AMBROSE v. CITY UNIVERSITY CONSTRUCTION FUND (2026)

Order, Supreme Court, New York County (Leslie A. Stroth, J.), entered on or about July 3, 2025, which, to the extent appealed from as limited by the briefs, denied the motion by defendants City University Construction Fund, Memorial Sloan Kettering Cancer Center, Memorial Hospital for Cancer and Allied Diseases, and Turner Construction Company for summary judgment dismissing plaintiff's claims pursuant to Labor Law § 240(1), Labor Law § 200 and common-law negligence, and on its cause of action against third-party defendant B & G Industries LTD for contractual indemnification, awarded summary judgment to plaintiff on his claim pursuant to Labor Law § 240(1), and denied B & G's motion for summary judgment dismissing the third-party complaint, unanimously modified, on the law, to dismiss plaintiff's Labor Law § 240(1) cause of action against defendants, to dismiss defendants’ third-party claims for common-law and contractual indemnification and contribution against B & G, and B & G's common-law indemnification and contribution counterclaims against defendants, and to vacate that part of the order awarding summary judgment to plaintiff on his Labor Law § 240(1) claim, and otherwise affirmed, without costs.

Plaintiff was an electrician employed by B & G to perform telecommunications work as part of a larger project to construct new buildings for defendants.  As alleged, plaintiff sustained injuries when he fell while stepping backwards out of an elevator doorway on the fourth floor of the building.  The elevator doorway was approximately 6 to 12 inches above the unfinished floor.

Plaintiff testified that prior to the incident, he entered the crowded elevator on his way to his jobsite with his back facing the elevator doors.  Plaintiff's accident occurred as he stepped backwards out of the elevator to allow other workers to exit.  According to plaintiff, wooden ramps were usually placed next to elevator doors throughout the building to facilitate the moving of personnel, materials, tools via carts, and wheeled gang boxes.  However, on the date of the incident, the fourth floor's ramp had been removed, creating a gap between the elevator doorway and the unfinished floor.  As plaintiff exited the elevator, he stepped with one foot into this gap, and when his foot landed on the ground, all his weight transferred to his knee.  Plaintiff's knee buckled, causing an injury that eventually required a full knee replacement surgery.

Supreme Court should have granted defendants’ motion for summary judgment to the extent it sought dismissal of the Labor Law § 240(1) cause of action.  Not every fall results in the “extraordinary protections of Labor Law § 240(1)” (Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 267, 727 N.Y.S.2d 37, 750 N.E.2d 1085 [2001] ).  The statute protects workers only from those falls stemming from the “extraordinary elevation risks” created by “the relative elevation at which the [work] must be performed” and not from “the usual and ordinary dangers of a construction site” (Toefer v. Long Is. R.R., 4 N.Y.3d 399, 407, 795 N.Y.S.2d 511, 828 N.E.2d 614 [2005] ).

It is true that “there is no bright-line minimum height differential that determines whether an elevation hazard exists” (Palumbo v. Citigroup Tech., Inc., 240 A.D.3d 455, 456, 237 N.Y.S.3d 201 [1st Dept 2025] ).  However, under the present circumstances, the 6–to–12 inch gap between the elevator doorway and the floor “was not a physically significant height elevation differential to trigger the protection of Labor Law § 240(1)” (Fischer v. VNO 225 W. 58th St. LLC, 215 A.D.3d 486, 487, 189 N.Y.S.3d 9 [1st Dept 2023];  see Parker v. 205–209 E. 57th St. Assoc., LLC, 100 A.D.3d 607, 608, 953 N.Y.S.2d 635 [2d Dept 2012] [Labor Law § 240(1) inapplicable where plaintiff stepped through doorway into hole normally covered by a metal grate];  DeMayo v. 1000 N. of N.Y. Co., 246 A.D.2d 506, 507, 667 N.Y.S.2d 400 [2d Dept 1998] [“A 13–inch high step is not an elevation-related hazard contemplated by the statute”] ).  Also, neither the elevator nor the missing ramp was the “functional equivalent of a safety device enumerated in the statute” (see Jackson v. Hunter Roberts Constr. Group, LLC, 161 A.D.3d 666, 667, 78 N.Y.S.3d 310 [1st Dept 2018];  cf.  Palumbo, 240 A.D.3d at 456, 237 N.Y.S.3d 201).  Instead, the record supports a conclusion that plaintiff's injury arose from the type of “usual and ordinary” perils plaintiff could expect at his job site (see Reyes v. Magnetic Constr., Inc., 83 A.D.3d 512, 513, 922 N.Y.S.2d 291 [1st Dept 2011] [dismissing Labor Law § 240(1) claim where plaintiff tripped while walking down the stairs as the result of “the usual and ordinary dangers of a construction site”];  Healy v. Trinity Hudson Holdings, 243 A.D.3d 474, 475, 242 N.Y.S.3d 641 [1st Dept 2025] [affirming dismissal of Labor Law § 240(1) claim where plaintiff “missed a step, and fell”] ).  Even if we did not dismiss the claim, we would vacate those parts of the order purporting to grant plaintiff partial summary judgment on his Labor Law § 240(1) claim because plaintiff did not seek such relief.

By contrast, Supreme Court properly denied defendants’ motion to the extent it sought summary judgment dismissing the common-law negligence and Labor Law § 200 causes of action.  The accident arose from the means and methods of the work, as opposed to any inherent defect in the property, making the relevant inquiry whether defendants “exercised control or supervision over the work and had actual or constructive notice of the purportedly unsafe condition” (Alonzo v. Safe Harbors of the Hudson Hous. Dev. Fund Co., Inc., 104 A.D.3d 446, 449, 961 N.Y.S.2d 91 [1st Dept 2013] [internal quotation marks omitted] ).  On this point, defendants failed to eliminate issues of fact as to whether defendant Turner was one of the parties tasked with placing elevator ramps on unfinished floors to close the gap between the doors and the floor, removing the ramps to allow flooring installation, or coordinating elevator access (see Nicholson v. Sabey Data Ctr. Props., LLC, 205 A.D.3d 620, 622, 169 N.Y.S.3d 292 [1st Dept 2022] ).  The remaining defendants also failed to establish their freedom from negligence as their precise roles, if any, in the construction projects remain unclear.

Turning to defendants’ third-party claims against B & G, the contractual indemnification claims should have been dismissed because plaintiff's only remaining causes of action for common-law negligence and Labor Law § 200 necessarily contemplate negligence on defendants’ part (see General Obligations Law § 5–322.1[1];  Correia v. Professional Data Mgt., 259 A.D.2d 60, 65, 693 N.Y.S.2d 596 [1st Dept 1999] ).  Further, defendants’ common-law indemnification and contribution claims are deemed abandoned as they did not address those claims in either their opposition to B & G's motion for summary judgment dismissing the claims or in their respondents’ brief on this appeal (see Gobind v. Nercessian, 227 A.D.3d 464, 465, 209 N.Y.S.3d 402 [1st Dept 2024] ).

Finally, the motion to dismiss third-party B & G's counterclaims against defendants should be granted, because B & G did not oppose dismissal of those claims in Supreme Court and expressly fails to do so on defendants’ appeal.