Rodriguez v Lendlease (US) Constr., Inc.

Supreme Court, Bronx County

Decided on December 22, 2025

Index No. 20518/2020E

Ashlee Crawford, J.

The following e-filed documents, listed by NYSCEF document number (Motion 1) 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 69, 70, 71, 72, 73, 74, 77 were read on this motion to/for JUDGMENT - SUMMARY.

The following e-filed documents, listed by NYSCEF document number (Motion 2) 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 75, 76, 78, 79 were read on this motion to/for JUDGMENT - SUMMARY.

Plaintiff Julian Rodriguez moves pursuant to CPLR 3212 for partial summary judgment as to liability on his Labor Law § 241 (6) claim, as predicated on a violation of Industrial Code §§ 23-1.7 (d), (e)(1), (e)(2), and (f) (mot. seq. 001). Defendants oppose.

Defendants move for summary judgment dismissing the complaint, including the claims under Labor Law §§ 200, 240, and 240 (6) and for common law negligence (mot. seq. 002). Plaintiff opposes defendants' motion and cross-moves to amend his bill of particulars to allege violations of Industrial Code 12 NYCRR 23-1.7 (d), 23-1.7 (e) (1), 23-1.7 (e) (2), and 23-1.7 (f) (mot. seq. 002). Defendants oppose the cross-motion.

BACKGROUND

This action arises out of an accident that occurred on December 3, 2019, at 430 East 58th Street, New York, New York (the "premises"). Defendants Sutton 58 Associates LLC and Sutton 58 Holding Company LLC (collectively "Sutton") own the premises, and hired defendant Lendlease (US) Construction, Inc. ("Lendlease") as general contractor to build a 62-story [*2]building at the premises. Lendlease subcontracted with plaintiff's non-party employer, Pinnacle Industries, to build the concrete superstructure of the building.

On the day of the accident, plaintiff was working on the top floor of the building, which he accessed by means of an external hoist (see Pl. Tr. at 42 [NYSCEF Doc. 29]). To leave the work area, he took the hoist down to ground level, where a wooden ramp led down to a turnstile about 20 to 25 feet away from the bottom of the ramp (Denora Tr. at 27-31 [NYSCEF Doc. 33]). The ramp had a plywood cap and a metal grating on top to prevent workers from slipping (Cafuoco Tr. at 40 [NYSCEF Doc. 30]). The certified weather report and site logs attached to the moving papers indicate that there was rain and snow from December 1, 2019, through December 3, 2019, the day of the accident (Certified Weather Report at 28 [NYSCEF Doc. 32]; Daily Log [NYSCEF Doc. 41]). John Denora, the site safety manager, testified that workers would track precipitation into the premises when it snowed or rained (Denora Tr. at 31). He also testified that Lendlease had workers on site specifically to clean up snow and ice (id. at 31-32).

At about 11:45 a.m. in the morning, plaintiff descended the exterior hoist to go to lunch (Pl. Tr. at 42-45). There was snow that day and plaintiff brushed snow off his body and boots (id. at 43-45). As he exited the hoist, he noticed that the ground was wet and slippery (id. at 45). As plaintiff walked towards the bottom of the ramp, he reached a portion of the ramp enclosed by two walls, whereupon he slipped on a "puddle of water" or "ice patch" and fell on to the ramp (id. at 46). He noted patches of ice on the ramp both before and after the accident (id. at 50-51, 58). Steve Pierre, one of plaintiff's coworkers, witnessed the accident, and confirmed the presence of ice on the ramp where plaintiff slipped (Pierre Aff. ¶¶ 2-3 [NYSCEF Doc. 36]).

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)

Defendants move to dismiss plaintiff's Labor Law § 240 (1) claim and plaintiff opposes the motion. 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 [*3]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]).

Here, defendants have established prima facie entitlement to dismissal of this claim. Plaintiff alleges that, while walking down the ramp toward the exit of the building, he slipped and fell on water or ice that was present on the ramp, landing on the surface of the ramp. The primary factor as to whether an accident on a ramp implicates section 240 (1) is "whether the ramp covered a significant elevation differential" (Liu v Whitestar Consulting & Contr., Inc., 219 AD3d 1249, 1250-1251 [1st Dept 2023]). Here, photographs of the ramp do not show a significant elevation differential between the top and the bottom sufficient to trigger Labor Law 240 (1) liability (photographs [NYSCEF Doc. 58]; cf. Latteri v Port of Auth. of New York and New Jersey, 205 AD3d 546 [1st Dept 2022]; Landi v SDS William St., LLC, 146 AD3d 33, 38 [1st Dept 2016]; Aramburu v Midtown W. B, LLC, 126 AD3d 498, 499 [1st Dept 2015]).

Accordingly, that part of defendants' motion for summary judgment dismissing plaintiff's Labor Law § 240 (1) claim is granted.

II. Cross-Motion to Amend his Bill of Particulars

Plaintiff cross-moves to amend his bill of particulars to add specific violations of Industrial Code 12 NYCRR 23-1.7 (d), 23-1.7 (e) (1), 23-1.7 (e) (2), and 23-1.7 (f). Defendants oppose the cross-motion.

Generally, a party may serve a supplemental bill of particulars without leave of court at any time, but not less than 30 days prior to trial (CPLR 3043 [b], [c]). A bill of particulars is meant to "amplify the pleadings, limit the proof and prevent surprise at trial" (Harris v Ariel Transp. Corp., 37 AD3d 308, 309 [1st Dept 2007]). The fact that a motion for leave to amend a pleading "is made after a note of issue does not of necessity call for its denial" (Jacobson v. Croman, 107 AD3d 644, 645 [1st Dept 2013] [internal quotation marks and citation omitted]).

A court has the discretion to allow a party to amend its bill of particulars after a note of issue has been filed, unless the proposed amendment advances a new theory of liability, and the party opposing the amendment shows it will suffer resulting prejudice (see Chapman v Tovar, 235 AD3d 552, 552 [1st Dept 2025]). A proposed amendment advances a new theory if it raises a new cause of action not pleaded in the complaint and does not "merely expound on theories of liability" already set forth in a prior bill of particulars (Napolitano v Gustavson, 190 AD3d 530, 530-531 [1st Dept 2021]). In determining whether to allow a plaintiff to amend her bill of particulars, courts also consider whether the proposed amendment is applicable to the case (see Stubbs v 350 E. Fordham Rd. LLC, 117 AD3d 642, 643 [1st Dept 2014]).

Here, while he did not list them in his bill of particulars, plaintiff alleged violations of Industrial Code 12 NYCRR 23-1.7 (d), 23-1.7 (e) (1), and 23-1.7 (e) (2) in his complaint (Complaint ¶ 31 [NYSCEF Doc. 1]). Accordingly, there is no need to amend the bill of particulars to include those specific provisions (cf. Marte v Tishman Constr. Corp., 223 AD3d [*4]527, 528 [1st Dept 2024]).

Industrial Code 12 NYCRR 23-1.7 (f) ("Vertical passage") — which plaintiff does not plead in the complaint or bill of particulars (see Bill of Part. ¶¶ 5, 8, 10-12, 28, 35-38 [NYSCEF Doc. 28]) — provides that "[s]tairways, ramps or runways shall be provided as the means of access to working levels above or below ground except where the nature or the progress of the work prevents their installation in which case ladders or other safe means of access shall be provided." Here, it is undisputed that defendants provided the ramp, and the cases plaintiff cites do not indicate that an otherwise functioning ramp with a temporarily slippery surface violates this provision (see, e.g., Lelek v Verizon New York, Inc., 54 AD3d 583, 585 [1st Dept 2008] [finding violation of section 23-1.7 (f) where defendants failed to provide ladder or other means of safe access]). Section 23-1.7 (f) being inapplicable to the facts of this case, plaintiff's cross-motion to amend the bill of particulars to allege a violation of that provision is denied (see Goldman v Vanguard Constr. and Dev. Co., Inc., 236 AD3d 465, 466 [1st Dept 2025]).

Accordingly, plaintiff's cross-motion to amend his bill of particulars is denied in its entirety.

III. Labor Law § 241 (6)

Plaintiff moves for partial summary judgment on his Labor Law § 241 (6) claim, as predicated on a violation of Industrial Code §§ 23-1.7 (d), (e)(1), and (e)(2) (mot. seq. 001). Defendants oppose plaintiff's motion and move for summary judgment dismissing that claim (mot. seq. 002). Plaintiff opposes defendants' motion.

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 contests only the dismissal of, and seeks summary judgment on, Industrial Code 12 NYCRR 23-1.7 (d), 23-1.7 (e) (1) and 23-1.7 (e) (2). All other predicates not raised in plaintiff's legal 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]).

The three Industrial Code provisions at issue are sufficiently specific to support Labor Law 241 (6) liability as a matter of law (see Bazdaric v Almah Partners LLC, 41 NY3d 310, 317-319 [2024][section 23-1.7 (d)]; Smith v Extell W. 45th LLC, 230 AD3d 1044, 1045 [1st Dept 2024][section 23-1.7 (e)(1) and (e)(2)]; Singh v Young Manor, Inc., 23 AD3d 249, 249 [1st Dept 2005][ section 23-1.7 (e)(2)]).

Industrial Code 12 NYCRR 23-1.7 (d) ("Slipping hazards") provides that employers must remedy any slippery condition in the workplace, including those caused by "[i]ce, snow, water, grease and any other foreign substance." "Foreign substances," for purposes of the statute, are those that are slippery when in contact with "an area where someone walks," and, when present in such an area, "would make it difficult if not impossible to use the work area safely" (Bazdaric [*5]v Almah Partners LLC, 41 NY3d 310, 320 [2024]).

Similarly, section 23-1.7 (e) provides that passageways (subsection 23-1.7 [e] [1]) and working areas (subsection 23-1.7 [e] [2]) must be kept free of "accumulations of dirt and debris," "sharp projections," and other obstructions which might cause injury. Sections 23-1.7 (e) (1) and (e) (2) apply broadly to slipping and tripping hazards, as well as "other hazards" that might arise from the accumulation of dirt and debris or sharp projections (Ruisech v Structure Tone Inc., 42 NY3d 1061, 1065 [2024], rearg denied, 43 NY3d 939 [2025]; Pereira v New School, 148 AD3d 410, 412 [1st Dept 2017]).

Here, plaintiff's allegations fall within the ambit of the above sections. Plaintiff alleges that he was walking down the ramp when he slipped on ice and fell. Ice is specifically named in section 23-1.7 (d) as a slipping hazard that must be remediated; and the ramp constitutes a passageway, as it was the sole means of accessing the personnel hoist to plaintiff's work area (see Bradley v NYU Langone Hosps., 223 AD3d 509, 510-511 [1st Dept 2024]). Moreover, snow and ice are encompassed by section 23-1.7 (e) as hazards to be remediated (Maza v University Ave. Dev. Corp., 13 AD3d 65, 66 [1st Dept 2004]).

In opposition, defendants cite no authority for the proposition that reasonable precautions, such as installing metal grating on the ramp to prevent slips, excuse them from liability for the accident. Nor do they support their argument that a dangerous condition must be longstanding to obligate them to remediate it. In any case, as set forth above, Denora testified that workers tracking snow and slush into the premises during inclement weather was a recurring problem (Denora Tr. at 31-32). The Court also rejects defendants' "integral to the work" defense (Bazdaric, 41 NY3d at 320), since plaintiff did not allege that he slipped on the grating, but rather on ice that defendants allowed to remain on the ramp on top of the grating.

Defendants, however, raise an issue of fact by submission of Dimitri Cafuoco's testimony. Cafuoco, Lendlease's senior superintendent, testified that he examined the ramp following the accident and did not see any slipping hazard (Cafuoco EBT Tr. at 72-74).

Accordingly, that part of plaintiff's motion for partial summary judgment on his Labor Law § 241 (6) claim is denied. That part of of defendants' motion to dismiss this claim is denied as premised on violations of Industrial Code §§ 23-1.7 (d), 23-1.7 (e) (1), and 23-1.7 (e) (2), but is granted as to all other predicates.

IV. Labor Law § 200 and Common Law Negligence

Defendants move to dismiss plaintiff's Labor Law § 200 and common law negligence claims. Plaintiff opposes.

"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 [*6]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.).

Here, it is undisputed that plaintiff alleges a dangerous condition on the premises rather than an injury caused by the means and methods of the work. Defendants' have not met their initial burden of establishing their lack of actual or constructive notice of the dangerous condition, including because they have not submitted proof of when they last cleaned or inspected the area of the accident (see Coon v WFP Tower B Co. LP, 220 AD3d 407, 409 [1st Dept 2023]; Kolakowski v 10839 Associates, 185 AD3d 427, 427-428 [1st Dept 2020]; Spencer v Term Fulton Realty Corp., 183 AD3d 441, 442 [1st Dept 2020]). Defendants rely on Dr. Andrea Levitan's expert affidavit to establish the lack of a dangerous condition, but her opinion is largely based on her review of video evidence and testimony, none of which establishes when defendants last inspected the ramp. Thus, that part of defendant's motion seeking dismissal of plaintiffs' Labor Law 200 and common law negligence claims is denied.

The Court has considered the parties' remaining contentions and any request for relief not specifically addressed 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 (seq. no. 001) ; and it is further

ORDERED that defendants' motion for summary judgment is GRANTED IN PART to the extent that summary judgment is GRANTED as directed to plaintiff's Labor Law § 240 (1) claim, which is DISMISSED; summary judgment is DENIED as directed to plaintiff's common law negligence and Labor Law § 200 claims, as well as to plaintiff's Labor Law § 241 (6) claim predicated only on Industrial Code §§ 23-1.7 (d), 23-1.7 (e) (1) and (e) (2), and is GRANTED as to all other Industrial Code predicates, which are DISMISSED (seq. no. 002); and it is further

ORDERED that plaintiff's cross-motion to amend the bill of particulars is DENIED (seq. no. 002); 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 12/22/2025

HON. ASHLEE CRAWFORD