RODRIGUEZ v. [And Another Action] (2026)

Order, Supreme Court, New York County (Mary V. Rosado, J.), entered on or about June 20, 2024, which, to the extent appealed from as limited by the briefs, granted plaintiff's cross-motion for partial summary judgment on his claim pursuant to Labor Law § 240(1) against defendants 1314 Development LLC and CB Developers d/b/a CB Developers, LLC, unanimously affirmed, without costs.  Appeals by defendants C & B Developers LLC, CBJ Management LLC, and Alba Services, Inc., unanimously dismissed, without costs, as being taken from a paper by which they are not aggrieved.

As a threshold matter, dismissal of the appeal is warranted as to the parties that were not aggrieved by the order on appeal (see CPLR 5511).  The order expressly denied summary judgment to plaintiff as against defendants CBJ Management LLC and C & B Developers LLC, and plaintiff did not even seek summary judgment against defendant Alba Services, Inc. “That the order appealed from ‘may contain language or reasoning’ ” that these parties “deem[ ] adverse to [their] interest[s] does not accord [them] standing to take an appeal” (Charles Condominiums, LLC v. Victor RPM First, LLC, 239 A.D.3d 404, 405, 236 N.Y.S.3d 48 [1st Dept. 2025] [internal quotation marks omitted]).

Supreme Court properly granted summary judgment to plaintiff against 1314 Development, the building owner, and CB Developers, its agent.  Under Labor Law § 240(1), “the single decisive question is whether plaintiff's injuries were 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 N.Y.3d 599, 603, 895 N.Y.S.2d 279, 922 N.E.2d 865 [2009]).  Plaintiff demonstrated this prima facie, and defendants failed to proffer evidence of a triable issue of fact.  1314 Development had already stipulated to the fact that plaintiff was a worker engaged in asbestos removal on the premises.  Plaintiff's “uncontroverted affidavit demonstrated” that while he was attempting to descend from the roof area where he was working, he had to traverse narrow metal beams which were normally covered by plywood that had been removed, and slipped and fell through the sheet rock into the bathroom below, and that “no other protective devices were provided to protect him from falling” (Velasquez v. 94 E. 208 St. Partners LLC, 220 A.D.3d 472, 472–473, 197 N.Y.S.3d 501 [1st Dept. 2023]).  Indeed, plaintiff established that the accident was entirely foreseeable (see Giancola v. Yale Club of N.Y. City, 161 A.D.3d 695, 696, 78 N.Y.S.3d 71 [1st Dept. 2018];  see also Ciaurella v. Trustees of Columbia Univ. in the City of N.Y., 228 A.D.3d 555, 557, 212 N.Y.S.3d 639 [1st Dept. 2024]).

The affidavit proffered by the owner of the asbestos contractor hired to perform the work in which plaintiff was engaged when he fell failed to create an issue of fact.  The affidavit did not state that the affiant was present on the date of the accident, and mischaracterized plaintiff's factual averments.  The affiant's statement that there was “no reason” for plaintiff to be on top of the bathroom roof is belied by the report annexed to the affidavit showing that the entire vaulted ceiling on the first floor, including the area above the bathrooms, was an asbestos-detected area and the work proposal that the affiant himself provided to the owner and its agent included removal of the entire ceiling in the scope of work.  Accordingly, “no one with personal knowledge of the circumstances surrounding plaintiff's work at the time of the accident established” or identified a factual issue about whether there was plywood where plaintiff needed it or that plaintiff purposely stepped on the sheet rock (see Pirozzo v. Laight St. Fee Owner LLC, 209 A.D.3d 596, 597, 177 N.Y.S.3d 32 [1st Dept. 2022]).

Plaintiff's cross-motion was not premature, as the owner and its agent each “had a reasonable opportunity to pursue discovery” from the time they were first brought into the respective actions, now consolidated, in 2018 and 2021, respectively, but failed to show diligence in seeking plaintiff's deposition (Singh v. New York City Hous. Auth., 177 A.D.3d 475, 476, 112 N.Y.S.3d 63 [1st Dept. 2019]).

We have considered the remaining contentions and find them unavailing.