Sanchez v WC 28 Realty LLC

Supreme Court, Bronx County

Decided on December 29, 2025

Index No. 30668/2019E

Ashlee Crawford, J.

Plaintiff Ricardo Sanchez moves pursuant to CPLR 3212 for partial summary judgment as to liability on his Labor Law § 240 (1) claim against defendants WC 28 Realty LLC ("WC"), Pizzarotti LLC ("Pizzarotti"), and Goldbrecht Inc. ("Goldbrecht") (mot. seq. 002). Pizzarotti and WC, and third-party defendant Bilaver Construction & Management, Inc. ("Bilaver") separately oppose. Goldbrecht opposes and cross-moves for summary judgment against Bilaver for [*2]indemnification, defense costs and attorney's fees, and breach of contract for failure to procure insurance. Bilaver does not oppose the cross-motion.

Bilaver moves for summary judgment dismissing plaintiff's claims under Labor Law §§ 240 (1) and 241 (6), as well as the third-party claims by WC and Pizzarotti for contractual indemnification, common law indemnification and contribution, and breach of contract for failure to procure insurance (mot. seq. 003). Plaintiff opposes dismissal of the Labor Law §§ 240 (1) and 241 (6) claims. WC and Pizzarotti oppose dismissal of the third-party claims for contractual and common law indemnification.

BACKGROUND

On February 23, 2019, plaintiff was injured while working at a construction project at 527 West 27th Street, New York, New York. Plaintiff was standing on the third or fourth rung of a closed eight-foot A-frame ladder, caulking windows, when the ladder moved, causing plaintiff to fall (Plaintiff's 11/18/20 Tr. at 83:25-84:12, 85:22-86:12, 104:16-105:6, 106:16-21, 110:3-11 [NYSCEF Doc. 142]). Plaintiff could not use the ladder in an open position due to space constraints (id. at 108:16-109:3). The ladder was leaning against a wall while plaintiff used it; plaintiff's coworker was not holding the ladder (id. at 90:13-91:13, 95:12-22, 100:22-101:12). Plaintiff was wearing a harness that was connected to a concrete wall (id. at 105:22-106:11, 109:6-17). Prior to the accident, plaintiff made three or four oral complaints to his boss that the ladder was insufficient for his work and there was no safe place to connect his harness, but plaintiff was told to finish the job with the ladder (id. at 68:23-69:20, 70:13-71:11; see also Dewitt Tr. at 27:9-19, 45:23-46:13, 58:7-13, 63:16-24 [NYSCEF Doc. 144]).

WC owned the premises; Pizzarotti was the construction manager (Campoccia Tr. at 21:16-22:9 [NYSCEF Doc 143]); and Goldbrecht was hired as a subcontractor to supply and install windows (id. at 43:2-4; Dewitt Tr. at 12:18-23). Goldbrecht in turn subcontracted the installation of the windows to plaintiff's employer, Bilaver, which provided the ladder in question (Dewitt Tr. at 12:24-13:11; Plaintiff's 11/18/20 Tr. at 71:12-16).

DISCUSSION

I. Prior Ruling on Summary Judgment

Previously, Goldbrecht moved for summary judgment dismissing plaintiff's complaint, and all cross-claims (Notice of Motion [NYSCEF Doc. 44][mot. seq. 001]). Pizzarotti and WC cross-moved for the same relief, as well as dismissal of all counterclaims, and for summary judgment granting contractual indemnification and common law indemnification against Goldbrecht (Notice of Cross-Motion [NYSCEF Doc. 70]).

By prior order dated February 18, 2022, the Court (Suarez, J.) found that the defendants were "entitled to dismissal of the Labor Law § 200 claim, but not §§ 240(1) and 241(6) claims" and that WC and Pizzarotti were entitled to conditional contractual indemnification against Goldbrecht. ("Prior Order" at 1 [NYSCEF Doc. 102]). The Court granted dismissal of plaintiff's Labor Law § 200 claim, finding that Goldbrecht, WC and Pizzarotti established prima facie that plaintiff only received instructions for his work from Bilaver, and that plaintiff "failed to show Goldbrecht or WC exercised actual supervision and control over his injury-producing work" (Prior Order at 1-2 [NYSCEF Doc. 102]).

Concerning plaintiff's Labor Law § 240 (1) claim, the Court rejected Goldbrecht, WC and Pizzarotti's proximate cause arguments, noting that any improper use of a harness would, at most, amount to comparative negligence, which is not a defense to liability under Labor Law 240 (1) (id. at 2).

As to the Labor Law § 241 (6) claim, the Court found all but two predicates — Industrial Code [22 NYCRR] §§ 23-1.16 and 23-1.21 (b) (4) (iv) — were abandoned by plaintiff, and held that plaintiff raised triable issues of fact as to whether those two remaining predicates were violated (id.).

Finally, the Court granted dismissal of WC and Pizzarotti's cross-claim for common law indemnification, since WC did not prove Goldbrecht's negligence; but granted WC and Pizzarotti conditional contractual indemnity against Goldbrecht, because "the issue of Bilaver's negligence has not been determined" (id.).

II. Untimely Cross-Motion

Goldbrecht's cross-motion, while unopposed, was filed 178 days after the filing of the note of issue (see NYSCEF Doc. 112, 156). The Court (Suarez, J.) directed that any motions for summary judgment be filed within "120 days after the completion of discovery" (NYSCEF Doc. 111). The Bilaver deposition, which was still outstanding when plaintiff filed his certificate of readiness for trial, was completed on November 10, 2023 (see NYSCEF Docs. 112 ¶ 8, 145). Thus, summary judgment motions were due March 11, 2024. Goldbrecht asks the Court to consider its untimely cross-motion, because its contract with Bilaver is in the record (Tobin Affirm. ¶¶ 60-61 [NYSCEF Doc. 157]). The Court declines this request.^FN1

In the absence of court order or rule to the contrary, motions for summary judgment must be made no later than 120 days after the filing of the note of issue, except with leave of court on good cause shown (Brill v City of New York, 2 NY3d 648, 652 [2004]; CPLR 3212[a]). An otherwise untimely cross-motion for summary judgment may be considered by the Court, even in the absence of good cause, where a timely motion for summary judgment was made seeking relief "nearly identical" to that sought by the cross-motion (Filannino v Triborough Bridge and Tunnel Auth., 34 AD3d 280, 281 [1st Dept 2006], app dismissed 9 NY3d 862 [2007][citations omitted]). A Court's consideration of a cross-motion, or search of the record, under such circumstances is limited to those causes of action or issues that are the subject of the timely motion (id.). Here, however, the issue of Bilaver's indemnification and alleged breach of contract were not the subject of a timely motion for summary judgment when Goldbrecht filed its untimely cross-motion.^FN2 Thus, the Court will not consider the late cross-motion.

III. Summary Judgment

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.). [*3]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]).

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]).

As an initial matter, the Court finds that plaintiff has demonstrated prima facie that Goldbrecht is a proper Labor Law defendant pursuant to Golbrecht's contract with Pizzarotti, which provides in relevant part that "installation shall be either performed by Goldbrecht specialist installers or supervised by a Goldbrecht factory-trained installer from start to finish of installation of all units (no exceptions)" (Exhibit M of Pizzarotti-Goldbrecht Contract at 37 [NYSCEF Doc. 122]; see Rodriguez v Riverside Ctr. Site 5 Owner LLC, 240 AD3d 452, 454 [1st Dept 2025][to be statutory agent, subcontractor must have been delegated supervision and control over the work]).

Plaintiff has met his prima facie burden on his Labor Law 240(1) claim against WC, Pizzarotti, and Goldbrecht. "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]). "This rule pertains to a fall from a ladder in a closed position where, as here, the conditions of the workplace make it impossible for the worker to place the device in an open, secure position" (id. at 430-431; see Howard v Turner Const. Co., 134 AD3d 523, 524 [1st Dept 2015]; Keenan v Simon Prop. Group, Inc., 106 AD3d 586, 588 [1st Dept 2013]).

Defendants fail to raise a triable issue of fact. That plaintiff had a partner who was tasked with holding the ladder is irrelevant, as people are not safety devices within the meaning of the Labor Law (Iuculano v City of New York, 214 AD3d 535, 536 [1st Dept 2023]). Also, plaintiff being the sole witness to his accident does not preclude summary judgment in his favor (see [*4]Rivera v 712 Fifth Ave. Owner LP, 229 AD3d 401, 402 [1st Dept 2024]).

The Court has already considered and rejected the proximate cause arguments regarding any improper use of a harness which were previously put forth by Goldbrecht, WC, and Pizzarotti (see Prior Order at 2), and are now asserted by Bilaver. The Court similarly rejects Goldbrecht's current sole proximate cause argument citing plaintiff's act of leaning the closed ladder against a wall (see Howard v Turner Const. Co., 134 AD3d at 524).

Therefore, plaintiff is granted partial summary judgment as to liability on his Labor Law 240 (1) claim against WC, Pizzarotti, and Goldbrecht.

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]).

Plaintiff again opposes dismissal of his Labor Law § 241(6) claim as predicated on a violation of Industrial Code [12 NYCRR] §§ 23-1.16 and 23-1.21 (b) (4) (iv). For the reasons stated by Justice Suarez in the Prior Order, plaintiff has raised an issue of fact as to whether those predicates were violated. Therefore, Bilaver's motion for summary judgment dismissing the Labor Law § 241 (6) claim is denied.

Breach of Contract and Contribution Claims

WC and Pizzarotti do not oppose Bilaver's motion seeking dismissal of their third-party claims for breach of contract for failure to procure insurance and contribution. Therefore, those third-party claims 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]).

Contractual Indemnification

Bilaver moves for summary judgment dismissing the third-party claim for contractual indemnification. WC and Pizzarotti oppose.

"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 [*5]quotation marks and citation omitted]).

Here, the broad indemnification provision in the contract between Bilaver and Goldbrecht was triggered by plaintiff's accident in the course of Bilaver's work (see Asian v Flintlock Constr. Servs., LLC, 225 AD3d 462, 463 [1st Dept 2024]; Amante v Pavarini McGovern, Inc., 127 AD3d 516, 517 [1st Dept 2015]; Bilaver Contract § 15.1). The subject indemnification provision also does not run afoul of General Obligations Law § 5-322.1 as it sufficiently contains the savings language "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, 463-464 [1st Dept 2014]; Dutton v Pankow Bldrs., 296 AD2d 321, 322 [1st Dept 2002]).

While Bilaver argues that there is an issue of fact as to the negligence of the owner and general contractor, the Court previously dismissed plaintiff's Labor Law § 200 and negligence claims, and the record presents no basis to grant Bilaver summary judgment on the third-party contractual indemnification claim (see Quiroz v New York Presbyt./Columbia Univ. Med. Ctr., 202 AD3d 555, 556-557 [1st Dept 2022]; Travalja v 135 W. 52nd St. Owner LLC, 232 AD3d 503, 505 [1st Dept 2024]). Therefore, Bilaver's motion for summary judgment dismissing the third-party claim for contractual indemnification is denied.

Common Law Indemnification

Bilaver moves for summary judgment dismissing the third-party claim for common law indemnification. WC and Pizzarotti oppose.

"To be entitled to common-law indemnification, a party must show (1) that it has been held vicariously liable without proof of any negligence or actual supervision on its part; and (2) that the proposed indemnitor was either negligent or exercised actual supervision or control over the injury-producing work" (Naughton v City of New York, 94 AD3d 1, 10 [1st Dept 2012]).

There is an issue of fact as to Bilaver's negligence, which precludes dismissal of WC and Pizzarotti's third-party claim for common law indemnification.

Accordingly, it is hereby

ORDERED that plaintiff's motion for partial summary judgment as to liability on his Labor Law § 240 (1) claim against WC, Pizzarotti, and Goldbrecht is GRANTED (mot. seq. 002); and it is further

ORDERED that the motion by third-party defendant Bilaver Construction & Management, Inc. motion for summary judgment is GRANTED IN PART to the extent the third-party claims for contribution and breach of contract are DISMISSED, and the remainder of the motion is DENIED (mot. seq. 003); and it is further

ORDERED that the cross-motion by defendant Goldbrecht Inc. for summary judgment on its claims against third-party defendant Bilaver Construction & Management, Inc. is DENIED as untimely; 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 12/29/2025

HON. ASHLEE CRAWFORD