MOISES ORTIZ v. FDB ACQUISITION LLC (2025)

Order, Supreme Court, New York County (Gerald Lebovitz, J.), entered on or about July 31, 2024, which denied plaintiffs’ motion for summary judgment on their Labor Law § 240(1) claim, sua sponte granted summary judgment dismissing that claim, denied plaintiffs’ motion for summary judgment on their Labor Law § 241(6) claim predicated on Industrial Code § 23–1.7(a)(1), granted plaintiffs’ motion on their Labor Law § 241(6) claim predicated on Industrial Code § 23–4.1, and denied third-party defendant RNC Industries, LLC's (RNC) motion for summary judgment dismissing plaintiffs’ lost earnings claim, unanimously modified, on the law, to grant plaintiffs’ motion for summary judgment on their Labor Law § 240(1) claim, and otherwise affirmed, without costs.

Defendant FDB Acquisition LLC was the owner of a construction project that involved demolition of the existing building and replacing it with a two-story property.  Defendant Pav–Lak Contracting, Inc. was the construction manager of the project and subcontracted foundation work to third-party defendant RNC. Because the site had been excavated below the grade of the adjacent building, the plan called for work to underpin and support the neighbor's foundation.  Plaintiff Mr. Ortiz, an employee of RNC, was engaged in that work when he was struck by a large piece of concrete that had come loose from the adjacent building's newly exposed façade.

Contrary to defendants’ position, the event was foreseeable, rendering Labor Law § 240(1) applicable and summary judgment on that claim appropriate (see Mena v. 485 Seventh Ave. Assoc. LLC, 199 A.D.3d 420, 421, 153 N.Y.S.3d 865 [1st Dept. 2021];  Sinchi v. HWA 1290 III LLC, 184 A.D.3d 408, 408–409, 125 N.Y.S.3d 415 [1st Dept. 2020];  Garcia v. Neighborhood Partnership Hous. Dev. Fund Co., Inc., 113 A.D.3d 494, 980 N.Y.S.2d 6 [1st Dept. 2014]).  Whether the collapse of a permanent structure is foreseeable is analyzed “not in a strict negligence sense, but in the sense of foreseeability of exposure to an elevation-related risk” (Garcia, 113 A.D.3d at 495, 980 N.Y.S.2d 6).  Here, the possibility of insecurity in the foundation developing after adjacent demolition was well known to defendants, as evinced by the need for a support plan in the first instance.  As noted by an expert engaged by defendants themselves in earlier motion practice, photographs of the façade showed poorly consolidated and deteriorated concrete with numerous voids, obvious discontinuities, several cold unbonded joints, and the appearance of having been constructed without steel reinforcing bars.  It was thus foreseeable that the newly exposed and unsupported wall, or a portion thereof, would fail.

Moreover, plaintiffs established that Mr. Ortiz's injuries were caused by the lack of any safety device of the kind enumerated in Labor Law § 240(1) to secure the neighboring foundation.  Plaintiffs’ expert established that defendants failed to properly underpin the foundation of the adjoining building by bracing and shoring the “poor conditions of the concrete and the obvious presence of cold joints within the excavated pins of the underpinning work.”  Although defendants’ expert reached a different conclusion, his affidavit is conclusory and fails to adequately explain why he found that “there are no known safety devices as described in [§ 240(1)] that the plaintiff could have used to help him in this particular scope of work.”

(Misseritti v. Mark IV Constr. Co., Inc., 86 N.Y.2d 487, 634 N.Y.S.2d 35, 657 N.E.2d 1318 [1995]), relied upon by the motion court, is distinguishable.  There, the Court of Appeals construed the term “braces” referred to in Labor Law § 240(1) to mean “those used to support elevated work sites, not braces designed to shore up or lend support to a completed structure” (id. at 491, 634 N.Y.S.2d 35, 657 N.E.2d 1318).  The Court concluded that decedent's injury was not covered by the Labor Law because he sustained injuries from a completed, concrete firewall and was not working at an elevated level at the time of the accident (see id.)  By contrast here, plaintiff was working in an excavated site at a level below the foundation of the adjacent building, when a concrete block dislodged and fell on him.  The excavation was part of an ongoing underpinning plan to protect the adjacent building's foundation.  The neighboring foundation was, therefore, “ ‘an object that required securing for the purposes of the undertaking’ ” (Purcell v. Visiting Nurses Found. Inc., 127 A.D.3d 572, 574, 8 N.Y.S.3d 279 [1st Dept. 2015], quoting Outar v. City of New York, 5 N.Y.3d 731, 732, 799 N.Y.S.2d 770, 832 N.E.2d 1186 [2005]).

The grant of summary judgment in favor of plaintiffs on their Labor Law § 240(1) claim renders the issue of liability on their Labor Law § 241(6) claim academic (see e.g. Malan v. FSJ Realty Group II LLC, 213 A.D.3d 541, 542, 185 N.Y.S.3d 5 [1st Dept. 2023];  Howard v. Turner Constr. Co., 134 A.D.3d 523, 524, 21 N.Y.S.3d 251 [1st Dept. 2015]).

The motion court correctly found that RNC failed to establish as a matter of law that plaintiff could not seek lost wages (see Balbuena v. IDR Realty LLC, 6 N.Y.3d 338, 360, 812 N.Y.S.2d 416, 845 N.E.2d 1246 [2006]).