Hernandez v Helzen Assoc. LLC

Supreme Court, Bronx County

Decided on December 22, 2025

Index No. 23117/2019E

Ashlee Crawford, J.

Third-party plaintiff/second third-party plaintiff Republic Scaffold & Hoist Corp. ("Republic") moves pursuant to CPLR 3212 for summary judgment (1) dismissing plaintiff's complaint, including claims under Labor Law §§ 200 and 241 (6), and for common law negligence; (2) dismissing the first third-party claims for contractual indemnification, breach of [*2]contract, and common law indemnification and contribution asserted against Republic by defendants/third-party plaintiffs/third third-party plaintiffs Helzen Associates LLC ("Helzen"), Hauser & Wirth US Property LLC ("Hauser"), and Westerman Construction Company, Inc. ("Westerman"); and (3) in Republic's favor on its second third-party claims for contractual indemnification, breach of contract, and common law indemnification and contribution asserted against second third-party defendant/third third-party defendant Cuetes Corp. ("Cuetes").

Plaintiff claims to generally oppose "dismissal of [his] complaint or any of its causes of action" (see Notice of Cross-Motion [NYSCEF Doc. 114]) but, in his brief, only addresses dismissal of his Labor Law § 241 (6) claim. Plaintiff cross-moves for leave to serve an amended bill of particulars to assert violations of Industrial Code §§ 23-1.7 (b) (1) (i), (e) (1), and (e) (2), as predicates for his Labor Law § 241 (6) claim.

BACKGROUND

On February 28, 2019, plaintiff was injured while working as a laborer for Cuetes at a construction site located at 542 W 22nd Street, New York, New York. At the time of the accident, plaintiff was pushing a cart filled with planks up a ramp (Plaintiff 1/21/22 Tr. at 35:15-36:12 [NYSCEF Doc. 86]; Plaintiff 8/18/22 Tr. at 94:24-95:3 [NYSCEF Doc. 87]). Plaintiff took two steps onto the ramp when his left foot went into a 4-inch-wide, 2.5-foot-deep hole, causing him to fall (id. at 97:15-100:22, 107:3-16).

Westerman employee David Stadler did not witness the accident, but was told that plaintiff had slipped (Stadler Tr. at 58:2-59:3 [NYSCEF Doc. 89]). Specifically, Stadler heard from laborer Richard Cabrera that someone had slipped and could not get up (id. at 58:7-16). Stadler did not know if Cabrera witnessed the accident, and Cabrera was never deposed (id. at 58:17-19). Plaintiff testified that while there was a large icy area in front of the ramp, he did not slip on that ice (Plaintiff 8/18/22 Tr. at 89:20-23). He also testified that there was no ice on the ramp itself (id. at 148:13-19).

Helzen is the owner of the premises; Hauser leased the property; and Westerman was the general contractor for the construction project (Stradler Tr. at 22:4-8; Westerman-Republic Contract [NYSCEF Doc. 92]). Republic was the demolition and scaffolding subcontractor on the project (Hama Tr. at 19:7-14 [NYSCEF Doc. 91]). Republic's subcontractor, Cuetes, was performing or installing the scaffolding work at the time of the accident, pursuant to a yearly agreement (id. at 26:7-27:24).

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, Inc. v Ceppos, 46 NY2d 223, 231 [1978]).

I. Labor Law § 200 and Common Law Negligence

Plaintiff does not oppose Republic's motion seeking dismissal of his claims under Labor Law § 200 and for common law negligence. Plaintiff declined to brief these claims and seems [*3]only to argue that Republic lacks standing to move for summary judgment dismissing the complaint (Moskowitz Aff. ¶ 5 [NYSCEF Doc. 115]), which argument is rejected (see Urquia v Deegan 135 Realty LLC, 231 AD3d 567, 568 [1st Dept 2024]). Therefore, plaintiff's claims claims for violation of Labor Law § 200 and for common law negligence are dismissed as abandoned (see Gamez v Sandy Clarkson LLC, 221 AD3d 453, 454-455 [1st Dept 2023]; Martin Assoc., Inc. v Illinois Natl. Ins. Co., 188 AD3d 572, 573 [1st Dept 2020]; Saidin v Negron, 136 AD3d 458, 459 [2016], lv dismissed 28 NY3d 1069 [2016], cert denied 583 US 842 [2017]).

II. Labor Law § 241 (6) & Cross-Motion to Amend Bill of Particulars

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 pled violations of Industrial Code §§ 23-1.7 (d) and 23-1.22 (b) in his sixth supplemental bill of particulars (NYSCEF Doc. 103). However, plaintiff abandoned the Industrial Code § 23-1.22 predicate by failing to specifically plead the subsection in his bill of particulars (Caminiti v Extell W. 57th St. LLC, 166 AD3d 440, 441 [1st Dept 2018]; McLean v Tishman Constr. Corp., 144 AD3d 534, 535 [1st Dept 2016], and by not seeking to amend the bill of particulars to assert a subsection thereof (cf. Marte v Tishman Constr. Corp., 223 AD3d 527, 528 [1st Dept 2024]).

The Court finds that Industrial Code § 23-1.7 (d) is inapplicable to the subject accident. Although plaintiff's counsel asserts that "a defendant" claims plaintiff slipped (Moskowtiz Aff. ¶¶ 2-3 [NYSCEF Doc. 115]), there is at most vague testimony by Stadler, premised on inadmissible hearsay, which cannot support plaintiff's proposed predicate. Moreover, plaintiff testified that he did not slip and fall on ice.

Plaintiff cross-moves for leave to amend his bill of particulars to assert violations of Industrial Code §§ 23-1.7 (b) (1) (i), (e) (1), and (e) (2). Even where note of issue has been filed, a failure to plead an Industrial Code predicate is not necessarily fatal to a Labor Law § 241 (6) cause of action, in the absence of unfair surprise or prejudice (Marte, 223 AD3d at 528).

The request to plead violations of Industrial Code §§ 23-1.7 (b) (1) (i), (e) (1), and (e) (2) is denied as "patently devoid of merit" (Marte, 223 AD3d at 528). Section 23-1.7 (b) (1) (i) only applies to holes big enough for a person to fall completely through, which was not the case here (id. at 529). Section 23-1.7 (e) (1) is inapplicable, since a ramp is a "working area" and not a "passageway" (see Castaldo v F.J. Sciame Constr. Co. Inc., 222 AD3d 579, 579 [1st Dept 2023]). Finally, Industrial Code § 23-1.7 (e) (2) pertains to tripping hazards from "accumulations of dirt and debris and from scattered tools and materials and from sharp projections." On the facts presented, this predicate is also inapplicable and therefore palpably improper (cf. id.). Therefore, Republic's motion for summary judgment dismissing the complaint is granted.

Given plaintiff's abandonment of his claims under Labor Law § 200 and for common law [*4]negligence, and the dismissal of Labor Law § 241 (6) claim for the reasons discussed, it is hereby

ORDERED that the motion by third-party plaintiff/second third-party plaintiff Republic Scaffold & Hoist Corp. for summary judgment is GRANTED IN PART as directed to the complaint, which is DISMISSED in its entirety, and the remainder of the motion is DENIED as moot; and it is further

ORDERED that plaintiff's cross-motion for leave to serve an amended bill of particulars to assert violations of Industrial Code §§ 23-1.7 (b) (1) (i), (e) (1), and (e) (2), as predicates for his Labor Law § 241 (6) claim, is DENIED; and it is further

ORDERED that third-party plaintiff/second third-party plaintiff Republic Scaffold & Hoist Corp. shall serve a copy of this order with notice of entry upon plaintiff within 20 days of entry.

This constitutes the decision and order of the Court.

DATE 12/22/2025

ASHLEE CRAWFORD, AJSC