MEMA v. PROCIDA CONSTRUCTION CORP (2026)

Order, Supreme Court, Bronx County (Myrna Socorro, J.), entered on or about May 15, 2025, which, to the extent appealed from, denied defendant's motion for summary judgment dismissing plaintiff's common-law negligence and Labor Law §§ 200 and 240(1) claims and granted plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim, unanimously modified, on the law, without costs, to the extent of denying plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim, and otherwise affirmed, without costs.

Supreme Court properly denied defendant's motion for summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims.  Defendant failed to make a prima facie showing that it did not exercise supervisory control over plaintiff's work (see Cappabianca v. Skanska USA Bldg. Inc., 99 A.D.3d 139, 144, 950 N.Y.S.2d 35 [1st Dept. 2012].  In support of its motion, Procida submits the depositions of plaintiff and of Keron Philips, its assistant project manager.  Mr. Philips testified that he did not supervise Master Craft's workers and that he did not observe anyone else from Procida doing so.  However, he acknowledged that other Procida foreman were in the field while work was being performed, and that his boss, Rich Rendals, the senior project manager, was in the field two to three times per day.  Plaintiff testified that he was instructed by his supervisors, “Richie and Howie” to move the beam by hand.  After that, plaintiff was asked, “And Richie and Howie are both your supervisors with Master Craft?” and he answered “yes.”

Procida relies solely on this question and answer to support its claim that it did not exercise supervision over plaintiff.  However, this response by plaintiff is at best ambiguous for several reasons.  First, it is unclear whether plaintiff meant that Richie and Howie were his supervisors while he was working at Master Craft or that they were employed by Master Craft.  Secondly, Mr. Philips testified that Master Craft's foreman was named Howie but did not state that Master Craft also had a foreman named Rich, so it is an open question whether the “Richie” whom plaintiff identified worked for Master Craft.  Finally, Procida could have easily avoided any ambiguity by supporting its motion with an affidavit from Mr. Rendals stating, if it is true, that he did not supervise plaintiff and that plaintiff was supervised by a foreman at Master Craft named Rich. Accordingly, Procida did not establish that it had no supervisory control over plaintiff.  Therefore, we affirm Supreme Court's denial of Procida's motion for summary judgement as to plaintiff's Labor Law § 200 and common-law negligence claims.

Supreme Court should have denied plaintiff's motion for summary judgment on his Labor Law § 240(1) claim.  Plaintiff established prima facie that he was injured due to a “failure to provide adequate protection against a risk arising from a physically significant elevation differential” when a 400–pound beam he was carrying fell 8 to 10 inches onto his foot (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];  see Villanueva v. 114 Fifth Ave. Assoc. LLC, 162 A.D.3d 404, 405, 78 N.Y.S.3d 87 [1st Dept. 2018] ).  However, defendant raised an issue of fact by pointing to plaintiff's testimony that the accident was also caused by his foot slipping on a wet floor within a split second of the beam falling, and that he did not know which happened first (see Jackson v. Hunter Roberts Constr. Group, LLC, 161 A.D.3d 666, 667, 78 N.Y.S.3d 310 [1st Dept. 2018];  Carrera v. Westchester Triangle Hous. Dev. Fund Corp., 116 A.D.3d 585, 585, 984 N.Y.S.2d 339 [1st Dept. 2014] ).  Because of the existence of these issues of fact, Supreme Court should have denied plaintiff's motion for partial summary judgment as to the Labor Law § 240(1) claim.