Rodriguez v Condominiums Bd. of the Bd. of the One Lincoln Plaza Condominium

Supreme Court, Bronx County

Decided on December 29, 2025

Index No. 24259/2019E

Ashlee Crawford, J.

Plaintiff Julio E. Rodriguez moves pursuant to CPLR 3212 for summary judgment as to liability on his Labor Law §§ 240 (1) and 241 (6) claims against defendants The One Lincoln Plaza Condominium ("Condo"), Skyline Restoration Inc. ("Skyline"), and Oneteam Restoration, Inc. ("Oneteam") (mot. seq. 004).^FN1 Oneteam, Skyline, the Condo, and The Condominiums Board of the Board of the One Lincoln Plaza Condominium [sic] ("Board") separately oppose plaintiff's motion.

The Board and the Condo move for summary judgment dismissing plaintiff's Labor Law §§ 240 (1), 241 (6), 200 and common-law negligence claims against the Board; dismissing plaintiff's Labor Law § 200 and common-law negligence claims against the Condo; granting the Condo's cross-claims for contractual indemnification and breach of contract against defendant Skyline; and dismissing Skyline's and Oneteam's cross-claims asserted against the Board and [*2]Condo (mot. seq. 005). Plaintiff opposes the motion.

The Condo and Board assert cross-claims for contractual and common law indemnity (against Skyline), breach of contract for failure to procure insurance (against Skyline), contribution (against Skyline), reimbursement (against Skyline), common law indemnification (against all co-defendants), and contribution (against all co-defendants)(NYSCEF Doc. 82).

BACKGROUND

This action arises out of an accident that occurred on September 26, 2018 at a building restoration project located at 20 West 64th Street, New York County. Plaintiff was standing on a scaffold platform, cleaning brick walls, when he stepped on a piece of the platform that flipped up, creating an opening through which plaintiff fell. The Condo owns the common areas of the building. It hired Skyline to serve as general contractor for the façade repair project; Skyline hired Oneteam as subcontractor to perform the façade repair; and Oneteam retained plaintiff's employer, non-party Master Builders Restoration (Master Builders), as sub-subcontractor to perform the façade repair work.

Plaintiff testified that he was employed by Skyline or Master Builders to clean exterior walls after pointing work was completed (Pl's 6/30/21 Tr. at 52:22-53:18, 108:22-109:2 [NYSCEF Doc. 87]). He cleaned the walls for three days before the date of his accident (id. at 112:6-11). When plaintiff arrived at the job site, he received instructions and his assignment from his foreman, Giovani, who worked for Skyline (id. at 121:16-25; Pl's 6/6/22 Tr. at 105:20-106:11 [NYSCEF Doc. 89]). Plaintiff brought his own tools and safety devices (Pl's 6/6/22 Tr. at 106:12-107:3). Plaintiff testified that he had a harness but did not need to use it when he worked on a "fixed to the ground scaffold" (Pl's 6/6/22 Tr. at 107:4-23). He also testified that he was instructed not to use a harness since his assignment required him to move side to side and there was nowhere to tie off (id. at 109:7-14). Plaintiff was attempting to walk to his right as he looked up to the brick he was about to wash, when a scaffold wooden plank "lifted when [he] stepped on it, and [] fell down on that hole" (id. at 113:5-13). He believed he fell three feet (id. at 113:14-17). Plaintiff testified that after the fall, he was stuck between the plank and some metal that impacted his neck and shoulder (id. at 113:18-25). The scaffold was previously installed when plaintiff started work at this job site (id. at 115:21-25). Plaintiff recalled making complaints about unsecured planks to his foreman and other workers but was reassured that they were safe to use (id. at 116:6-12). He testified that he never observed or felt the planks tilt or move before his accident occurred (id. at 138:20-139:2).

Brian Perna is a property manager of the building and testified on behalf of the Condo (Condo Tr. at 15:21-23 [NYSCEF Doc. 91]). Perna testified that Skyline was retained to serve as general contractor to perform façade repairs (id. at 30:1-6) and that all subcontractors were hired by Skyline (id. at 35:20-36:2). Perna stated Skyline was responsible for safety on the job site (id. at 36:3-5) and that if he observed an unsafe working condition, he would report it to Skyline first (id. at 56:10-57:7). Perna walked the job site on a weekly as-needed basis to check on the progress of the work (id. at 41:11-21, 42:2-10) but the Condo did not conduct inspections (id. at 93:7-23). Perna was not familiar with a company by the name of Oneteam (id. at 37:12-17).

Jose Santos was a foreman for Skyline and Master Builders; he testified on behalf of Skyline (Skyline 7/12/23 Tr. at 18:4-8, 20:8-15, 23:12-14 [NYSCEF Doc. 92]). Santos went by the name Giovanni (id. at 10:9). As foreman, Santos assigned tasks to the workers and was responsible for ordering materials for the project (id. at 20:12-15). He did not know if Oneteam was working on the project (id. at 34:19-35:8). Santos testified that Master Builders was hired to [*3]perform demolition, install brick, and clean up (id. at 38:13-17). He further testified that the sidewalk bridge and pipe scaffold was inspected daily (id.at 45-47). Santos testified that the pipe scaffolds were installed by Spring Scaffolding and that Skyline erected the hanging scaffold (id. at 72:2-73:2). When he inspected the scaffold, Santos made sure it was secure and not loose (id. at 77:24-78:14). Santos understood that scaffold planks had to be secured due to wind or when other people walk on them (id. at 84:24-85:5). He inspected the pipe scaffold before he started work (id. at 91:14-25). He testified that he learned about plaintiff's accident when plaintiff called him (id. at 95:12-19). Santos testified that the planks are usually secured against each other with nails and he did not know why the plank fell at the time of plaintiff's accident (id. at 100:8-18).

Mario Rojas testified on behalf of Oneteam. Rojas was the owner of Oneteam and recalled his company being hired to work on a masonry project at the building (Oneteam Tr. at 20:20-21:3, 26:18-23 [NYSCEF Doc. 94]). Rojas visited the job site on a weekly basis (id. at 25:20-24). He recalled that Skyline served as general contractor and that Skyline hired Oneteam (id. at 27:19-25, 33:19-23). Rojas testified that Oneteam was not responsible for providing pipe or support scaffolding (id. at 35:21-25) and that Oneteam did not erect the scaffold (id. at 36:9-13). Oneteam subcontracted all the work for the subject project; no Oneteam employee visited the job site; and Rojas never attended any job meetings at the site (id. at 50:21-52:24, 56:7-13). Rojas testified that Master Builders was responsible for inspecting the scaffolding daily since Oneteam subcontracted all the work to them (id. at 59:2-6, 69:19-70:7).

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. Proper Labor Law Defendant

Generally, a party will be held liable as an "owner" under the Labor Law where it contracted for the construction work being performed at the time of the plaintiff's accident (see Tropea v Tishman Constr. Corp., 172 AD3d 450, 451 [1st Dept 2019]). Further, a party that is delegated the authority to supervise and control the injury-producing work renders it liable as a statutory agent of the owner or general contractor (Rodriguez v Riverside Ctr. Site 5 Owner LLC, 240 AD3d 452, 454 [1st Dept 2025]; Otero v 635 Owner LLC, 210 AD3d 435, 437 [1st Dept 2022]; Santos v Condo 124 LLC, 161 AD3d 650, 653 [1st Dept 2018]). The parties' actual course of practice is controlling for the purpose of determining whether a party is a statutory agent of the owner or general contractor under the Labor Law (see Ortega v Catamount Constr. Corp., 264 AD2d 323, 324 [1st Dept 1999], lv denied 94 NY2d 755 [1999]).

The Court finds that the Board is not a proper Labor Law defendant. The Board was not in privity with Skyline, or any other contractors or subcontractors involved with the façade repair project at the building (Hernandez v Port Auth. of NY & N.J., 241 AD3d 1069, 1071 [1st Dept 2025]). Also, the Board did not have control over plaintiff or the accident area (id.). As there is [*4]no evidence that the Board was delegated the authority to supervise or control plaintiff's work, it cannot be found liable as a statutory agent of the owner or general contractor under the Labor Law. Therefore, plaintiff's Labor Law claims against the Board are dismissed.

The Court finds that defendant Oneteam is a proper Labor Law defendant and operated as a statutory agent for Skyline. The evidence demonstrates that Skyline contracted with Oneteam to perform façade repair work, and Oneteam subcontracted all the proposed work to plaintiff's employer, Master Builders, thereby possessing the authority to exercise supervision and control over the injury-producing work (Badzio v East 68th St. Tenants Corp., 200 AD3d 591, 592 [1st Dept 2021]). Whether Oneteam actually exercised supervision and control over the work that brought about plaintiff's injuries is irrelevant (see Barreto v Bd. of Managers of 545 W. 110th St. Condominium, 234 AD3d 515, 516-517 [1st Dept 2025]; Rodriguez v Riverside Ctr. Site 5 Owner LLC, 240 AD3d 452, 454 [1st Dept 2025]; DeMaria v RBNB 20 Owner, LLC, 129 AD3d 623, 625 [1st Dept 2015]). Likewise, whether Oneteam delegated its contractual responsibility to supervise and control the injury-producing work to plaintiff's employer—Master Builders—is of no moment, as it does not absolve defendant Oneteam from the imposition of strict liability under Labor Law §§ 240 (1) and 241 (6) (see id.).

II. Labor Law § 240 (1)

Plaintiff seeks summary judgment as to liability on his Labor Law §§ 240 (1) claim against the Condo, Skyline, and Oneteam.

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]).

Plaintiff has met his prima facie burden under Labor Law § 240 (1) by showing that his injuries resulted from a gravity-related fall stemming from the failure of the Condo, Skyline, and Oneteam to provide an adequate safety device in the form of properly secured scaffolding to protect plaintiff against the hazards associated with the performance of elevated work, a failure of which proximately caused his accident (see Francis v 3475 Third Ave. Owner Realty, LLC, [*5]213 AD3d 555, 556 [1st Dept 2023]). "It is well settled that a statutory violation is established if a scaffold or ladder shifts, slips, or collapses, thereby causing injury to a worker" (Castillo v TRM Contr. 626, LLC, 211 AD3d 430, 430 [1st Dept 2022], citing Panek v County of Albany, 99 NY2d 452, 458 [2003]). In opposition, defendants the Condo, Skyline, and Oneteam failed to raise a triable issue of fact.

Whether plaintiff fell twelve inches, as the owner of Master Builders, Manuel Ramos, avers (Ramos Aff., ¶ 8 [NYSCEF Doc. 117]), or three feet, as plaintiff testified (Pl. 6/6/22 Tr. at 113:14-17 [NYSCEF Doc. 89]), is legally unavailing, as there is no issue of fact as to the nonexistence or inadequacy of the safety devices provided to plaintiff to perform his cleaning work (Iuculano v City of New York, 214 AD3d 535, 535-536 [1st Dept 2023]).

Accordingly, plaintiff is awarded summary judgment as to liability on his Labor Law § 240 (1) claim against the Condo, Skyline, and Oneteam.

III. 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 premised on a violation of Industrial Code 12 NYCRR § 23-5.1(e)(1) (scaffold planking). Plaintiff abandons all other predicates not raised in his legal arguments; as such, those claims are dismissed to that extent (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]).

Section 23-5.1(e)(1) requires that scaffold planking be "laid tight." The court finds that plaintiff demonstrates his prima facie entitlement to summary judgment on his Labor Law § 241 (6) claim as predicated on a violation of § 23-5.1(e)(1). Plaintiff specifically testified that the wooden plank he stood on, while attempting to clean an exterior brick, shifted and "lifted" causing him to fall; plaintiff also complained that the planks were unsecured and he was instructed to continue the work (see Dyszkiewicz v City of New York, 194 AD3d 444, 445 [1st Dept 2021]; Mora v Wythe and Kent Realty LLC, 171 AD3d 426, 426 [1st Dept 2019]; Kristo v Board of Educ. of the City of NY, 134 AD3d 550, 550-551 [1st Dept 2015]). In opposition, defendants fail to raise a triable issue of fact that they complied with the regulation.

Accordingly, plaintiff's motion seeking summary judgment as to liability on his Labor Law § 241 (6) claim, predicated on a violation of Industrial Code 12 NYCRR § 23-5.1(e)(1), and asserted against the Condo, Skyline, and Oneteam, is granted.

IV. Labor Law § 200 and/or Common Law Negligence

The Board and Condo move for summary judgment dismissing of plaintiff's Labor Law § 200 and common law negligence claims against them. Although the Labor Law claims are dismissed against the Board, it may still be liable under common law negligence principles.

"In order to prevail in any action premised upon [common law] negligence, it must be [*6]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.).

The Board and Condo have established their prima facie entitlement to dismissal of the Labor Law § 200 and common-law negligence claims. No evidence exists that either defendant knew or should have known that the scaffold planking was unsecured or would suddenly shift during the performance of plaintiff's work (see DeJesus v 935 Bronx Riv. Ave., LLC, 213 AD3d 552, 553 [1st Dept 2023]). There is also no evidence that the Board or the Condo exercised supervision or control over the injury-producing work beyond general supervisory authority to cure a defective condition or correct a hazard (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505 [1993]; Carranza v Memorial Hosp. for Cancer & Allied Diseases, 225 AD3d 536, 537 [1st Dept 2024]). Therefore, plaintiff's Labor Law § 200 and common law negligence claims against the Board and Condo are dismissed.

V. Contractual Indemnification against Skyline

The Condo moves for summary judgment on its cross-claim against Skyline for contractual indemnification. Although this part of the motion is unopposed, the Condo has not met its prima facie burden, and summary judgment is denied as premature.

"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]).

The indemnification provision does 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]). The indemnification provision is narrowly worded to provide for indemnification "only to the extent caused by the negligent acts or omissions" of Skyline or its subcontractors (Skyline Contract § 3.18.1 [NYSCEF Doc. 132]). [*7]As there has been no finding of negligence by Skyline or its subcontractors, summary judgment on the Condo's contractual indemnification cross-claim is denied as premature.

VI. Breach of Contract against Skyline

The Condo moves for summary judgment on its cross-claim against Skyline for breach of contract for failure to procure insurance. There is no opposition.

"A party moving for summary judgment on its claim for failure to procure insurance meets its prima facie burden by establishing that a contract provision requiring the procurement of insurance was not complied with" (Benedetto v Hyatt Corp., 203 AD3d 505, 506 [1st Dept 2022]). "The burden then shifts to the opposing party, who may raise an issue of fact by tendering the procured insurance policy in opposition to the motion" (id.). "[A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" (Quadrant Structured Prods. Co., Ltd. v Vertin, 23 NY3d 549, 559-560 [2014]).

The Skyline Contract requires Skyline to procure insurance, which shall name the Condo as additional insured for claims caused in whole or in part by Skyline's negligent acts or omissions during Skyline's operations (Skyline Contract § 11.1.4 [NYSCEF Doc. 132]). For the same reasons discussed above, summary judgment on this cross-claim is denied as premature.

VII. Cross-Claims against the Board and Condo

The Board and Condo move for summary judgment dismissing all cross-claims asserted against them by Skyline and Oneteam. Skyline and Oneteam have not opposed the motion. Therefore, summary judgment is granted in favor of the Board and Condo dismissing all cross-claims asserted against them by Skyline and Oneteam.

The Court has considered the parties' remaining contentions and any request for relief not expressly addressed by the Court it is denied.

Accordingly, it is hereby

ORDERED that plaintiff's motion for summary judgment as to liability on his Labor Law §§ 240 (1) and 241 (6) claims against defendants The One Lincoln Plaza Condominium, Skyline Restoration Inc., and Oneteam Restoration, Inc. is GRANTED (mot. seq. 004); and it is further

ORDERED that the motion for summary judgment by defendants The Condominiums Board of the Board of The One Lincoln Plaza Condominium and The One Lincoln Plaza Condominium (mot. seq. 005) is GRANTED IN PART, such that:

Plaintiff's claims asserted against defendant The Condominiums Board of the Board of The One Lincoln Plaza Condominium are DISMISSED; and

Plaintiff's Labor Law § 200 and common law negligence claims asserted against defendant The One Lincoln Plaza Condominium are DISMISSED; and

Summary judgment on One Lincoln Plaza Condominium's cross-claims against Skyline Restoration Inc. for contractual indemnification and breach of contract are DENIED; and

The cross-claims by Skyline and Oneteam asserted against defendants The Condominiums Board of the Board of The One Lincoln Plaza Condominium and The One Lincoln Plaza Condominium are DISMISSED; and it is further

ORDERED 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 12/29/2025

ASHLEE CRAWFORD, A.J.S.C.