Vargas v Port Auth. of N.Y. & N.J.

Supreme Court, Bronx County

Decided on December 17, 2025

Index No. 28198/2019E

Ashlee Crawford, J.

Plaintiff Thiana Vargas moves pursuant to CPLR 3212 for partial summary judgment as to liability on her Labor Law § 241(6) claim asserted against defendants/third-party plaintiffs Port Authority of New York & New Jersey, LaGuardia Gateway Partners, LLC, Skanska USA Building Inc., Skanska USA Civil Northeast Inc., and Walsh Construction Company II and Skanska/Walsh J.V. (mot. seq. 002). Those defendants/third-party plaintiffs oppose the motion.^FN1

Defendant/third-party defendant GMA Electrical Corp. ("GMA") moves pursuant to CPLR 3212 for summary judgment dismissing the complaint and third-party complaint as against it (mot. seq. 003). Plaintiff and defendants/third-party plaintiffs separately oppose the motion.

Plaintiff's Two Accidents

Plaintiff seeks to recover for injuries she sustained in two separate accidents while working as a plumber at a construction site known as the "Head House" in Terminal B at [*2]LaGuardia Airport. On August 28, 2018, plaintiff was walking along the external perimeter of the Head House to a mechanical room to check on a leaking pipe when her right foot became entangled in a looped electrical grounding wire lying in the pathway, which tripped her and caused her to fall ("2018 accident").

Several months later, on March 18, 2019, plaintiff was exiting a hoist at the ground level of the project when she was caused to trip and fall a second time. Specifically, her right foot caught on a raised metal cleat or washer sticking up from the hoist platform, used to fasten the wire mesh to the wooden platform ("2019 accident").

At the time of both accidents, plaintiff was employed by non-party plumbing sub-contractor Liberty Mechanical Contractors Inc. ("Liberty"). Defendants/third-party plaintiffs Port Authority of New York & New Jersey ('Port Authority") and LaGuardia Gateway Partners, LLC ("LaGuardia") were the lessees, landlords, and operators of the subject premises. Defendants/third-party plaintiffs Skanska USA Building Inc. ("Skanska USA"), Skanska USA Civil Northeast Inc. ("Skanska Northeast"), and Walsh Construction Company II and Skanska/Walsh J.V. ("Walsh") were the design-builders for the construction project. Defendant/third-party defendant GMA is an electrical subcontractor for the project.

In the second amended verified complaint, plaintiff asserts causes of action for (1) common law negligence (against all defendants arising out of the 2018 accident and against all defendants except GMA arising out of the 2019 accident); (2) violation of Labor Law § 241(6); and (3) violation of Labor Law § 200 (Second Amended Verified Complaint [NYSCEF Doc. 34]). Plaintiff's claim under Labor Law § 241(6) is premised on defendants' violation of Industrial Code 12 NYCRR §§ 23-1.7(e)(1) and (e)(2) (Verified Bill of Particulars at 9 ¶ 20 [NYSCEF Doc. No. 63]). Plaintiff's claims as asserted against GMA are limited only to the 2018 accident (Verified Bill of Particulars at 3 ¶ 5 [NYSCEF Doc. No. 63]).

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)

Plaintiff moves for summary judgment as to liability on her Labor Law § 241(6) claims as asserted against Port Authority, LaGuardia Gateway, and the Skanska/Walsh defendants for both accidents. Port Authority, LaGuardia Gateway, and the Skanska/Walsh defendants oppose. GMA separately moves to dismiss plaintiff's section 241 (6) claims related to the 2018 accident as asserted against it.

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, [*3]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 establish 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]). 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 premises her Labor Law § 241(6) claim on violations of Industrial Code 12 NYCRR §§ 23-1.7(e)(1)(Tripping and other hazards — Passageways) and (e)(2)( Tripping and other hazards — Working areas)(see Verified Bill of Particulars ¶ 20 [NYSCEF Doc. 63]).

Plaintiff has not met her burden as predicated on section 23-1.7(e)(1), since "passageway" as used in that provision refers only to discrete interior passageways, unlike the outdoor spaces in each accident where plaintiff was injured (Quigley v Port Auth. of New York, 168 AD3d 65, 67 [1st Dept 2018]; see Smith v Extell W 45th LLC, 230 AD3d 1044 [1st Dept 2024] ["The elevator in which plaintiff's accident occurred cannot be considered a walkway or pathway, and therefore cannot constitute a passageway within the meaning of the regulation"]; c.f. Zyskowski v Chelsea-Warren Corp., 238 AD3d 498 [1st Dept 2025]). Therefore, the section 23-1.7(e)(1) is dismissed.

Industrial Code 12 NYCRR § 23-1.7(e)(2), 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." "This regulation is sufficiently specific to support a Labor Law § 241 (6) claim" (Smith v Extell W. 45th LLC, 230 AD3d 1044, 1045 [1st Dept 2024]). "On its face, section 23-1.7 (e) (2) does not apply to all potential tripping hazards but only to 'accumulations of dirt and debris,' 'scattered tools and materials,' and 'sharp projections'" (Cioppa v ESRT 112 W. 34th St., L.P., 232 AD3d 411, 412 [1st Dept 2024]). A "working area," for purposes of the Industrial Code, is any "'physically defined area' that workers routinely cross[] to access equipment and materials" (Castaldo v F.J. Sciame Constr. Co. Inc., 222 AD3d 579, 579 [1st Dept 2023][citation omitted]).

The areas where plaintiff tripped in both accidents constitute "working areas" under Industrial Code section 23-1.7(e)(2) (see Pereira v 504 W 34, LLC, 240 AD3d 417 [1st Dept 2025]), and defendants' reliance on the "integral to work" doctrine to argue that the wire and raised metal cleat or washer were integral parts of the construction is unpersuasive. As to the 2018 accident, while the looped wire involved in the first accident was a dangerous condition inherent to the task at hand, the risk of tripping over the wire 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] [internal quotations omitted], citing Bazdaric v Almah Partners LLC, 41 NY3d 310 [2024]; see Zyskowski v Chelsea-Warren Corp., 238 AD3d 498, 501 [1st Dept 2025]).

As for the 2019 accident, the object that caused plaintiff's fall was a "sharp projection within the meaning of section 23-1.7(e)(2), as the projection hazard was clearly defined and distinct from the surrounding floor surface" (O'Brien v Tectonic Builders Inc., 2025 NY Slip Op 06656, *1 [1st Dept Dec. 2, 2025][internal citations omitted]; Lenard v 1251 Americas Assoc., 241 AD2d 391, 393-394 [1st Dept 1997][defining 'sharp projection']) which could have been [*4]made safe without preventing the work from continuing.

The argument by Port Authority, LaGuardia Gateway, and the Skanska/Walsh defendants that plaintiff was the sole proximate cause of her accidents is also unavailing (see Demetrio v Clune Constr. Co., L.P., 176 AD3d 621, 622 [1st Dept 2019]). While there is testimony that the hoist and loading platform related to the 2019 accident was meant only for materials and generally not for individuals, there is no evidence that plaintiff was ever instructed to not walk through the working area of the 2018 accident or to not use the hoist before the 2019 accident.

However, issues of fact exist for both accidents 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 trip and fall" to support Labor Law § 241(6) liability against the owner or general contractor arising from the negligent acts of others (Cavedo v Flushing Commons Prop. Owner, LLC, 217 AD3d 561, 562 [1st Dept 2023]; accord Rizzutto v L.A. Wnger Contr. Co., 91 NY2d 343, 350 [1998][notice by general contractor not required]; Ward v Times Sq. Hotel Owner LLC, 2025 NY Slip Op 06399, *2 [1st Dept Nov. 20, 2025][same]; Gallina v MTA Capital Constr. Co., 193 AD3d 414, 415 [1st Dept 2021][same]).

Therefore, plaintiff's motion for summary judgment on her Labor Law § 241(6) claim is denied, and GMA's motion for summary judgment dismissing that claim is denied as to the Industrial Code § 23-1.7(e)(2) predicate, but is granted as to all other predicates, which are dismissed.

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.).

A subcontractor who supervises the injury-producing work may be liable for common law negligence and Labor Law 200 (see Tighe v Hennegan Const. Co., Inc., 48 AD3d 201, 202 [1st Dept 2008]; see also Armental v 401 Park Ave. S. Assoc., LLC, 182 AD3d 405, 406-407 [1st Dept 2020]).

GMA seeks dismissal of plaintiff's Labor Law § 200 claim and common law negligence claims related to the 2018 accident as asserted against it on the grounds that GMA did not exercise supervisory control over plaintiff's work and did not create the condition (i.e., the looped wire). Plaintiff and Port Authority, LaGuardia Gateway, and the Skanska/Walsh defendants separately oppose.

While GMA's foreman testified that EJ Electrical installed the looped wire that plaintiff [*5]tripped over (Modafferi Tr. at 49-50 [NYSCEF Doc. 88]), Skanska's construction superintendent affirms that GMA was hired to install the building lighting of the Head House, including running wire rings around the site (Forgione Aff. ¶¶ 5-6 [NYSCEF Doc. 108]). Plaintiff also testified that there were many electricians on the job site and she was not sure which company installed the ground wire (Pl. 10/16/20 Tr. at 110-111 [NYSCEF Doc. 64]; Pl. 5/26/22 Tr. at 7-8 [NYSCEF Doc. 65]). Since there are issues of fact concerning whether GMA created the condition, its motion to dismiss the Labor Law § 200 claim is denied (Bacova v Paramount Leasehold, L.P., 223 AD3d 428, 430 [1st Dept 2024]).

III. Contribution, Indemnification, and Breach of Contract Claims

GMA seeks dismissal of the contribution, common-law indemnification, contractual indemnification, and breach of contract claims asserted against it. Port Authority, LaGuardia Gateway, and the Skanska/Walsh defendants oppose.

As discussed, supra, there is an issue of fact concerning whether GMA created the condition, precluding summary judgment dismissing the third-party claims.

Accordingly, it is hereby

ORDERED that plaintiff's motion for partial summary judgment as to liability under Labor Law § 241 (6) is DENIED (mot. seq. 002); and it is further

ORDERED that the motion by defendant/third-party defendant GMA Electrical Corp. for summary judgment dismissing the complaint and third-party complaint is GRANTED IN PART such that that part of the motion seeking dismissal of plaintiff's Labor Law § 241(6) claim is DENIED as to the Industrial Code § 23-1.7(e)(2) predicate, but is GRANTED as to all other predicates, which are DISMISSED, and the remainder of the motion is DENIED (mot. seq. 003); 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.

HON. ASHLEE CRAWFORD, A.J.S.C.

Dated: December 17, 2025

Bronx, New York