INTRIAGO v. 18TH HIGHLINE ASSOCIATES LLC (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Devin P. Cohen, J.), dated October 1, 2024.  The order granted the plaintiff's motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1), denied the defendants' cross-motion for summary judgment dismissing the complaint, and granted the plaintiff's cross-motion pursuant to CPLR 3126 to preclude the defendants from introducing at trial or relying on in opposition to or in support of any motion for summary judgment the testimony or affidavit of a nonparty witness.

ORDERED that the order is affirmed, with costs.

The plaintiff allegedly was injured when he fell from a stack of doors at a construction site.  The plaintiff commenced this personal injury action against the owners of the premises and the general contractor, alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6).  The note of issue was filed on October 5, 2023.

In December 2023, the plaintiff moved for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1).  In support of his motion, the plaintiff submitted, inter alia, a transcript of his deposition testimony.  The plaintiff testified that he was directed by a supervisor to move a stack of doors, piled approximately seven feet high, and other garbage to a container, and that there was approximately two to three feet of snow covering the top of the stack of doors.  He further testified that a supervisor directed him to climb on top of the stack of doors to remove the snow and that his request for a ladder was denied.  The plaintiff testified that he climbed onto the stack and removed the snow, and while he was climbing down the stack, the doors moved, causing him to fall onto debris and the ground.

In March 2024, the defendants cross-moved for summary judgment dismissing the complaint.  In support of their cross-motion and in opposition to the plaintiff's motion, the defendants submitted, among other things, an affidavit of nonparty Ricardo Morales, a supervisor on the construction project, which contradicted portions of the plaintiff's version of events.

The plaintiff then cross-moved pursuant CPLR 3126 to preclude the defendants from introducing at trial or relying on in opposition to or in support of any motion for summary judgment the testimony or affidavit of Morales, arguing that the identity of Morales as a witness was not previously disclosed, despite multiple court orders requiring such disclosure.  In an order dated October 1, 2024, the Supreme Court granted the plaintiff's motion and cross-motion and denied the defendants' cross-motion as untimely.  The defendants appeal.

When a party “wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to [CPLR article 31], the court may make such orders with regard to the failure or refusal as are just” (id.), including precluding a party from using certain witnesses (see id. § 3126[2] ).  Before a court invokes the drastic remedy of preclusion, there must be a clear showing that the failure was willful and contumacious (see Huseinovic v. Lee Wilson Mgt., LLC, 230 AD3d 577, 579;  Llanos v Casale Constr.  Servs., Inc., 188 AD3d 864, 865).  “The willful or contumacious character of a party's conduct can be inferred from the party's repeated failure to respond to demands or to comply with discovery orders and the absence of a reasonable excuse for these failures” (Huseinovic v. Lee Wilson Mgt., LLC, 230 AD3d at 579;  see Llanos v Casale Constr.  Servs., Inc., 188 AD3d at 865).

Resolution of discovery disputes and the nature and degree of the penalty to be imposed pursuant to CPLR 3126 are matters within the sound discretion of the motion court (see Huseinovic v. Lee Wilson Mgt., LLC, 230 AD3d at 579;  Llanos v Casale Constr.  Servs., Inc., 188 AD3d at 865).  Absent an improvident exercise of discretion, the determination to impose sanctions for conduct that frustrates the purpose of the CPLR should not be disturbed (see Llanos v Casale Constr.  Servs., Inc., 188 AD3d at 865;  Madonna Mgt. Servs., Inc. v. R.S. Naghavi, M.D., PLLC, 172 AD3d 845, 847).

Here, the Supreme Court did not improvidently exercise its discretion in inferring the willful and contumacious nature of the defendants' conduct based on their failure to disclose Morales's identity until they submitted his affidavit in opposition to the plaintiff's motion for summary judgment and in support of their cross-motion for summary judgment, notwithstanding the plaintiff's discovery demand and court orders directing the defendants' response, including a final order warning that the failure to provide the requested disclosure would result in preclusion (see Smith v. Usman, 218 AD3d 705, 707;  Llanos v Casale Constr.  Servs., Inc., 188 AD3d at 866;  Williams v. New York City Tr. Auth., 57 AD3d 975, 976;  Frenk v. Frederick, 38 AD3d 593;  see also Jordan v Eureka Christian Fellowship, Inc., 242 AD3d 846).  Accordingly, the court properly granted the plaintiff's cross-motion pursuant CPLR 3126 to preclude the defendants from introducing at trial or relying on in opposition to or in support of any motion for summary judgment the testimony or affidavit of Morales.

Contrary to the defendants' contention, the Supreme Court did not improvidently exercise its discretion in denying, as untimely, those branches of their cross-motion which were for summary judgment dismissing the causes of action alleging common-law negligence and violations of Labor Law §§ 200 and 241(6).  Pursuant to CPLR 3212(a), courts have “considerable discretion to fix a deadline for filing summary judgment motions” (Brill v. City of New York, 2 NY3d 648, 651).  The defendants' cross-motion was made several months after the expiration of the deadline imposed by the court (see Munoz v. Agenus, Inc., 207 AD3d 643, 644), and the defendants failed to demonstrate good cause for the untimely cross-motion (see Wittenberg v. Long Is. Power Auth., 225 AD3d 730, 732;  Dojce v. 1302 Realty Co., LLC, 199 AD3d 647, 650).  “However, an untimely motion or cross motion for summary judgment may be considered by the court where a timely motion was made on nearly identical grounds” (Wittenberg v. Long Is. Power Auth., 225 AD3d at 732 [alteration and internal quotation marks omitted] ).  Since the plaintiff timely moved for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1), the court should have considered that branch of the defendants' cross-motion which was for summary judgment dismissing that cause of action (see Wittenberg v. Long Is. Power Auth., 225 AD3d at 733;  Sheng Hai Tong v. K & K 7619, Inc., 144 AD3d 887, 890).  In any event, as discussed below, that branch of the cross-motion was properly denied on the merits.

“Labor Law § 240(1) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites” (McCarthy v. Turner Const., Inc., 17 NY3d 369, 374;  see Rojas v. 616 First Ave., LLC, 245 AD3d 750, 751).  To prevail on a cause of action alleging a violation of Labor Law § 240(1), a plaintiff must prove that the defendant violated the statute and that such violation was a proximate cause of his or her injuries (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287;  Von Hegel v. Brixmor Sunshine Sq., LLC, 180 AD3d 727, 728).

Here, the plaintiff met his prima facie burden of demonstrating a violation of Labor Law § 240(1) and that this violation was a proximate cause of his injuries by submitting a transcript of his deposition testimony, in which he testified that he was instructed to climb on top of a stack of doors approximately seven feet high and that he was not provided with any safety devices to keep him from falling (see Bustamante v. BSD 370 Lexington, L.L.C., 247 AD3d 710, 711;  Phillip v 525 E. 80th St. Condominium, 93 AD3d 578, 579;  Naughton v. City of New York, 94 AD3d 1, 8;  Ford v. HRH Const.  Corp., 41 AD3d 639, 640–641).  In opposition, the defendants failed to raise a triable issue of fact.  Accordingly, the Supreme Court properly granted the plaintiff's motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1), and for the same reasons, the defendants were not entitled to summary judgment dismissing that cause of action.

IANNACCI, J.P., BRATHWAITE NELSON, LANDICINO and GOLDBERG VELAZQUEZ, JJ., concur.