Portillos v Moxie Prop. Solutions LLC

Supreme Court, Albany County

Decided on March 17, 2026

Index No. 901706-23

Adam W. Silverman, J.

The critical facts of this case are uncontested. Plaintiff fell from a roof at work while in the process of installing a safety device. No other safety device was currently in place. Plaintiff commenced an action against the owner of the property and the general contractor pursuant to the Labor Law and now moves for partial summary judgment on the issue of liability.

In adopting Labor Law § 240, the Legislature established what the Court of Appeals has referred to as "extraordinary protections" that are intended to safeguard workers by imposing the responsibility for safety practices on those who are best situated to bear that responsibility. The law does not require a plaintiff to act in a manner that is completely free from negligence. Instead, it applies a strict liability rule that precludes comparative fault as a defense. While a limited exception exists in situations where a plaintiff, without good reason, chooses not to use safety equipment and is thus the sole proximate cause of the injury, it does not apply here.

Plaintiff in this case was injured while in the process of installing the safety equipment and there is no evidence that plaintiff refused to use safety equipment. As explained below, at worst, plaintiff was negligent in his choice to proceed onto the roof while it was wet with morning dew or to stand when his coworker said he was going to fall. Binding precedent establishes that these possible mistakes alone are insufficient to raise a question of fact denying partial summary judgment on liability. Based on this determination, the alternative grounds for plaintiff's motion are rendered academic and the case should proceed to a trial on the issue of damages. As also explained below, the motion for summary judgment in the third-party action is untimely and, as no good cause has been provided, must therefore be denied.

I. Facts and Procedural History

On November 21, 2022, plaintiff was injured when he fell from the roof of a building located in the City of Syracuse, Ononadoga County. Plaintiff worked as a foreman for third-party defendant JFB Services. JFB was working as a roofing subcontractor for defendant Erie Construction Mid-West, LLC, the general contractor. Erie had contracted with defendant Moxie Property Solutions LLC, the property owner, to perform certain tasks including, as relevant here, roof work.

JFB had no formal safety training for its employees. At the time, JFB did not require [*2]employees to undergo OSHA training (NY St Cts Elec Filing [NYSCEF] Doc No. 48, Bonilla-Calix dep, at 24). Jose Fernando Bonilla-Calix, owner of JFB, answered "no" at his deposition when asked if he "provided the JFB workers with any safety training" (NYSCEF Doc No. 48, Bonilla-Calix dep, at 37). Bonilla-Calix explained that at the warehouse he told employees how "they had to use the harness, the helmet, and the shoes they had to use" (id. at 38). When asked if this was "part of a formal safety training," Bonilla-Calix explained that it was part of describing how they "had to carry out the job safely -- safely in each house" (id.). To use the harness, employees would attach from their harness by rope to an anchor point on the beam at the top roof (id. at 72-73).

Plaintiff's deposition is the only evidence based on firsthand knowledge of the accident submitted by any party on this motion. The critical facts are undisputed. At the time of the fall, there was no fall protection system yet in place. Plaintiff had the safety rope provided by JFB, a belt he purchased, and the base used to set up the fall protection when he went up on the roof (NYSCEF Doc No. 38, Plaintiff dep, at 48). There were no safety nets in use (NYSCEF Doc No. 48, Bonilla-Calix dep, at 80). To set up fall protection, plaintiff was taught by JFB to identify a wooden beam at the apex of the roof of the house to install a metal base to which the rope and harness would attach. Plaintiff testified that he was not taught any ways to set up fall protection on a roof while looking for that wooden beam (NYSCEF Doc No. 38, Plaintiff dep, at 111).

The roof was "steeper than average",FN1 and plaintiff testified that there was morning dew on the roof (NYSCEF Doc No. 38, Plaintiff dep, at 47, 122, 124), though parties quibble whether it was frost, or dew, or slippery. Plaintiff testified he was on the roof for "between 10 minutes or 20 minutes," removed several shingles while attempting to locate where the beam could be, but had not yet found it (NYSCEF Doc No. 38, Plaintiff dep, at 47, 54, 120). When plaintiff was at the top of the roof, about to begin tying up the rope at the crown of the roof, a coworker said he was going to fall and needed to pass him (NYSCEF Doc No. 38, Plaintiff dep, at 55). Plaintiff stood for him to pass, slipped, fell on his chest, and then fell off of the roof. Plaintiff was not tied off at the time of the fall because the anchor and tie off point had yet to be installed.

On April 18, 2023, JFB was issued a citation from OSHA stating "[o]n or about November 21, 2022, an employee engaged in residential roofing activities on a 2-story house with an approximate 10/12 pitch was not protected by guardrail systems, safety net systems, or personal fall arrest systems" (NYSCEF Doc No. 49).

On February 21, 2023, plaintiff commenced this action by filing a summons and complaint. Defendant Moxie Property Solutions LLC, the property owner, and Defendant Erie Construction Mid-West, LLC, the general contractor, joined issue on May 24, 2023 and June 5, 2023, respectively. On October 2, 2023, Erie filed a third-party complaint against JFB. JFB joined issue by answer on November 27, 2023. Following discovery, plaintiff filed the Note of [*3]Issue on July 21, 2025. On October 14, 2025, Moxie submitted an amended answer.

Two motions are pending before the court. On October 15, 2025, plaintiff filed a motion for partial summary judgment on liability, pursuant to CPLR 3212 under Labor Law § 240 (1) and, alternatively, under Labor Law § 241 (6), as well as for an immediate trial on damages. Defendants oppose the motion.FN2 On January 7, 2026, Erie "cross moved" for summary judgment against third-party defendant JFB, which JFB opposes.

II. The "Cross-Motion"

As a preliminary matter, the court first addresses the timeliness of Erie's "cross-motion" against JFB. Erie asserts that it is entitled to indemnification from JFB based on the contract between the two entities. Erie further asserts a breach of contract claim against JFB based on an alleged failure to obtain certain required insurance coverage. JFB objects, noting that that the Note of Issue was filed July 21, 2025 and dispositive motions were to be filed within 90 days of the filing of the Note of Issue, pursuant to a prior Order (Corcoran, J.). JFB notes that "[t]he deadline to file a dispositive motion therefore was October 21, 2025."

Relying on Reutzel v Hunter Yes, Inc., (135 AD3d 1123, 1124 [3d Dept 2016] ["A cross-motion for summary judgment made after the expiration of the deadline for making dispositive motions 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"]), Erie argues that "this Court should consider Erie's cross-motion for summary judgment on the merits because it has moved on the same issues as Plaintiff — arguing that Erie is free from any active negligence in the happening of the subject incident and subject to only statutory or vicarious liability and therefore, the indemnification provisions in the contract between Erie and JFB have been triggered in favor of Erie." Erie further points to dicta in Kershaw v Hosp. for Special Surgery, which states "this Court has held, on many occasions, that an untimely but correctly labeled cross-motion may be considered at least as to the issues that are the same in both it and the motion, without needing to show good cause" (114 AD3d 75, 88 [1st Dept 2013]). The court is persuaded by neither case.

Unlike in this case, in Reutzel v Hunter Yes, Inc., the defendant was cross-moving in response to the third-party defendant's "timely motion for summary judgment dismissing the third-party complaint," which clearly invoked "the applicability and enforceability of the indemnification clause at issue" (135 AD3d at 1124). Kershaw is even more unfavorable to Erie's argument. Kershaw holds that "[a]llowing movants to file untimely, mislabeled 'cross-motions' without good cause shown for the delay affords them an unfair and improper advantage" (114 AD3d at 88). Kershaw notes that the Court of Appeals in Brill v City of New York (2 NY3d 648 [2004]) addressed the "recurring scenario" of litigants filing late summary judgment motions, in effect "ignor[ing] statutory law, disrupt[ing] trial calendars, and undermin[ing] the goals of orderliness and efficiency in state court practice" (2 NY3d at 650). Kershaw restates Brill's holding CPLR 3212 (a) requires that motions for summary judgment must be brought within the set timeframe to rein in these late motions and prevent this undermining (see 114 AD3d at 83). Kershaw further notes that the Court of Appeals has "drawn a bright line" and "where a motion is untimely, the movant must show good cause for the delay, [*4]otherwise the late motion will not be addressed" (114 AD3d at 83).

In Brill the Court of Appeals indicated that late-filed summary judgment motions are "another example of sloppy practice threatening the integrity of our judicial system" (2 NY3d at 653 [emphasis added]), and restated its earlier holding that, "'[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity'" (2 NY3d at 652-653, quoting Kihl v Pfeffer, 94 NY2d 118, 123 [1999]; see generallyGibbs v St. Barnabas Hosp., 16 NY3d 74, 81 [2010] [holding the failure to comply with deadlines impairs the efficient functioning of the courts and the adjudication of claims, and "chronic noncompliance with deadlines breeds disrespect for the dictates of the Civil Practice Law and Rules and a culture in which cases can linger for years without resolution"]; Andrea v Arnone, Hedin, Casker, Kennedy & Drake,Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 NY3d 514 [2005] [dismissal after ongoing failure to comply with discovery orders]).

The summary judgment deadline is a strict requirement that must "be taken seriously by the parties" (Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726 [2004]). The burden is on the late filing party to "demonstrate good cause for the delay — that is, a satisfactory explanation for the motion's untimeliness" (Wilmington Sav. Fund Socy., FSB v McKenna, 172 AD3d 1566, 1567 [3d Dept 2019] [internal quotation marks, brackets and citation omitted]; accord Lindgren v Anoia, 224 AD3d 1105, 1108 [3d Dept 2024]). Here, Erie "did not, as required, seek leave of court prior to filing its late motion" (Wilmington Sav. Fund Socy., FSB v McKenna, 172 AD3d at 1567, citing CPLR 3212[a]; Brill v City of New York, 2 NY3d at 652; Harrington v Palmer Mobile Homes, Inc., 71 AD3d 1274, 1275 [3d Dept 2010]).

Erie argues that its motion should be considered a cross-motion. CPLR 2215 provides that "a party may serve upon the moving party a notice of cross-motion." A cross-motion is "merely a motion by any party against the party who made the original motion, made returnable at the same time as the original motion" (Patrick M. Connors, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C2215:1; see CPLR 2215). It is well-settled that "[a] cross-motion is an improper vehicle for seeking affirmative relief from a nonmoving party" (SPAC Advisory Partners LLC v Zapp Electric Vehicles Ltd., 85 Misc 3d 1249 [A] [Sup Ct, New York County 2025, Lebovits, J.] [internal quotation marks and citations omitted]; see Asiedu v Lieberman, 142 AD3d 858, 858 [1st Dept 2016]; Hernandez v Buena Vida Corp., 82 Misc 3d 1242 [A] [Sup Ct, Kings County 2024, Melendez, J.] [holding a cross-motion is an improper vehicle for seeking affirmative relief from a nonmoving party denying an improper cross-motion that attempted to bypass the timelines of CPLR 3212 (a)]). A technical defect of this nature may be disregarded where there is no prejudice and the opposing parties have had ample opportunity to be heard on the merits of the relief sought (see CPLR 2001; Daramboukas v Samlidis, 84 AD3d 719, 721 [2d Dept 2011]). However, a defendant's purported cross-motion should be denied as "an improper vehicle for seeking relief from a nonmoving party" when the motion itself is untimely and defendant fails to offer good cause for its late filing (Hennessey-Diaz v City of New York, 146 AD3d 419, 420 [1st Dept 2017]). "Allowing movants to file untimely, mislabeled 'cross-motions' without good cause shown for the delay affords them an unfair and improper advantage," and "the Brill rule is ignored" (Kershaw v Hospital for Special Surgery, 114 AD3d at 88). As such, the mislabeled "cross-motion" at issue here cannot be deemed merely a technical defect.

Erie alternatively asserts that, even if its "cross-motion" is untimely or improper, the court may search the record. "If it shall appear that any party other than the moving party is [*5]entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion" (CPLR 3212[b]). It is well settled, as stated in Dunham v Hilco Const. Co., Inc., that a court's authority to

"search the record and afford a nonmoving party summary relief is not, however, boundless. Recognizing that a motion for summary judgment must be addressed to one or more specific causes of action or defenses, the Appellate Divisions have uniformly held that a court may search the record and grant summary judgment in favor of a nonmoving party only with respect to a cause of action or issue that is the subject of the motions before the court. The need for such a limitation is obvious. Apart from considerations of simple fairness, allowing a summary judgment motion by any party to bring up for review every claim and defense asserted by every other party would be tantamount to shifting the well-accepted burden of proof on summary judgment motions"

(89 NY2d 425, 429-430 [1996] [internal quotation marks and citations omitted]; accord Perkins v Kapsokefalos, 57 AD3d 1189, 1191 [3d Dept 2008]; see Finch v Erie Ins. Co., 211 AD3d 1152, 1155 [3d Dept 2022] [holding authority to search the record and grant summary judgment to a nonmoving party is limited to claims or issues raised and addressed by the moving party]; WFR Assoc. v Mem. Hosp., 14 AD3d 840, 840 [3d Dept 2005]). Here, the contract between Erie and JFB that required JFB to procure insurance on behalf of JFB as an additional insured, in connection with JFB's work at the subject jobsite, including general liability insurance with minimum coverage of $1,000,000 per occurrence and $2,000,000 in the aggregate, and an umbrella policy with $1,000,000 million in coverage was not raised by plaintiff in their motion. While Erie is certainly correct in arguing that the subject accident connects to the question of the indemnification provision in the contract between Erie and JFB, invoking searching the record requires more than merely a common nucleus of facts or the rule limiting it to specific causes of action or defenses would be meaningless. Not only would this stretch the logical limits of searching the record, it would operate with the same effect as the court cautioned against in Kershaw v Hospital for Special Surgery — allowing the chronic noncompliance with deadlines that breeds disrespect for the dictates of the Civil Practice Law and Rules and a culture in which cases can linger for years without resolution (see 114 AD3d at 88). Regardless of the efficiency of addressing the merits on the motion, the Court of Appeals has made it clear that litigants are harmed by even the unintentional failure of counsel to abide by deadlines. There is already a relatively low hurdle for a party seeking an extension of time to clear — they merely need to show good cause. Where, as here, a party has made no attempt to show good cause, the court cannot give that litigant what the Appellate Division has determined to be an "unfair and improper advantage."

For all the aforementioned reasons, Erie's motion for summary judgment must be denied as untimely.

III. Standard for Summary Judgment

Summary judgment is a drastic remedy which will be granted only when the moving party has established prima facie entitlement to judgment as a matter of law by presenting competent evidence that there is no doubt as to the absence of a triable issue of fact (seeAlvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; McDay v State, 138 AD3d 1359, 1359 [3d Dept 2016]). "The court's function on a motion for summary judgment is issue finding not issue determination" (Gadani v Dormitory Auth. of State of NY, 43 AD3d 1218, 1219 [3d Dept 2007]; [*6]seeLacasse v Sorbello, 121 AD3d 1241, 1242 [3d Dept 2014]), and this Court "must view the evidence in the light most favorable to the nonmoving party and accord such party the benefit of every reasonable inference that can be drawn therefrom" (Aretakis v Cole's Collision, 165 AD3d 1458, 1459 [3d Dept 2018]; seeHealthcare Professionals Ins. Co. v Parentis, 165 AD3d 1558, 1565 [3d Dept 2018]).

The burden then shifts to the nonmoving party to establish by admissible proof, the existence of genuine issues of fact (seeZuckerman v City of New York, 49 NY2d 557, 562 [1980]; Davis v EAB-TAB Enters., 166 AD3d 1449, 1450 [3d Dept 2018]). However, in opposing a motion for summary judgment, the nonmoving party "must produce evidentiary proof in admissible form . . . or must demonstrate acceptable excuse for his [or her] failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v City of New York, 49 NY2d at 562; accordMiller v Lu-Whitney, 61 AD3d 1043, 1047 [3d Dept 2009]; seeBanco Popular North America v Victory Taxi Management, Inc., 1 NY3d 381, 383 [2004] ["[A]verments merely stating conclusions, of fact or of law, are insufficient" to "defeat summary judgment"]).

IV. Labor Law § 240 (1)

Labor Law § 240 (1) states that "[a]ll contractors and owners and their agents . . . in the . . . repairing, [or] altering . . . of a building or structure shall furnish or erect, or cause to be furnished or erected . . . devices which shall be so constructed, placed and operated as to give proper protection to a person so employed." "Labor Law § 240 (1) imposes a nondelegable duty and absolute liability upon owners and contractors for failing to provide safety devices necessary for workers subjected to elevation-related risks in circumstances specified by the statute" (Soto v J. Crew Inc., 21 NY3d 562, 566 [2013], citing Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]; seeSalzer v Benderson Dev. Co., LLC, 130 AD3d 1226, 1227 [3d Dept 2015]; Miranda v Norstar Bldg. Corp., 79 AD3d 42, 46 [3d Dept 2010]). To recover, the plaintiff must have suffered an injury as "the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]; accord Scribner v State of New York, 130 AD3d 1207, 1208 [3d Dept 2015]). Notably, "the fact that plaintiff was injured while working above ground does not necessarily mean that the injury resulted from an elevation-related risk contemplated by" Labor Law § 240 (1) (Salzer v Benderson Dev. Co., LLC, 130 AD3d at 1227-1228).

Therefore, to prevail upon a motion for summary judgment, "plaintiff [is] required to establish that [adequate] safety devices were not provided and that his [or her] injuries were proximately caused by this violation of the Labor Law" (Burhmaster v CRM Rental Mgt., Inc., 166 AD3d 1130, 1131-1132 [3d Dept 2018]; seeCahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39 [2004]; Portes v New York State Thruway Auth., 112 AD3d 1049, 1050 [3d Dept 2013] ["A prima facie case for summary judgment of Labor Law § 240 (1) liability is established when a claimant produces evidence that the statute was violated and that the violation proximately caused his or her injury"], lv dismissed 22 NY3d 1167 [2014]).

A defendant may "raise a factual issue by presenting evidence that a safety device furnished was adequate and properly placed and that the conduct of the plaintiff may be the sole proximate cause of his or her injuries" (Burhmaster v CRM Rental Mgt., Inc., 166 AD3d at 1132-1133 [internal quotation marks, brackets and citation omitted]; see Ball v Cascade Tissue Group-[*7]New York, Inc., 36 AD3d 1187, 1188 [3d Dept 2007]). "A plaintiff is the sole proximate cause of his or her injuries where it is shown that he or she had adequate safety devices available; that he or she knew both that they were available and that he or she was expected to use them; that he or she chose for no good reason not to do so; and that had he or she not made that choice he or she would not have been injured" (Griffin v AVA Realty Ithaca, LLC, 150 AD3d 1462, 1465 [3d Dept 2017] [internal quotation marks, brackets and citation omitted]; seeGeorgia v Urbanski, 84 AD3d 1569, 1570 [3d Dept 2011]).

However, "comparative fault . . . is not a defense under the statute" (Salzer v Benderson Dev. Co., LLC, 130 AD3d at 1228; see Williams v Town of Pittstown, 100 AD3d 1250, 1251-1252 [3d Dept 2012]; McGill v Qudsi, 91 AD3d 1241, 1243-1244 [3d Dept 2012], appeal dismissed 19 NY3d 1013 [2012]). "[T]he Labor Law does not require a plaintiff to have acted in a manner that is completely free from negligence" (Hernandez v Bethel United Methodist Church of NY, 49 AD3d 251, 253 [1st Dept 2008]). "Under Labor Law § 240 (1) it is conceptually impossible for a statutory violation (which serves as a proximate cause for a plaintiff's injury) to occupy the same ground as a plaintiff's sole proximate cause for the injury. Thus, if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it. Conversely, if the plaintiff is solely to blame for the injury, it necessarily means that there has been no statutory violation" (Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d 280, 290 [2003]; seeDeRose v Bloomingdale's Inc., 120 AD3d 41, 45 [1st Dept 2014] ["the sole proximate cause defense does not apply where a plaintiff was not provided with an adequate safety device as required by the Labor Law"]).

Further, "[a]s a matter of law, a safety harness is inadequate to provide proper protection against falls from an elevated worksite in the absence of an appropriate anchorage point or place to 'tie off'" (Bruno v Hepworth, 2019 NY Slip Op 33946 [U], 5 [Sup Ct, Orange County 2019, Bartlett, J.], citing Gomes v Pearson Capital Partners LLC, 159 AD3d 480, 481 [1st Dept 2018]; Anderson v MSG Holdings, LP, 146 AD3d 401, 402-403 [1st Dept 2017], lv dismissed 29 NY3d 1100 [2017]; Hoffman v SJP TS, LLC, 111 AD3d 467, 467 [1st Dept 2013]; Yetrano v J Kokolakis Contracting, Inc., 100 AD3d 984, 985-986 [2d Dept 2012]; Phillip v 525 East 80th Street Condominium, 93 AD3d 578, 579 [1st Dept 2012]; Cordeiro v TS Midtown Holdings, LLC, 87 AD3d 904, 905 [1st Dept 2011]; Miglionico v Bovis Lend Lease, Inc., 47 AD3d 561, 564-565 [1st Dept 2008]; Kielar v Metropolitan Museum of Art, 55 AD3d 456, 456[1st Dept 2008]; seeWilson v AC 320 Hotel Partners LLC, 238 AD3d 581, 582 [1st Dept 2025] [summary judgment affirmed as there were no anchor points to tie off a harness or safety railing]).

"The grant of summary judgment in favor of [a plaintiff] on their Labor Law § 240 (1) claim renders the issue of liability on their Labor Law § 241(6) claim academic" (Moises-Ortiz v FDB Acquisition LLC, 242 AD3d 550, 551—552 [1st Dept 2025]; see Yocum v United States Tennis Assn. Inc., 208 AD3d 1124, 1125 [1st Dept 2022]).

V. Discussion

Plaintiff established prima facie that while subjected to an elevation-related risk, he was injured due to defendants' failure to provide him with proper fall protection, namely, an appropriate place to which to attach his harness. Plaintiff submits his own deposition testimony as well as the deposition testimony of Jose Fernando Bonilla-Calix, his employer and owner of JFB. Here, the injured plaintiff's deposition testimony established that he had not been provided with appropriate safety devices that could have prevented his fall and that the lack of such devices was the proximate cause of the accident. Specifically, to perform his assigned task, he [*8]was required to first reach the apex of the roof, locate the beam, and then attach the anchor. Only then could he secure himself to the tie-off. Thus, at the time of the accident, plaintiff's uncontradicted testimony that he was unable to secure himself to the tie-off before the fall meets his prima facie burden (see Yocum v United States Tennis Assn. Inc., 208 AD3d 1124. 1124 [1st Dept 2022] [holding plaintiff made a prima facie showing of entitlement to summary judgment on the Labor Law § 240 (1) claim by submitting testimony that there was no appropriate place to tie off on the sloped roof from which the injured plaintiff fell]; Pearl v Sam Greco Const., Inc., 31 AD3d 996, 998 [3d Dept 2006], lv denied 11 NY3d 710 [2008]).

Defendants argue that plaintiff is not entitled to the protection of Labor Law § 240 (1) because he was the sole proximate cause of his injury. They contend that plaintiff was instructed not to stand on the roof. Critically, "an instruction . . . to avoid . . . engaging in unsafe practices is not itself a 'safety device'" (Travalja v 135 W. 52nd St. Owner LLC, 232 AD3d 503, 504 [1st Dept 2024] [holding plaintiff met prima facie burden by showing the lack of anchor points for safety harnesses or other fall protection equipment and defendants failed to raise an issue of fact in arguing plaintiff failed to heed warnings]; seeVerdugo v Fox Bldg. Group, Inc., 218 AD3d 1179 [4th Dept 2023] [holding it "is well settled that the failure to follow an instruction by an employer or owner to avoid unsafe practices does not constitute a refusal to use available, safe and appropriate equipment"]; Schutt v Bookhagen, 186 AD3d 1027, 1029 [4th Dept 2020] [holding that the "mere failure by plaintiff to follow safety instructions" does not render plaintiff the sole proximate cause of his injuries where the "evidence presented by defendants established only that plaintiff possibly failed to follow safety instructions, not that he outright refused to use available, safe and appropriate equipment"], dismissing appeal 36 NY3d 939 [2020]; compare Burgos v Darden Restaurants, Inc., 234 AD3d 1037, 1040 [3d Dept 2025] [holding a question of fact existed where plaintiff actively ignored supervisor instructions and equipment was provided arguably sufficient to safely complete the job]). Plaintiff's uncontested testimony states that he stood to allow a coworker to move when the coworker stated he was going to fall (NYSCEF Doc No. 38, Plaintiff dep, at 55 ["Well, when Carlos came up, he was carrying a tent on his shoulder; and when he got up onto the roof, he was right between the two of us in the middle of the roof. And when he got there, he told me, move, because I'm going to fall, and he wanted to pass by there. And that's when I moved for him to pass, and that's when I slipped."]). While plaintiff's decision arguably constitutes comparative negligence, this does not raise a question of fact under Labor Law § 240 as defendants "did not proffer any evidence of the availability of anchor points, lifelines, or rope grabs at the time and in the area where [plaintiff] fell" (Travalja v 135 W. 52nd St. Owner LLC, 232 AD3d at 504).

Defendants also contend that a question of fact exists as to whether plaintiff was the sole proximate cause of his injury because he choose to work on a slippery roof (NYSCEF Doc No. 48, p 2 ["Plaintiff's own careless actions in standing on an admittedly slippery roof prior to installing a fall protection system are the sole proximate cause of the subject incident"]). Controlling precedent of the Appellate Division, Third Department rejects this proposition. Plaintiff testified that, while it looked slippery when he was coming up to the roof, when he and his co-workers reached the roof, he did not feel the roof was slippery although he observed "some wetness of early morning dew" (NYSCEF Doc No. 38, Plaintiff dep, at 123). David Bender, installation manager for Erie, testified that "[t]here was no precipitation or anything. It was a clear, cold morning" (NYSCEF Doc No. 43, Plaintiff dep, at 7). In Pearl v Sam Greco Const., Inc., the court held that even if the plaintiff in that case, who was acting in his capacity as [*9]job supervisor, made the decision to store safety equipment on a roof with frost and ice, "the owners and general contractor are not relieved of liability under the statute since plaintiff's decision simply demonstrates comparative negligence on his part" (31 AD3d at 998; compare Sutherland v Tutor Perini Bldg. Corp., 207 AD3d 159, 161 [1st Dept 2022] [holding a question of fact existed where plaintiff was a supervisor, it "was continuously raining," the rain "immediately caused the plywood to become slippery," and testimony in the record demonstrated plaintiff had discretion to decline to work on the roof if he believed it was unsafe]).

Finally, defendants argue that there exists a triable issue of fact as to whether plaintiff's safety devices failed to perform their functions. The Appellate Division, Third Department has addressed this argument as well. In Desrosiers v Barry, Bette & Led Duke, Inc., the court held that the inability to anchor or affix a safety device and thus make it operative was sufficient to impose liability upon the owner and contractor and the mere availability of any particular safety device will not provide a shield from absolute liability if that device alone is insufficient to provide safety without the use of additional precautionary devices or measures (see 189 AD2d 947, 948 [3d Dept 1993]). This is consistent with a long line of cases that have specifically held that "[a]s a matter of law, a safety harness is inadequate to provide proper protection against falls from an elevated worksite in the absence of an appropriate anchorage point or place to 'tie off'" (Bruno v Hepworth, 2019 NY Slip Op 33946 [U], 5; seeGomes v Pearson Capital Partners LLC, 159 AD3d at 481; Anderson v MSG Holdings, LP, 146 AD3d at 402-403; Hoffman v SJP TS, LLC, 111 AD3d at 467; Yetrano v J Kokolakis Contracting, Inc., 100 AD3d at 985-986; Phillip v 525 East 80th Street Condominium, 93 AD3d at 579; Cordeiro v TS Midtown Holdings, LLC, 87 AD3d at 905; Miglionico v Bovis Lend Lease, Inc., 47 AD3d at 564-565; Kielar v Metropolitan Museum of Art, 55 AD3d at 456). As one court commented, "[i]t would be illogical for the Legislature to have enacted a statute affirmatively requiring safe scaffolding and other devices for the protection of workers while denying similar protection to the very same (and other) workers when they erect and demolish such devices" (Alderman v State of New York, 139 Misc 2d 510, 515 [Ct Cl 1988, Margolis, J.]). Similar to that case, here plaintiff's "undisputed statements [make clear] that there were no safety devices present to prevent his falling . . . [including] safety nets or lifelines" (id. at 512). Liability "does apply where the device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person," not just where the device is defective (Kyle v City of New York, 268 AD2d 192, 198 [1st Dept 2000] [internal quotation marks and citations omitted], lv denied 97 NY2d 608 [2002]). Were a court to find that providing a functional unattached anchor and rope with no way to safely use it sufficient, such a ruling would defeat the purpose of the statute.

VI. Conclusion

The uncontested facts of the case establish that plaintiff was working from a height and was injured by a harm directly flowing from the application of the force of gravity. Defendants have presented no evidence that plaintiff refused to use safety equipment, nor was otherwise the sole proximate cause of his own injury. Therefore, plaintiff is entitled to summary judgment on the issue of liability.

Accordingly, it is

ORDERED, that plaintiff's Motion for summary judgment on liability against defendants Moxie Property Solutions LLC and Erie Construction Mid-West, LLC under Labor Law § 240 [*10](1) is granted; and it is further

ORDERED, that defendant/third-party plaintiff Erie Construction Mid-West, LLC's Cross-Motion for summary judgment against third-party defendant JFB Services LLC for contractual indemnification, contribution, common law indemnification, and breach of contract for failure to procure insurance is denied as untimely.

The court has uploaded the original Decision/Order to the case record in this matter as maintained on the NYSCEF website whereupon it is to be filed and entered by the Office of the Albany County Clerk.

Counsel for the plaintiff is not relieved from the applicable provisions of CPLR 2220 and 202.5b (h) (2) of the Uniform Rules of Supreme and County Courts insofar as it relates to service and notice of entry of the filed document upon all other parties to the action/proceeding, whether accomplished by mailing or electronic means, whichever may be appropriate dependent upon the filing status of the party.

SO ORDERED AND ADJUDGED

ENTER.

Dated: March 17, 2026

Albany, New York

HON. ADAM W. SILVERMAN

Acting Justice of the Supreme Court