BARBOSA v. 1169 HOE LLC (2026)

Order, Supreme Court, Bronx County (Myrna Socorro, J.), entered on or about November 14, 2025, which, to the extent appealed from as limited by the briefs, denied the branch of plaintiff's motion for summary judgment on the issue of liability under Labor Law § 240(1), granted the branch of his motion for summary judgment on the issue of liability under Labor Law § 241(6) insofar as predicated on Industrial Code (12 NYCRR) § 23–1.7(d), denied the branch of defendants' motion for summary judgment dismissing that portion of the Labor Law § 241(6) claim, and granted the branch of defendants' motion for summary judgment dismissing the common-law negligence and Labor Law §§ 200 and 240(1) claims, unanimously affirmed, without costs.

Plaintiff's testimony that he injured his back while lifting concrete forms after his foot slipped on rainwater and oil on the plywood floor established a prima facie violation of Industrial Code § 23–1.7(d) (see De Los Santos v. Carlyle House Inc., 227 A.D.3d 542, 542, 211 N.Y.S.3d 337 [1st Dept. 2024];  Velasquez v. 795 Columbus LLC, 103 A.D.3d 541, 541–542, 959 N.Y.S.2d 491 [1st Dept. 2013] ).  In opposition, defendants failed to adduce evidence showing that the presence of those substances was “inherent” to plaintiff's task of pulling concrete forms up to the third floor while the forms were pushed from the second floor through an opening between the floors (Bazdaric v. Almah Partners LLC, 41 N.Y.3d 310, 320, 209 N.Y.S.3d 310, 232 N.E.3d 1244 [2024];  see Lourenco v. City of New York, 228 A.D.3d 577, 580, 215 N.Y.S.3d 6 [1st Dept. 2024] ).

The court properly dismissed the Labor Law § 240(1) claim as the record is insufficient to support the conclusion that the approximately 16–by–2–foot concrete form being manually passed through the closely fitted floor opening required securing for the purposes of the undertaking (see Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 267–268, 727 N.Y.S.2d 37, 750 N.E.2d 1085 [2001] ).  There is no evidence that the form fell or otherwise moved in an uncontrolled manner while being lifted, or that plaintiff's injuries were caused by an effort to prevent it from falling (cf. Alonzo v. RP1185 LLC, 245 A.D.3d 584, 585, 247 N.Y.S.3d 70 [1st Dept. 2026];  Skow v. Jones, Lang & Wooton Corp., 240 A.D.2d 194, 195, 657 N.Y.S.2d 709 [1st Dept. 1997], lv denied 94 N.Y.2d 758, 704 N.Y.S.2d 532, 725 N.E.2d 1094 [1999] ).  Although plaintiff continued holding the concrete form when he slipped and injured his back, he testified that the form was halfway through the opening and that he did not know why he held onto it.  Under these circumstances, plaintiff cannot demonstrate that his injuries were the direct consequence of an elevation-related hazard under Labor Law § 240(1) (see Fabrizi v. 1095 Ave. of the Ams., L.L.C., 22 N.Y.3d 658, 662–663, 985 N.Y.S.2d 416, 8 N.E.3d 791 [2014];  see also Nicometi v. Vineyards of Fredonia, LLC, 25 N.Y.3d 90, 98–99, 7 N.Y.S.3d 263, 30 N.E.3d 154 [2015] ).

The common-law negligence and Labor Law § 200 claims were correctly dismissed as the rainwater and oil that allegedly contributed to the accident were transient conditions that, on this record, resulted from the means and methods by which the work was conducted (see Cappabianca v. Skanska USA Bldg. Inc., 99 A.D.3d 139, 143–144, 950 N.Y.S.2d 35 [1st Dept. 2012] ).

Motion for a stay of trial pending determination of appeal, denied