Flores v 1275/1291 Broadway LLC
Annotate this CaseDecided on August 28, 2009
Supreme Court, Bronx County
Pascual Flores and Isaac Monteil, Plaintiff,
against
1275/1291 Broadway LLC and Tishman Interiors Corporation, Defendants.
1275/1291 Broadway LLC and Tishman Interiors Corporation, Third-Party Plaintiff,
against
Seasons Contracting Corp., Third-Party Defendants.
85927/07
Beth J. Schlossman, Esq.
Attorney for Plaintiff
PASCUAL FLORES
26 Court Street
Brooklyn, New York 11242
(718) 522-5000
David A. Shimkin, Esq.
Attorney for Defendants/Third-Party Plaintiffs
1275/1291 BROADWAY LLC
TISHMAN INTERIORS CORPORATION
45 Broadway, 16th Floor
New York, New York 10006
(212) 509-9400
Kenneth Thompson, J.
Defendants/Third-Party Plaintiffs', 1275/1291 BROADWAY LLC and
TISHMAN INTERIORS CORPORATION ("1275/1291-TISHMAN"), motion for an Order
pursuant to CPLR § 3212 granting summary judgment and dismissing Plaintiff's Complaint
is denied as to Plaintiff's Labor Law §§ 240(1) and 241(6) claims, and granted as to
Plaintiff's Labor Law § 200 claim.
Background/Arguments
Plaintiff is suing under Labor Law §§ 240(1), 241(6) and 200 for injuries
allegedly sustained after falling from a 8-10 foot high scaffold after he lost his balance and the
scaffold tipped over under the weight of a piece of air conditioning duct Plaintiff was cutting
with an electrical saw from the ceiling of a structure being demolished.
1275/1291-TISHMAN argues that they are entitled to summary judgment on
Plaintiff's Labor Law § 240(1) claim because (1) the piece of duct was not being [*2]"hoisted or secured" and (2) Plaintiff's act of cutting a piece of duct
that was 66% bigger and heavier than the previous ducts he cut was the sole proximate cause of
the accident. 1275/1291-TISHMAN additionally contends that they are also entitled to summary
judgment on Plaintiff's Labor Law § 241(6) claim because they did not violate a specific
regulation of the Industrial Code. They further assert that they are entitled to summary judgment
on Plaintiff's Labor Law § 200 claim because they did not control the activity bringing
about Plaintiff's injury.
Summary Judgment
The proponent of a summary judgment motion must make a prima facie showing of
entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the
absence of any material issues of fact. Failure to make such prima facie showing requires a
denial of the motion, regardless of the sufficiency of the opposing papers.
Alvarez v. Prospect Hosp., 68 NY2d 320, 324.
Labor Law § 240(1)
All contractors and owners and their agents, except owners of one and two-family
dwellings who contract for but do not direct or control the work, in the erection, demolition,
repairing, altering, painting, cleaning or pointing of a building or structure 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.
Labor Law § 240(1).
"Labor Law § 240(1) was designed to prevent those types of accidents in which
the scaffold, hoist, stay, ladder or other protective 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." Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501. (emphasis in
opinion). "Generally, whether a particular safety device provided proper protection is a question
of fact for the jury." Skalko v. Marshall's Inc., 229 AD2d 569, 570.
1275/1291-TISHMAN's claim that liability under § 240(1) may not attach
because the piece of duct was not being "hoisted or secured" is a disingenuous application of the
statute to the facts at bar. The Court of Appeals, in addition to the above tenet, has made it clear
that § 240(1) applies to "specific gravity-related accidents as falling from a height."
Ross, 81 NY2d at 501. Therefore, the simple fact that the scaffold Plaintiff was standing
on to do his assigned task tipped over, causing him to fall from a height of 8-10 feet, (see
Def. Aff. Supp. at ¶ 13), is prima facie evidence that
1275/1291-TISHMAN violated § 240(1). See Vanriel v. A. Weissman Real Estate,
262 AD2d 56 (holding that "Plaintiff [was] entitled to summary judgment on his Labor Law
§ 240(1) claim, there being no dispute that the scaffold on which he was working did not
prevent [*3]him from falling—the core objective of Labor
Law § 240(1)—preventing [a worker] from falling—and that his injuries were
caused by the fall") (citations omitted); see also Holly v. Cty of Chautauqua, 63 AD3d 1558 (holding that
"Plaintiff[s] met [their] initial burden of establishing that [plaintiff] was not furnished with
appropriate safety devices within the meaning of the statute and that the absence of any such
devices was a proximate cause of his injuries"). Consequently, whether the piece of duct was
being "hoisted or secured" at the time of Plaintiff's fall is of no moment. Thus,
1275/1291-TISHMAN's application for summary judgment regarding Plaintiff's Labor Law
§ 240(1) claim is denied.
Labor Law § 241(6)
All contractors and owners and their agents, except owners of one and two-family
dwellings who contract for but do not direct or control the work, when constructing or
demolishing buildings or doing any excavating in connection therewith, shall comply with the
following requirements: . . . All areas in which construction, excavation or demolition work is
being performed shall be so constructed, shored, equipped, guarded, arranged, operated and
conducted as to provide reasonable and adequate protection and safety to the persons employed
therein or lawfully frequenting such places. The commissioner may make rules to carry into
effect the provisions of this subdivision, and the owners and contractors and their agents for such
work, except owners of one and two-family dwellings who contract for but do not direct or
control the work, shall comply therewith.
Labor Law § 241(6).
"Labor Law § 241(6) protects only those workers engaged in duties connected
to the inherently hazardous work of construction . . . ." Valdivia v. Consol. Resistance Co. of
Am., Inc., 54A.D3d 753, 754. "To prevail under Labor Law § 241(6), the plaintiff is
required to establish a violation of an implementing regulation that sets forth a specific standard
of conduct as opposed to a general reiteration of common-law principles." Collucci v. Equit.
Life Assur. Socy. of US, 218 AD2d 513, 517.
"Except where otherwise specifically provided in this Subpart, all scaffolding shall
be so constructed as to bear four times the maximum weight required to be dependent therefrom
or placed thereon when in use. Such maximum weight shall be construed to mean the sum of
both dead and live loads." 12 NYCRR § 23-5.1(c)(1). "Every scaffold shall be provided
with adequate horizontal and diagonal bracing to prevent any lateral movement." 12 NYCRR
§ 23-5.1(c)(2).
One of 1275/1291-TISHMAN's arguments is that the accident was Plaintiff's own
fault because he cut a piece of duct that was too large and too heavy for him to handle, and that
is why Plaintiff lost his balance and the scaffold tipped over. Defendants have utterly failed,
however, to present any evidence that the scaffold was able to "bear four times" the
weight of that particular piece of duct, or that it had "adequate horizontal and diagonal bracing,"
which may have prevented the scaffold from tipping over—other than the speculative
claims of counsel that "[n]o load-bearing capacity or lack of bracing would have prevented [the]
event." See Fowx v. State of NY, 824 NYS2d 762 (finding that "movant's
counsel has stated, in general and conclusory fashion, that the rules and [*4]regulations of the Commissioner have been violated. Such general
allegations do not allow the Court to determine whether the proposed cause of action is patently
groundless, frivolous or legally defective or if there is reasonable cause to believe that a valid
cause of action exists") (citations omitted). Hence, Defendants have failed to make a prima facie
showing of entitlement to judgment as a matter of law regarding Plaintiff's Labor Law §
241(6) claim, thus, its application as to this issue is denied—regardless of the sufficiency
of Plaintiff's opposition.
Labor Law § 200
"To establish liability for a violation of Labor Law
§ 200 and for common-law negligence, a plaintiff must demonstrate that the defendants
exercised supervision and control over the work performed, or had actual or constructive notice
of an allegedly unsafe condition." Pilch v. Bd. Of Educ., 27 AD3d 711, 713. Plaintiff
admits in his deposition that his supervisor worked for "Seasons," (Def. Aff.
Supp. at Ex E at 33:6-12), and that no one other than the Seasons supervisor ever told
him how to do his work (id. at 84:18-21). Therefore, 1275/1291-TISHMAN is entitled to
the dismissal of Plaintiff's Labor Law § 200 claim.
The foregoing shall constitute the decision and order of this Court.
Dated: _________________J.S.C.
APPEARANCES:
Beth J. Schlossman, Esq.
Attorney for Plaintiff
PASCUAL FLORES
26 Court Street
Brooklyn, New York 11242
(718) 522-5000
David A. Shimkin, Esq.
Attorney for Defendants/Third-Party Plaintiffs
1275/1291 BROADWAY LLC
TISHMAN INTERIORS CORPORATION
45 Broadway, 16th Floor
New York, New York 10006
(212) 509-9400
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
