MANNINO v. [And a Third-Party Action] (2025)

Order, Supreme Court, New York County (Sabrina Kraus, J.), entered August 2, 2023, which, to the extent appealed from, denied plaintiff's motion for summary judgment on liability on his Labor Law §§ 240(1) and 241(6) causes of action, granted the motion of defendants The Board of Trustees of Fashion Institute of Technology, Fashion Institute of Technology (together, FIT), The City of New York, and The New York City Department of Education (together, the City), and TDX Construction Corp. for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) causes of action as against them, and granted the cross-motion of defendants Waldorf Exteriors, LLC and Calvin Maintenance, Inc. for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) causes of action as against them, unanimously modified, on the law, defendants’ motion and cross-motion denied, the Labor Law §§ 240(1) cause of action reinstated as against FIT and the City, and plaintiff's motion for summary judgment on liability on his Labor Law § 240(1) claim granted as against FIT and the City, the matter remanded to Supreme Court for further proceedings regarding whether TDX, Waldorf, or Calvin were statutory agents of the owner or general contractor, and otherwise affirmed, without costs.

Plaintiff was injured while working at a construction project in a building owned by the City and occupied by FIT. TDX was the construction manager for the project.  Plaintiff's employer, nonparty general contractor Vanguard Construction & Development Co., retained Waldorf and Calvin as the demolition subcontractors.  On the day of his injury, plaintiff was tasked with chipping cement encasements from two-story, steel vertical columns located in the lobby of the building.  Plaintiff was going up in a scissor lift when he was struck by a 200–to–300–pound piece of cement that fell from the middle tier of a column.

Plaintiff has established prima facie entitlement to summary judgment on liability on his Labor Law § 240(1) cause of action because he demonstrated that he was injured by falling cement from an area on a vertical column, and that at the time of the accident he was not otherwise engaged in actual cement removal (see Hyatt v. Queens W. Dev. Corp., 194 A.D.3d 548, 549, 143 N.Y.S.3d 878 [1st Dept. 2021];  Leveron v. Prana Growth Fund I, L.P., 181 A.D.3d 449, 450, 121 N.Y.S.3d 242 [1st Dept. 2020]).  Moreover, shoring or bracing of the cement casing on the columns could have been accomplished by wire mesh or other means without making the work impossible to complete (see Hyatt, 194 A.D.3d at 549, 143 N.Y.S.3d 878;  Ragubir v. Gibraltar Mgt. Co., Inc., 146 A.D.3d 563, 564, 45 N.Y.S.3d 76 [1st Dept. 2017]).  In opposition to plaintiff's motion, FIT and the City fail to show how adequate safety measures would interfere with or preclude plaintiff from completing his assigned demolition task.

However, questions of fact remain as to whether TDX was a statutory agent of FIT in light of testimony that TDX could stop the work to enforce safety practices, as well as testimony that TDX was the “eyes and ears” of FIT during the renovation project (see Walls v. Turner Constr. Corp., 4 N.Y.3d 861, 863–864, 798 N.Y.S.2d 351, 831 N.E.2d 408 [2005];  DaSilva v. Haks Engrs., Architects & Land Surveyors, P.C., 125 A.D.3d 480, 481, 4 N.Y.S.3d 162 [1st Dept. 2015]).  Questions of fact are also raised as to whether Waldorf and Calvin were statutory agents, as the evidence indicates that their supervision over earlier demolition work on the columns could reasonably have destabilized the cement encasements (see Tighe v. Hennegan Const. Co., Inc., 48 A.D.3d 201, 202, 850 N.Y.S.2d 417 [1st Dept. 2008]).

Because plaintiff demonstrated entitlement to partial summary judgment on his Labor Law § 240(1) cause of action, we need not reach his arguments regarding his Labor Law § 241(6) cause of action, as those arguments are academic (see Ruiz v. BOP 245 Park LLC, 231 A.D.3d 683, 684, 219 N.Y.S.3d 326 [1st Dept. 2024]).