and counterclaims is GRANTED IN PART only as directed to any such claims for contractual indemnification and breach of contract for failure to procure insurance, which claims are DISMISSED, and the motion is DENIED in all other respects; 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 12/16/2025

ASHLEE CRAWFORD, AJSC