Mora v 3428 Bedford LLC

Supreme Court, Kings County

Decided on April 6, 2026

Index No. 520191/2023

Devin P. Cohen, J.

As required by CPLR 2219 (a), the following e-filed documents, listed by NYSCEF document numbers, were considered on this motion: NYSCEF 62—96, 100.

Upon the foregoing papers, plaintiff's motion for summary judgment on his Labor Law § 240 (1) claim (Seq. 003) and defendants' motion for summary judgment (Seq. 004) are decided as follows:

Procedural Posture and Factual Background

Plaintiff commenced this action to recover for damages he claims to have sustained on May 22, 2023, while working at a construction site located at 3420 Bedford Avenue, Brooklyn, NY (the premises). The following is undisputed: 3428 Bedford LLC (Bedford) owned the premises and M.N.C. General Contractors Corp. (MNC) was the general contractor. MNC sub-contracted with third-party defendant Terranova & Son Interiors, Inc. (Terranova) to perform [*2]work at the premises. Terranova employed the plaintiff.

The plaintiff testified as follows: On the date of the incident, plaintiff was trimming sheetrock on the ceiling of the basement at the premises (Mora EBT at 28, 31). Plaintiff was using a fiberglass six-foot A-frame ladder and cutting with a sheetrock knife (id. at 28, 32). While standing on the ladder, the ladder shook, and plaintiff fell to the ground (id. at 29). After falling, the plaintiff observed that the "arm braces in between that hold it together" were damaged (id.). Scaffolds were present on the site, but they were being used by plaintiff's co-workers (id. at 45). Plaintiff did not instruct his co-workers to use the scaffolds, and did not give any instructions about how they should perform their work (id.).

Kemon Fortune testified on behalf of MNC. Mr. Fortune testified that the ladder plaintiff was given was too short to be working on a ten foot ceiling, which was "probably the reason why the ladder slipped from underneath him" (Fortune EBT at 41). Mr. Fortune testified that he observed the ladder after the accident and the spreader was "twisted pretty badly" (id. at 32). Neither plaintiff nor Mr. Fortune knew whether the spreader was twisted prior to the incident.

Analysis

On a motion for summary judgment, the moving party bears the initial burden of making a prima facie showing that there are no triable issues of material fact (Giuffrida v Citibank, 100 NY2d 72, 81 [2003]). Once a prima facie showing has been established, the burden shifts to the non-moving party to rebut the movant's showing such that a trial of the action is required (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]).

Labor Law § 240 (1)

Liability under Labor Law § 240 (1) is "absolute" where the failure of a safety device enumerated by the statute (e.g. a ladder) is a proximate cause of the plaintiff's accident (Blake v Neighborhood Hous. Services of New York City, Inc., 1 NY3d 280, 287 [2003] [citing Haimes v. New York Tel. Co., 46 NY2d 132, 136 (1978) and Ross v Curtis—Palmer Hydro—Elec. Co., 81 NY2d 494, 500 (1993)]).

Plaintiff's testimony that he was working on an A-frame ladder which shook, causing plaintiff to fall and sustain harm, is sufficient to make out his prima facie entitlement to summary judgment on his Labor Law § 240 (1) claim (see Pai v Nelson Housing Dev't Fund Corp., 232 AD3d 822, 825 [2d Dept 2024]).

In opposition, defendants' arguments that plaintiff was the individual "best situated to bear the responsibility for safety practices" directly contradicts the legislative intent of Labor Law § 240 (1). This argument is unsupported by any caselaw known to this court, and is directly contradicted by binding precedent (see Morales v 88th Avenue Owner, LLC, 244 AD3d 1098 [2d Dept 2025] [foreman granted summary judgment on Labor Law § 240 claim because duty lay with the owner and contractor]; see also Robinson v National Grid Energy Management, LLC, 150 AD3d 910 [2d Dept 2017] [sole proximate cause defense could not be predicated on fact plaintiff was the foreman; Labor Law claims dismissed on other grounds]). The statute is intended to "[protect] workers by placing ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs"—on owners and contractors (Zimmer v Chemung County Performing Arts, Inc., 65 NY2d 513, 520 [1985]). The argument that plaintiff, a worker, somehow incurred a statutory duty or became a "statutory agent" of his employer because the owner, general contractor, and plaintiff's supervisor were not present on-site is untenable. If accepted, that argument would tacitly grant parties the legislature has charged with a non-delegable duty permission to evade that duty simply by abandoning [*3]responsibility for the site and leaving workers to fend for themselves. Ironically, the policy proposed by defendants would also, if applied consistently, render every individual member of corporate defendants present on site individually liable as statutory agents of their employers. Neither outcome could possibly be the intent of the legislature.

Bedford also argues that plaintiff's claims are precluded by the homeowner's exemption to liability under the Labor Law. Although, "[t]he fact that title to an otherwise qualifying one- or two-family dwelling is held by a corporation rather than an individual homeowner does not, in and of itself, preclude application of the exemption," the defendant still must show that the dwelling qualifies (Assevero v Hamilton & Church Properties, LLC, 131 AD3d 553, 556 [2d Dept 2015]). Bedford was supposed to be deposed on April 29, 2025, but the deposition was postponed at Bedford's request via email on April 24, 2025. The record does not indicate that the deposition was ever rescheduled. Despite not appearing for a deposition, Bedford still moved for summary judgment and relies on an affidavit from Ralph Herzka. Mr. Herzka claims that he is "a manager" of Bedford (Herzka aff. at ¶ 4)—he does not specify whether there are other employees or members, although the phrase "a manager" suggests that there are. Mr. Herzka claims that "the home was being constructed for use as my family's primary residence" (id. at ¶ 5), but does not identify the members of his family or provide a deed,FN1 certificate of occupancy, or other actual evidence that the premises was a one- or two-family dwelling. Finally, Mr. Herzka claims that "Bedford was the owner of a single-family home, intended as the undersigned's primary residence" (id. at ¶ 11).

Ultimately, Mr. Herzka's self-serving affidavit is insufficient to raise triable issues of fact about the applicability of the homeowner's defense. "As the party claiming the benefit of the exception, the defendant has the burden to show that it applies here (Lombardi v Stout, 80 NY2d 290, 297 [1992]). The LLC is called "3428 Bedford," which alone raises questions about whether the LLC owns property other than 3420 Bedford Avenue, where the incident occurred. Furthermore, Mr. Herzka further fails to explain what his role as a "manager" entailed, and how "managing" does imply direction or control. Absent any supporting evidence, and without any evidence about the corporate composition of Bedford, Bedford's other ownership interests, and whether any relationship exists between Mr. Herzka and Bedford that would convert the premises into a commercial enterprise, Bedford has not met that burden.

Therefore, plaintiff's motion for summary judgment on his Labor Law § 240 (1) claim is granted.

Labor Law § 241 (6) and § 200

The plaintiff does not move and does not oppose defendants' motion on these claims. Therefore, defendants' motion is granted without opposition on plaintiff's Labor Law § 241 (6) and § 200 claim.

Conclusion

Plaintiff's motion for summary judgment on his Labor Law § 240 (1) claim (Seq. 003) is granted.

Defendants' motion for summary judgment (Seq. 004) is granted with respect to plaintiff's Labor Law § 241 (6) and § 200 claims; the motion is otherwise denied.

This constitutes the decision and order of the court.

DATE April 6, 2026

DEVIN P. COHEN

Justice of the Supreme Court