MORINA v. 250 BROADWAY ASSOCIATES CORP (2026)

Order, Supreme Court, New York County (Leslie A. Stroth, J.), entered October 6, 2025, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for summary judgment as to liability on his Labor Law § 240(1) claim and denied defendants' motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Plaintiff, a stone mechanic employed by nonparty Harvard Maintenance, alleges that he was injured when a 350–pound stone panel fell and struck his head at a work site.  According to plaintiff, two of his coworkers were trying to place the panel on an A-frame dolly when one of the workers lost his grip, causing the panel to slip.

Defendants' argument that they did not own the building or exercise supervisory authority over the renovation work and therefore are not proper Labor Law defendants lacks merit.  Although defendant 250 Broadway Owner Corp. (Owner) was the sole titleholder of the building, defendant 250 Broadway Associates Corp. (Associates) also had an ownership interest in the building after its October 2019 merger with Owner (see Scaparo v. Village of Ilion, 13 N.Y.3d 864, 866, 893 N.Y.S.2d 823, 921 N.E.2d 590 [2009] ).  As to defendant 250 Broadway Condominium (Condominium), it maintained responsibility for the lobby in which the accident occurred and thus had the right to insist that proper safety practices were followed.  As a result, Condominium is considered an owner under the statute (see Sarigul v. New York Tel. Co., 4 A.D.3d 168, 170, 772 N.Y.S.2d 653 [1st Dept 2004] [internal quotation marks omitted] ).  As to defendant Amtrust Realty Corp., the building manager, it directly contracted with Harvard Maintenance to clean and replace the stone panels on the floor and wall of the building's lobby, and therefore delegated work at the property for Owner's benefit (see Barreto v. Board of Mgrs. of 545 W. 110th St. Condominium, 234 A.D.3d 515, 516–517, 224 N.Y.S.3d 69 [1st Dept 2025] ).  Further, even if Amtrust did not actually supervise Harvard Maintenance's work, it had supervisory authority over the project (id. at 517, 224 N.Y.S.3d 69).  Amtrust therefore qualifies as Owner's statutory agent.

As to the merits of the action, Supreme Court correctly determined that plaintiff established prima facie entitlement to summary judgment as to liability on his Labor Law § 240(1) claim through his submission of evidence showing that the stone panel fell and hit him because a coworker lost his grip on as he was placing the panel on a dolly.  In opposition, defendants failed to raise an issue of fact.  Defendants' argument that plaintiff walked into the stone panel is not supported by the record, as plaintiff's coworker averred in an affidavit that “the stone panel contacted [plaintiff] on his head,” not that plaintiff walked into it.  The affidavit of plaintiff's supervisor is not sufficient to raise an issue of fact because the supervisor did not witness the accident.  Rather, he averred that one of plaintiff's other coworkers told him that plaintiff “contacted his head on a ․ stone panel.”  This statement is hearsay.  Although hearsay statements may be offered in opposition to a motion for summary judgment, they will not defeat summary judgment where they are the only evidence upon which the opposition is based (see Gonzalez v. 1225 Ogden Deli Grocery Corp., 158 A.D.3d 582, 584, 71 N.Y.S.3d 473 [1st Dept 2018] ).

Supreme Court correctly determined that plaintiff was not the sole proximate cause of his injuries.  Assuming plaintiff could have been found negligent because he was talking on his cell phone prior to the accident, any comparative negligence is not a defense to a Labor Law § 240(1) claim (see Gallegos v. Bridge Land Vestry, LLC, 188 A.D.3d 566, 567, 136 N.Y.S.3d 247 [1st Dept 2020] ).

As plaintiff is entitled to summary judgment as to liability on his Labor Law § 240(1) claim, we do not reach his common-law negligence or Labor Law § 200 claims, as they are academic (see e.g. DaSilva v. Everest Scaffolding, Inc., 136 A.D.3d 423, 424, 25 N.Y.S.3d 141 [1st Dept 2016] ).

We have considered defendants' remaining contentions and find them unavailing.