NOLAND RAMOS JR v. LENDLEASE US CONSTRUCTION LMB INC (2026)

Fabiani Cohen & Hall, LLP, New York (Michael S. Fabiani of counsel), for appellants.

Rosenberg, Minc, Falkoff & Wolff, LLP, New York (Jesse M. Minc of counsel), for respondent.

Order, Supreme Court, Bronx County (Erik L. Gray, J.), entered on or about August 8, 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) and 241(6) causes of action, and denied defendant's cross-motion for summary judgment dismissing the Labor Law § 240(1) cause of action, unanimously modified, on the law, to deny plaintiff's motion for summary judgment on his Labor Law § 240(1) cause of action, and otherwise affirmed, without costs.

Supreme Court properly granted plaintiff's motion for summary judgment on his Labor Law § 241(6) cause of action insofar as predicated on Industrial Code (12 NYCRR) §§ 23–1.7(d) and (f), which require work areas to be kept free from debris and slipping hazards, as well as that workers be provided with a safe means of access between work areas.  Plaintiff established that defendants failed to mitigate the slippery conditions that existed on the stairs at the time of the accident through defendants' photos of the staircase on the date of the accident which showed ice or water on the staircase, as well as the testimony of defendants' site safety manager that there was no record they had salted the stairs on the date of the accident, despite it being their policy to salt icy areas.  In opposition, defendants failed to raise an issue of fact in response (see Musse v Triborough Bridge & Tunnel Auth., 210 AD3d 434, 435 [1st Dept 2022];  Solarte v. Brearley Sch., 238 AD3d 541, 542 [1st Dept 2025] ).

The court also properly determined that any issues with plaintiff's credibility were insufficient to raise an issue of fact as they do not pertain to the accident itself (see Smigielski v Teachers Ins. & Annuity Assn. of Am., 137 AD3d 676, 676 [1st Dept 2016];  cf.  Vargas v. City of New York, 59 AD3d 261, 261 [1st Dept 2009] ).  There is other competent evidence supporting plaintiff's version of the accident, including hospital records from the date of the accident stating that he slipped and fell on ice.

However, the court should have denied plaintiff's motion for summary judgment on his Labor Law § 240(1) cause of action.  Plaintiff testified that the staircase was temporarily erected for the workers, and thus, falls under Labor Law § 240(1) as a safety device.  Defendants, however, raised an issue of fact through the site safety manager's testimony that the staircase was permanent, albeit unfinished, at the time of the accident (see Ryan v. Morse Diesel, Inc., 98 A.D.2d 615, 615–616 [1st Dept 1983] ).  Defendants do not dispute that a staircase that is a permanent appurtenance to the building is considered a safety device for the purposes of Labor Law § 240(1) if it is the sole means of access to and from the work area (see Rivas v Nestle Realty Holding Corp., 188 AD3d 430, 430–431 [1st Dept 2020] ).  Plaintiff failed to establish that the staircase was the sole means of access because he testified that he could have gone up one flight of stairs and then taken the hoist down, which was how he returned to the worksite after his accident.  Even if plaintiff established prima facie that the staircase was the sole means of access, defendants raised an issue of fact through the site safety manager's affidavit, which stated there were additional staircases that plaintiff could have used as well as other hoists in operation at the site at the time of the accident.

We have considered the remaining arguments and find them unavailing.