Sanchez v 1435 Tenants Corp.

Supreme Court, Bronx County

Decided on December 19, 2025

Index No. 32730/2020E

Ashlee Crawford, J.

Plaintiff Edgar Cabrera Sanchez moves pursuant to CPLR 3212 for summary judgment on his Labor Law §§ 240 (1), 241 (6), 200, and common law negligence claims, and for dismissal of defendants' affirmative defense regarding plaintiff's comparative negligence (mot. seq. 002). Defendant/third-party plaintiff Standard Waterproofing Corp. (Standard Waterproofing) and defendants Gumley-Haft LLC (Gumley-Haft) and 1435 Tenants Corp. (1435 Tenants) separately oppose plaintiff's motion as directed to his claims.

Defendant/third-party plaintiff Standard Waterproofing moves for summary judgment dismissing plaintiff's claims, as well as any counterclaims or cross-claims asserted against it (mot. seq. 003). Plaintiff opposes dismissal of his claims, and defendants 1435 Tenants and Gumley-Haft oppose dismissal of their contractual indemnification cross-claims.

Defendant Gumley-Haft moves for summary judgment dismissing plaintiff's claims; and, alternatively, for summary judgment on its contractual indemnification cross-claim asserted against Standard Waterproofing (mot. seq. 004). Plaintiff opposes dismissal of his claims and Standard Waterproofing.

Defendant 1435 Tenants moves for summary judgment dismissing plaintiff's claims and any cross-claims asserted against it,^FN1 as well as for summary judgment on its cross-claim for contractual indemnification asserted against Standard Waterproofing (mot. seq. 005). Plaintiff opposes dismissal of his claims, Standard Waterproofing opposes that part to the motion directed to it.

BACKGROUND

On September 17, 2020, plaintiff was injured while working as a helper at a construction project located at 1435 Lexington Avenue, New York County. It is undisputed that 1435 Tenants owned the building and Gumley-Haft served as managing agent. Pursuant to a construction contract, 1435 Tenants, by Gumley-Haft, retained Standard Waterproofing to perform façade repairs at the building. Standard Waterproofing in turn hired plaintiff's employer, third-party [*2]defendant Gurtaj Construction Corp. (Gurtaj), as the subcontractor to supply all the labor, tools, and materials, and to perform the actual work.

Plaintiff began work for Gurtaj a day before the accident occurred (Pl. Tr. at 28:9-18, 31:6-11 [NYSCEF Doc. 82]). He received his instructions from his Gurtaj supervisor, Salvador (id. at 32:15-33:2). On the morning of the accident, Salvador instructed plaintiff to dismantle a scaffold and transport the pieces from the roof of the building (id. at 45:2-46:4). After lunch, plaintiff was tasked with transporting pieces of the disassembled scaffold in the freight elevator (id. at 51:6-25, 53:2-5). The accident occurred in an outdoor alley on the ground floor where plaintiff was dropping off pieces of the scaffold (id. at 53:10-25, 57:14-18). While plaintiff was dropping off a piece of scaffold in the designated area, he heard "a little noise," felt an impact on his upper back, and was caused to take a few steps forward without falling to the ground (id. at 60:24-61:11, 62:13-24, 63:19-64:3). After the impact, plaintiff turned around and observed his coworker, who stated he had "tripped on something" and fallen into plaintiff while holding a piece of metal scaffolding (id. at 64:4-65:6). Plaintiff was unsure what the coworker tripped over, but observed that a lot of construction material or garbage in the area would make it difficult to "walk freely" (id. at 65:7-22, 67:9-15). On the morning of the accident, plaintiff complained to Salvador about the construction debris in the area where his accident later occurred; Salvador instructed plaintiff to continue working (id. at 68:18-70:20).

1435 Tenants' building superintendent, Francisco Quinones, testified that he made sure the building remained clean during the façade renovation project, but was never instructed to oversee the renovation work (1435 Tenants Tr. at 30:7-25 [NYSCEF Doc. 85]).

Gumley-Haft's principal, Daniel Wollman, was responsible for overseeing the building's day-to-day operations on behalf of Gumley-Haft, as managing agent (Gumley-Haft Tr. at 7-9 [NYSCEF Doc. 86]). Wollman testified that it was the contractor's responsibility to clean the ground in the service area where the accident occurred, but acknowledged that the building's superintendent and porters were also responsible for sweeping and cleaning the area (id. at 42:12-43:1-6).

Frank Ricciardelli was Standard Waterproofing's vice president of field operations at around the time of plaintiff's accident (Standard Waterproofing Tr. at 10:3-5 [NYSCEF Doc. 87]). Standard supplied scaffolding equipment to Gurtaj, but Gurtaj provided the physical labor for set-up and clean-up (Standard Waterproofing Tr. at 21:19-22:17, 29:6-18, 38, 51:6-11, 66:16-19 [NYSCEF Doc. 87]). Standard did not instruct Gurtaj on cleaning up debris at the project (id. at 35:13-19), and had no supervisory responsibilities over Gurtaj's work (id. at 44:22-45:8). Standard would sometimes send a truck to the project to pick up trash up (Standard Waterproofing Tr. at 33:4-34:22). Standard Waterproofing was not made aware of any complaints concerning garbage pick-up prior to plaintiff's accident (id. at 50:3-11).

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 [*3]existence of a triable issue of material fact (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]).

I. Labor Law § 240 (1)

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 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]).

The court finds that Labor Law § 240 (1) is inapplicable in this case, as plaintiff's injuries were not "the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]; see Carrera v Westchester Triangle Hous. Dev. Fund Corp., 116 AD3d 585, 585 [1st Dept 2014]). Moreover, the only evidence that plaintiff's coworker tripped is the coworker's alleged statement to plaintiff, and plaintiff cannot prove that construction debris caused the coworker's fall without relying on inadmissible hearsay or speculation (see Tompa v 767 Fifth Partners, LLC, 113 AD3d 466, 468 [1st Dept 2014], lv denied 24 NY3d 903 [2014]). Accordingly, plaintiff's Labor Law § 240 (1) claim is dismissed.

II. 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]).

Here, plaintiff moves for summary judgment with respect to Industrial Codes 12 NYCRR [*4]§§ 23-1.7(e)(1) (Tripping and other hazards; Passageways) and 23-1.7(e)(2) (Tripping and other hazards; Working areas), and addresses § 23-1.7(d) (Slipping hazards) in opposition to defendants' motions. All other predicates not raised in plaintiff's 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 § 23-1.7(e) is sufficiently specific to support a Labor Law § 241 (6) claim (see Smith v Extell W. 45th LLC, 230 AD3d 1044, 1045 [1st Dept 2024]; Singh v Young Manor, Inc., 23 AD3d 249, 249 [1st Dept 2005]). However, 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 space 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]; c.f. Zyskowski v Chelsea-Warren Corp., 238 AD3d 498 [1st Dept 2025]). Moreover, plaintiff cannot establish a violation of either § 23-1.7(e)(1) or § 23-1.7(e)(2) without relying on speculative or inadmissible hearsay evidence, given that plaintiff never testified that his coworker tripped as a result of dirt, debris, or sharp projections (see Cioppa v ESRT 112 W. 34th St., L.P., 232 AD3d 411, 412 [1st Dept 2024]["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'"]). Thus, the section 23-1.7(e)(1) and (e)(2) predicates are therefore dismissed.

As to Industrial Code 12 NYCRR § 23-1.7(d), which covers slipping hazards, plaintiff specifically testified that his coworker "tripped on something," not that he slipped on an alleged hazard. Therefore, plaintiff's Labor Law § 241 (6) claim is dismissed in its entirety.

III. Labor Law § 200 and/or Common-Law Negligence

Plaintiff and defendants move for summary judgment on plaintiff's Labor Law § 200 and common law negligence claims. "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.).

While the record demonstrates that 1435 Tenants, Gumley-Haft, and Standard Waterproofing neither supervised nor controlled plaintiff's work (see Siegel v Delta Airlines, Inc., 227 AD3d 516, 517 [1st Dept 2024][dismissing Labor Law 200 and common law negligence claims]), an owner, general contractor, or an agent of either may still be held liable if it either created the hazardous condition or failed to remedy it despite possessing actual or constructive notice thereof (Coon v WFP Tower B Co. L.P., 220 AD3d 407, 408 [1st Dept [*5]2023]). Here, since plaintiff is unable to identify precisely what caused his coworker to trip, he cannot establish prime facie that defendants created or possessed actual or constructive notice of the alleged hazardous condition. At the same time, 1435 Tenants, Gumley-Haft, and Standard Waterproofing submitted no evidence of when the work site was last inspected before plaintiff's accident (see id.; Kolakowski v 10839 Assoc., 185 AD3d 427, 427-428 [1st Dept 2020]; Pereira v New Sch., 148 AD3d 410, 412-413 [1st Dept 2017]).

Accordingly, summary judgment is denied to all parties on plaintiff's Labor Law § 200 and common law negligence claims as asserted against 1435 Tenants, Gumley-Haft, and Standard Waterproofing.

IV. Contractual Indemnification

Defendants 1435 Tenants and Gumley-Haft move for summary judgment on their contractual indemnification claims against Standard Waterproofing. Standard Waterproofing moves for summary judgment seeking dismissal of any and all counter and/or cross-claims against it. As 1435 Tenants and Gumley-Haft only raise arguments regarding their cross-claims for contractual indemnification, the remainder of their cross-claims are dismissed as abandoned.

"A party is entitled to full contractual indemnification provided that the 'intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances'" (Drzewinski v Atlantic Scaffold & Ladder Co., Inc., 70 NY2d 774, 777 [1987] [citation omitted]). "The right to contractual indemnification depends upon the specific language of the contract" (DiBrino v Rockefeller Ctr. N., Inc., 230 AD3d 127, 136 [1st Dept 2024] [citation omitted]). "Indemnification provisions are strictly construed and a promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding facts and circumstances" (Madison Hospitality Mgt. LLC v Acacia Network Hous., Inc., 230 AD3d 1063 [1st Dept 2024] [internal quotation marks and citation omitted]).

Here, the two indemnification provisions at issue are broadly worded to permit indemnification against liability arising out of negligent acts or omissions of Standard Waterproofing or Gurtaj, as its subcontractor (see 1435 Tenants & Gumley Haft — Standard Waterproofing Contract at § 9.15 and Art. 22.1 [NYSCEF Doc. 116]; Asian v Flintlock Constr. Servs., LLC, 225 AD3d 462, 463 [1st Dept 2024]; Pitang v Beacon Broadway Co., LLC, 231 AD3d 414, 415-416 [1st Dept 2024]). The subject indemnification provisions also do not run afoul of General Obligations Law § 5-322.1 as it sufficiently contains the appropriate savings clause "to the fullest extent permitted by law" (Brooks v Judlau Contr., Inc., 11 NY3d 204, 210 [2008]; see Guzman v 170 W. End Ave. Assoc., 115 AD3d 462, 464 [1st Dept 2014]; see also Dutton v Pankow Bldrs., 296 AD2d 321, 321-322 [1st Dept 2002], lv denied 99 NY2d 511 [2003]).

However, conditional judgment on the issue of contractual indemnity is premature where triable issues of fact exist as to the indemnitee's negligence, as found here (Pawlicki v 200 Park, L.P., 199 AD3d 578, 579 [1st Dept 2021]; Cackett v Gladden Properties, LLC, 183 AD3d 419, 422 [1st Dept 2020]). Therefore, summary judgment on 1435 Tenants and Gumley-Haft's contractual indemnification claims against Standard Waterproofing is denied.

V. Affirmative Defenses

Plaintiff has not met his heavy burden for dismissal of defendants' affirmative defense of plaintiff's comparative negligence (Alpha Capital Anstalt v. General Biotechnology Corp., 191 AD3d 515, 516 [1st Dept 2021]).

The Court has considered the additional contentions of the parties not specifically addressed herein. To the extent that relief requested by any movant was not addressed by the Court, it is hereby denied. Accordingly, it is hereby

ORDERED that plaintiff's motion for summary judgment on his Labor Law §§ 240 (1), 241 (6), 200, and common law negligence claims, and for dismissal of defendants' affirmative defense regarding plaintiff's comparative negligence, is DENIED (mot. seq. 002); and it is further

ORDERED that the motion by defendant/third-party plaintiff Standard Waterproofing Corp.'s motion for summary judgment is GRANTED IN PART to the extent that plaintiff's Labor Law §§ 240 (1) and 241 (6) claims are DISMISSED as against it, and all cross-claims except for contractual indemnification are DISMISSED as against it, and the remainder of the motion is DENIED (mot. seq. 003); and it is further

ORDERED that the motion by defendant Gumley-Haft LLC for summary judgment is GRANTED IN PART to the extent that plaintiff's Labor Law §§ 240 (1) and 241 (6) claims are DISMISSED as against it, and the remainder of the motion is DENIED (mot. seq. 004); and it is further

ORDERED that the motion by defendant 1435 Tenants Corp. for summary judgment is GRANTED IN PART to the extent that plaintiff's Labor Law §§ 240 (1) and 241 (6) claims, as well as all cross-claims, are DISMISSED as against it, and the remainder of 1435 Tenants Corp.'s motion is DENIED (mot. seq. 005); 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 12/19/2025

ASHLEE CRAWFORD, J.S.C.