Lopez v Salm Props., LLC

Supreme Court, Bronx County

Decided on December 22, 2025

Index No. 30616/2018E

Ashlee Crawford, J.

The following e-filed documents, listed by NYSCEF document number (Motion 002 were read on this motion to/for JUDGMENT - SUMMARY.

Upon the foregoing documents, it is

Plaintiff moves pursuant to CPLR 3212 for partial summary judgment as to liability on his claim under Labor Law § 240 (1) asserted against defendants Salm Properties, LLC ("Salm") and 1 Oak Contracting LLC ("1 Oak"). Defendants oppose.

BACKGROUND

On September 4, 2018, plaintiff was injured while working as a laborer at a construction project at 2119 46th Avenue, Long Island City, New York. Defendant Salm is the owner of the premises who retained 1 Oak as the general contractor for the project. 1 Oak retained plaintiff's employer, third-party defendant Benchmark Contracting Inc. ("Benchmark").

At the time of the accident, plaintiff was picking up and placing wooden forms into a pile (Pl. 11/12/21 Tr. at 55:10-56:17 [NYSCEF Doc. 51]; Pl. 7/6/22 Tr. at 20:22-21:6 [NYSCEF Doc. 52]). Plaintiff was onsite with two other workers; one of whom was manning the excavator, moving materials, such as wood and metal parts and beams, onto the back of a truck (Pl. 11/12/21 Tr. at 52:4-55:4). With his back to the excavator, plaintiff was bending over to pick up wood when he felt a metal beam collide with his right shoulder, knocking plaintiff to his knees, before landing on plaintiff's right hand (Pl. 11/12/21 Tr. at 57:3-61:23; Pl. 7/6/22 Tr. at 22:23-23:20, 27:7-29:9). Plaintiff's hand remained pinned to the ground until a coworker came to remove the beam (Pl. 7/6/22 Tr. at 29:5-30:20). Plaintiff did not observe that the beam came from the excavator, but believes the beam came from the excavator because there were ropes hanging from the excavator (Pl. 11/12/21 Tr. at 61:5-12; Pl. 7/6/22 Tr. at 19:3-11).

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 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 a building is being erected, demolished, repaired, or altered, 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 [*2]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]).

"In order to prevail on summary judgment in a section 240(1) 'falling object' case, the injured worker must demonstrate the existence of a hazard contemplated under that statute and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein (Fabrizi v 1095 Ave. of the Americas, LLC, 22 NY3d 658, 662 [2014][internal quotation marks and citation omitted]). "Essentially, the plaintiff must demonstrate that at the time the object fell, it either was being "hoisted or secured," or "required securing for the purposes of the undertaking" (id. [internal citations omitted]). Section 240(1) does not automatically apply simply because an object fell and injured a worker; a plaintiff must show that the object fell "because of the absence or inadequacy of a safety device of the kind enumerated in the statute" (id. [emphasis removed, citation omitted]).

Plaintiff has met his prima facie burden under Labor Law § 240(1) and defendants fail to raise an issue of fact to defeat summary judgment.

Accordingly, it is hereby

ORDERED that plaintiff's motion for partial summary judgment as to liability on his claim under Labor Law § 240 (1) is GRANTED against each defendant; 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 12/22/25

HON. ASHLEE CRAWFORD