ONOFRIO MAZZURCO v. BROADWAY 52ND ROBERT SAMUELS INC (2026)

Congdon, Flaherty, O'Callaghan, Fishlinger & Pavlides, Uniondale (Michael T. Reagan of counsel), for appellant-respondent.

Kahana Feld LLP, New York (John F. Watkins of counsel), for respondent-appellant.

Hogan & Cassell, LLP, Jericho (Michael Cassell of counsel), for Onofrio Mazzurco and Giuseppina Mazzurco, respondents.

Order, Supreme Court, New York County (Leslie A. Stroth, J.), entered on or about September 20, 2024, which, to the extent appealed from as limited by the briefs, denied the motion of defendant Robert Samuels, Inc. (RBS) for summary judgment dismissing the complaint as against it, granted the motion of defendant Broadway 52nd L.P. to the extent it sought summary judgment on its cross-claim for common-law indemnification and contribution against RBS and denied Broadway's motion to the extent it sought summary judgment on its cross-claim for contractual indemnification against RBS, unanimously modified, on the law, to grant Broadway's motion to the extent it sought summary judgment on its cross-claim for contractual indemnification against RBS, and otherwise affirmed, without costs.

Plaintiff, who was employed as a laborer for nonparty J.T. Magen and Company, Inc., was injured when he fell down a stairwell at a job site.  According to plaintiff, the stairwell was very dark as he descended it, and his foot got tangled in a loop of wire, causing him to trip and fall.

Supreme Court properly denied RBS's motion for summary judgment on plaintiff's claims alleging violations of Labor Law §§ 240(1), 241(6), and 200, and common-law negligence.  A subcontractor such as RBS may be liable as a statutory agent under the relevant Labor Law provisions where it was “delegated the supervision and control either over the specific work area involved or the work which gave rise to the injury” (Nascimento v. Bridgehampton Const.  Corp., 86 AD3d 189, 193 [1st Dept 2011] [quotation omitted];  see also Bacova v. Paramount Leasehold, L.P., 223 AD3d 428, 430 [1st Dept 2024];  Payne v. NSH Community Servs., Inc., 203 AD3d 546, 547 [1st Dept 2022] ).

The record demonstrates that RBS worked in the stairway at issue.  The record also presents issues of fact as to whether RBS created a hazardous condition that contributed to plaintiff's injury by improperly lighting the staircase or by failing to remove the Cat–6 cable that allegedly was a cause of plaintiff's fall.  These facts, if proven, may also give rise to RBS's liability under common-law negligence (see Wenk v. Extell W. 57th St. LLC, 188 AD3d 550, 551 [1st Dept 2020] ).  The fact that plaintiff's job duties included debris removal does not bar these causes of action, as he was not actually engaged in that work when he fell.  On the contrary, plaintiff's unrebutted testimony established that he was not engaged in debris removal when his leg got caught on the loop of wire, but that he was merely walking down a staircase to see whether he needed to clean a lower floor (see Trinajstic v. St. Owner, LP, 149 AD3d 631, 632 [1st Dept 2017];  Lopez v. Fordham Univ., 69 AD3d 532, 532–533 [1st Dept 2010], lv dismissed 15 NY3d 821 [2010] ).

That plaintiff was allowed to use a freight elevator when it was available instead of the staircase to travel to the other floor does not warrant dismissal of the Labor Law § 240(1) cause of action (see Ramirez v Shoats, 78 AD3d 515, 517 [1st Dept 2010][“even if plaintiff had an alternative way to get to and from his work area, the stairs provided the most efficient means of access”] ).  Questions of fact exist as to whether the staircase constituted a Labor Law § 240(1) safety device (see e.g. Gamez v Sandy Clarkson LLC, 221 AD3d 453 [1st Dept 2023];  Waldron v. City of New York, 2020 WL 7315593, *5, N.Y. Misc. LEXIS 10426, *11–12 [Sup Ct, N.Y. County 2020], affd 203 AD3d 565 [1st Dept 2020] ).¹

In addition, in its brief, RBS concedes that “in the First Department, falls from permanent appurtenances which function as the only means of access are ․ entitled to Labor Law § 240(1) protection,” including “stairways ․ utilized ․ in the performance of the plaintiff's work.”  Consistent with this, RBS cites no controlling caselaw holding that Labor Law § 240(1) does not apply to injuries incurred on stairways that are not structurally defective.²  In the face of this concession, the dissent makes an argument that appellant does not make:  that Labor Law § 240(1) claims can only be made as to injuries incurred on stairways that are structurally defective.  The dissent cites three cases to support its claim that Labor Law § 240(1) claims involving stairways have been sustained only when the stairways involved were structurally defective.  However, none of these cases sustained a Labor Law § 240(1) claim;  rather, they affirmed denials of summary judgment, and in any event, did not turn on the structural soundness of the staircases at issue (see Gamez, 221 AD3d at 454;  Waldron, 203 AD3d at 565;  Ramirez, 78 AD3d at 516).  It is improper for us to decide an issue that appellant did not raise and that respondent was not given an opportunity to address (see Matter of 381 Search Warrants Directed to Facebook, Inc. [New York County Dist. Attorney's Off.], 29 NY3d 231, 247 n 7 [2017], quoting Misicki v. Cardona, 12 NY3d 511, 519 [2009] [“We are not in the business of blindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made”];  Matter of AL.C [Administration for Children's Servs.  Of the City of N.Y.], 229 AD3d 418, 423–424 [1st Dept 2024] ).³

As for plaintiff's Labor Law § 241(6) cause of action, plaintiff not only testified that he tripped over the wire left on the staircase, but that the darkness of the staircase was a contributing factor.  Thus, plaintiff sufficiently raised a triable issue of fact as to a violation of 12 NYCRR 23–1.30 (see Favaloro v. Port Auth. of N.Y. & N.J., 191 AD3d 524, 525 [1st Dept 2021] ).

As to Broadway's motion, Broadway established prima facie that it was entitled to summary judgment on its cross-claim for common-law indemnification against RBS (see Tapia v. 126 First Ave., 282 A.D.2d 220, 220 [1st Dept 2001];  Naughton v. City of New York, 94 AD3d 1, 10 [1st Dept 2012] ).  The conditions that are alleged to have harmed the plaintiff — namely, the cable and dark conditions of the stairwell — are alleged to have been RBS's responsibility.  Furthermore, Broadway established that it was not negligent in the maintenance of the stairwell and could be held vicariously liable.

However, Supreme Court should also have granted summary judgment to Broadway on its cross-claim for contractual indemnification against RBS. The indemnification provision in question required RBS to indemnify Broadway for damages “arising out of” RBS's performance or lack of performance of its work.  The record establishes that the alleged injury, which is the basis of plaintiff's causes of action brought against Broadway, arose out of RBS's work, thereby triggering the indemnification provision (see Regal Constr.  Corp. v National Union Fire Ins. Co. of Pittsburgh, PA, 15 NY3d 34, 38 [2010] ).  Contrary to RBS's contentions, granting the motion is not premature;  Supreme Court dismissed the Labor Law § 200 and negligence causes of action against Broadway, and RBS failed to raise a triable issue of fact in opposition to Broadway's showing that plaintiff's injuries arose out of RBS's work (see Sunun v. Klein, 188 AD3d 507, 509 [1st Dept 2020] ).

We have considered the remaining arguments and find them unavailing.

All concur except Friedman and O'Neill–Levy JJ. who dissent in

part in a separate memorandum by Friedman J.

FRIEDMAN, J. (dissenting in part)

While I otherwise concur with the majority's disposition of this appeal, I dissent from the affirmance of the denial of the motion by defendant Robert Samuels, Inc. (RBS) insofar as that motion sought summary judgment dismissing the claim under Labor Law § 240(1).  Plaintiff, who was injured when he fell down a permanent stairway at a job site, testified that his foot became tangled in a loop of wire that happened to be resting on the stairs, causing him to trip and fall.  This record presents no basis for the imposition of liability under Labor Law § 240(1).

The cases in which claims under § 240(1) have been sustained on the ground that the stairways constituted inadequate safety devices involved stairways that were structurally defective (see Gamez v. Sandy Clarkson LLC, 221 AD3d 453, 454 [1st Dept 2023] [the plaintiff, while walking down a staircase, “tripped on an uncovered gap between the stairs and the landing”];  Waldron v. City of New York, 203 AD3d 565 [1st Dept 2020], aff'g 2020 N.Y. Slip Op 34055[U], *3 [Sup Ct, N.Y. County Dec. 9, 2020] [the plaintiff lost his balance and fell because of a “height difference between the (stair) landing and the existing floor” and the absence of any handrail to grab onto];  Ramirez v. Shoats, 78 AD3d 515, 516 [1st Dept 2010] [“Plaintiff was injured when a piece of corrugated metal covering the unfinished landing of a newly constructed stairway slipped under his feet, causing him to fall to the basement level of a building under construction”] ).⁴  In this case, there is no contention that the stairway on which plaintiff was injured was structurally unsafe.  Rather, plaintiff alleges that he tripped on debris (a wire), which is an “ordinary tripping or slipping hazard” separate from any “elevation-related risk” covered by § 240(1) (Nicometi v. Vineyards of Fredonia, LLC, 25 NY3d 90, 98–99 [2015] ).

I reject the majority's accusation that I would have this Court “improper[ly] ․ decide an issue that appellant did not raise and to which respondent was not given an opportunity to respond.”  Surely, if there were any evidence that the stairway had some defect that might somehow have contributed to plaintiff's accident, plaintiffs would have raised the argument that the stairway was defective.  Moreover, RBS has cited, both before the motion court and upon this appeal, decisions (including one from this Court) holding that a permanent stairway does not constitute a safety device within the purview of Labor Law § 240(1), and thus cannot provide the predicate for liability under the statute (see Ryan v. Morse Diesel, 98 A.D.2d 615, 616 [1st Dept 1983];  see also Verdi v. SP Irving Owner, LLC, 227 AD3d 932, 936 [2d Dept 2024];  Sullivan v New York Athletic Club of City of N.Y., 162 AD3d 950, 953 [2d Dept 2018], lv dismissed 32 NY3d 1196 [2019];  Gallagher v. Andron Constr.  Corp., 21 AD3d 988, 989 [2d Dept 2005] ).⁵  Thus, there is no merit in the majority's suggestion that we would somehow be “blindsiding” plaintiffs in deciding this issue as I propose.  In any event, in deciding an issue duly raised by the parties, a court is not restricted to relying on precedents and legal theories brought to its attention by the parties.  Moreover, as indicated, a resolution of the issue on this ground would fall precisely within the precedents the parties have brought to our attention and their discussion of them.

The majority misstates my position in attributing to me the view “that Labor Law § 240(1) claims can only be made as to injuries incurred on stairways that are structurally defective.”  A claim under section 240(1) can be made on the basis of an injury that happened to be incurred upon a nondefective, permanent stairway – but only if there is evidence that the injured worker was not provided with some safety device, other than the stairway itself, that would have provided adequate protection against the elevation-related risks addressed by the statute.  This is illustrated by Caba v. 587–91 Third Owner, LLC (213 AD3d 520 [1st Dept 2023] ), in which the plaintiff lost his footing while walking backwards down a stairway, without being able to see the steps, as he carried a heavy spray paint machine, as directed by his foreman (see id. at 520–521).  Although the stairs upon which the Caba plaintiff was injured were “admittedly ․ not defective” (id. at 521), the imposition of liability under section 240(1) was not based on any determination that the stairs themselves were an inadequate safety device.  Rather, we held that, because the task involved work on an elevated platform, section 240(1) required the defendants “to provide plaintiff with an adequate safety device for the task of carrying the paint machine down the stairs,” which the defendants “failed to do” (id.).  It was “the absence of a safety device” to make it safe to perform the task on the stairway, not any deficiency of the stairway itself, that “was the direct cause of plaintiff's injury” (id.) and the basis for the predication of liability under the statute.  Similarly, in Runner v. New York Stock Exch., Inc. (13 NY3d 599 [2009] ), where the plaintiff was injured while moving a heavy reel of wire down a set of stairs, the violation of the statute was held to consist in having failed to provide a device to adequately regulate the reel's descent (see id. at 602, 605), not in any inadequacy of the stairs themselves.

In this case, unlike Runner and Caba, there is no suggestion that some other safety device within the purview of section 240(1), had it been provided to plaintiff, would have prevented him from tripping on the piece of debris that happened to be present on the stairs.  The presence of the debris on the stairway – which is the alleged cause of plaintiff's injury – did not render the permanent, structurally sound stairway an inadequate safety device.  Not every injury incurred in a fall while working at an elevation comes within the scope of section 240(1) (see Nicometi, 25 NY3d at 99 [liability under section 240(1) did not attach where the plaintiff slipped and fell on ice while using stilts to install insulation in a ceiling because the ice was an “ordinary tripping or slipping hazard”] ).  Accordingly, in my view, although plaintiff has potential remedies under other statutes and the common law, he has no claim under Labor Law § 240(1), as a matter of law.

Finally, to the extent that the majority takes the position that the alleged darkness in the stairway is relevant to the claim under Labor Law § 240(1), not a single decision is cited in which it was held that a lack of illumination at the site of the injury, by itself, can provide a predicate for liability under Labor Law § 240(1).  This is not surprising, since lack of illumination is a danger addressed by a different statute, Labor Law § 241(6) (see 12 NYCRR 23–1.30 [“Illumination sufficient for safe working conditions shall be provided wherever persons are required to work or pass in construction, demolition and excavation operations”] ).  We are unanimously affirming the order appealed from insofar as it held that plaintiffs have raised a triable issue on their claim under section 241(6), based on the alleged lack of illumination in the stairway.⁶  I see no reason to broaden the scope of Labor Law § 240(1) to cover hazards sufficiently addressed by other statutes and regulations.

FOOTNOTES

1.   Contrary to the dissent's statement that plaintiff has failed to suggest any safety device that would have prevented his fall, plaintiff argues that the “failure to provide proper lighting” in the stairwell caused his fall.  A claim under Labor Law § 240(1) may be premised on an argument that the stairway constituted a safety device because plaintiff was required to use it to access his work area or that the stairway was an elevated platform requiring provision of an adequate safety device, such as lighting.  Either theory, if proven, will support plaintiff's claim (see Caba v. 587–91 Third Owner, LLC, 213 AD3d 520, 521 [1st Dept 2023], citing Conlon v. Carnegie Hall Socy., Inc., 159 AD3d 655, 655 [1st Dept 2018] ).

2.   RBS and the dissent both cite to Ryan v. Morse Diesel, Inc. (98 A.D.2d 615 [1st Dept 1983] ), in which this Court found that Labor Law § 240(1) did not apply to a permanent stairway that was not a tool used in the performance of plaintiff's work.  However, unlike the dissent, RBS concedes that, in the First Department, a permanent stairway that is a tool used in the performance of plaintiff's work may result in Labor Law § 240(1) liability (see Caba, 213 AD3d at 521 [granting plaintiff summary judgment on his Labor Law § 240(1) claim based on his fall down a stairway that was “admittedly ․ not defective”] ).

3.   The dissent also cites to Nicometi v. Vineyards of Fredonia, LLC (25 NY3d 90 [2015] ) in support of its argument that plaintiff's injury was not caused by an elevation-related risk.  Appellant also did not make this argument, and neither party cites to Nicometi at all.

4.   The majority does not dispute that the stairways in Gamez, Waldron and Ramirez were structurally unsound.  Rather, the majority asserts, without explanation or support, that the defectiveness of the stairway was irrelevant to the denial of the defense motion for summary judgment in each case (which is what I mean by saying that the claims were “sustained”).  I am not persuaded by the majority's argument.

5.   Indeed, given that the other departments of the Appellate Division take the position that a permanent stairway simply does not constitute a safety device that can give rise to liability under Labor Law § 240(1), arguably this Court should overrule its contrary precedents and return to that position, which we took in Ryan (see 98 A.D.2d at 615–616 [“The rule of noscitur a sociis limits the construction of the ‘other devices' of the statute to the company of the specific words preceding it, and under no construction can this permanently installed stairway, used by plaintiff as a place of passage, be deemed to be a scaffold, hoist, stay, ladder, sling, hanger, block, pulley, brace, iron or rope”] [citation omitted] ).

6.   However, it should be noted that plaintiff's testimony about the alleged darkness of the stairway was, at best, equivocal.  Although plaintiff several times described the stairway as dark, upon further questioning, he testified:  “I don't remember if it was dark.  I don't know.”