SORTO v. << (2026)

 _ [And Another Third–Party Action].  

. 160601/21 595072/22 595771/22 595272/24

Chirico Law PLLC, Brooklyn (Vincent Chirico of counsel), for Saudy Adonay Alberto Sorto, respondent.

Litchfield Cavo LLP, New York (Hak Seop Kim of counsel), for One team Restoration Inc., respondent.

Order, Supreme Court, New York County (Lyle E. Frank, J.), entered on or about February 26, 2026, which, to the extent appealed from as limited by the briefs, denied the motion made by defendant New York Funeral Chapels, LLC doing business as Riverside Memorial Chapel's (Riverside) for summary judgment dismissing plaintiff's Labor Law §§ 200 and 241(6) claims as against it, and for conditional contractual indemnification from second third-party defendant OneTeam Restoration Inc., unanimously modified, on the law, to dismiss as abandoned plaintiff's claims predicated on Industrial Code provisions other than Industrial Code (12 NYCRR) §§ 23–1.7(e)(1) and (2);  grant the motion for summary judgment dismissing the Labor Law § 200 claim and § 241(6) claim predicated on 12 NYCRR 23–1.7(e)(1);  grant Riverside conditional contractual indemnification as against OneTeam, and otherwise affirmed, without costs.

Plaintiff and his coworker were working on the façade of Riverside's building, removing and replacing bricks and window lintels, when plaintiff tripped over two or three discarded bricks that were left on the surface of the suspended scaffold on which plaintiff was working.  The suspended scaffold was positioned alongside the seventh floor of the building at the time of plaintiff's accident.  Plaintiff and his coworker began work atop the scaffold about 90 minutes prior to the accident.

As to the Labor Law § 241(6) claim, plaintiff's unaddressed challenges to Industrial Code provisions are deemed abandoned (see Murphy v. Schimenti Constr.  Co., LLC, 204 AD3d 573, 574 [1st Dept 2022] ).

The court should have granted the motion for summary judgment dismissing the Labor Law § 241(6) claim predicated on 12 NYCRR 23–1.7(e)(1) in the absence of proof that the scaffold constituted a passageway, defined as a “walkway or pathway used to traverse between discrete areas as opposed to an open area” (Smith v. Extell W. 45th LLC, 230 AD3d 1044, 1045 [1st Dept 2024] [internal quotation marks omitted] ).

to safely perform his work (see Zyskowski v. Chelsea–Warren Corp., 238 AD3d 498, 501 [1st Dept 2025] ).

Plaintiff's Labor Law § 200 claim was predicated on a dangerous premises condition.  Riverside established prima facie that it did not create the dangerous condition or have actual or constructive notice of it (see Venezia v. LTS 711 11th Ave., 201 AD3d 493, 494 [1st Dept 2022];  Zyskowski, 238 AD3d at 499–500).  In opposition, plaintiff offered no evidence to show Riverside had actual or constructive knowledge of the brick hazard he tripped over, which was on a scaffold, seven floors up, and on the exterior face of the building.

Riverside established its entitlement to conditional summary judgment on its claim for contractual indemnification against OneTeam.  The broad indemnification language was triggered because plaintiff's injury arose out of the work, which had been sub-subcontracted by OneTeam to Magella Construction Corp. Further, the record showed that plaintiff's trip

fall accident was caused by the failure of OneTeam and/or Magella to make adequate arrangements for the workers atop the scaffold to safely and efficiently dispose of bricks removed from the building's façade (see Moreno–Santos v. Real Bldrs.  Inc., 248 AD3d 479, 480–481 [1st Dept 2026];  Cackett v. Gladden Props., LLC, 183 AD3d 419, 421–422 [1st Dept 2020] ).