Kevin Steve Biba Orellana, Plaintiff, v. 775 LLC SCIAME CONSTRUCTION LLC AND WEIR WELDING COMPANY INC (2026)

As required by CPLR 2219 (a), the following e-filed documents, listed by NYSCEF document numbers, were considered on this motion: 212—251, 254—271, 273, 275—302.

Upon the foregoing papers, plaintiff's motion for summary judgment on his Labor Law § 240 (1) claim (Seq. 010), defendant/third-party defendant's motion for summary judgment (Seq. 011), and plaintiff's motion to dismiss defendants' affirmative defense and counter-claim for fraud (Seq. 012) are decided as follows:

Introduction & Factual Background

Plaintiff commenced this action to recover for damages he claims to have sustained on September 22, 2021 while performing steel work at 775 Washington Street, New York, NY. It is undisputed that 775 Washington OPCO LLC (Washington or Owner) owned the premises, and that Sciame Construction, LLC (Sciame) was the general contractor. Sciame sub-contracted with Weir to perform steel work at the premises, and Weir sub-sub-contracted with CEC to perform that work. CEC employed the plaintiff.

The underlying facts of this action are essentially undisputed. Plaintiff and ten to twelve co-workers were moving a rectangularly-shaped beam across a construction site. The beam was also called a "tube" by workers at the premises (Orellana first EBT at 152). The beam was 25 feet long and two feet wide. Plaintiff estimated that the beam weighed between 3000 and 4000 pounds (Orellana EBT at 92—94). The workers used an A-frame cart to transport the beam. The beam was resting on the cart and was neither tied nor strapped down. The cart was approximately four feet long and two feet wide. While pushing the cart across the site, the cart stopped abruptly, and the beam fell off of the cart onto plaintiff's ankle. After the incident, plaintiff testified that he heard "from everybody that was there" that a wheel of the cart struck a piece of plywood; however, plaintiff could not identify who told him how the incident occurred (id. at 127—128). Plaintiff did not recall seeing the plywood before the incident (id. at 126—127).

Analysis

On a motion for summary judgment, the moving party bears the initial burden of making a prima facie showing that there are no triable issues of material fact (Giuffrida v Citibank, 100 NY2d 72, 81 [2003]). Once a prima facie showing has been established, the burden shifts to the non-moving party to rebut the movant's showing such that a trial of the action is required (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]).

As an initial matter, Weir argues that it is not a proper Labor Law defendant because it was not an agent of the owner or the general contractor. However, Weir was hired to perform the work and then sub-sub-contracted with third-party defendant CEC to perform that work. Weir's contract with Sciame confers on Weir "primary responsibility and liability with respect to the protections of its work" (Sciame-Weir contract at ¶ 52). The contract further obligates Weir to "supervise and direct [its] Subcontractor's Work [sic]" (id. at ¶ 4.1.2). This responsibility makes Weir an agent of Sciame, and therefore establishes that Weir is a statutory defendant under the Labor Law (see Weekes v Tishman Technologies Corporation, 238 AD3d 948, 952 [2d Dept 2025]).

Labor Law § 240 (1)

Liability under Labor Law § 240 (1) is "absolute" where the failure or absence of a safety device enumerated by the statute is a proximate cause of the plaintiff's accident (Blake v Neighborhood Hous. Services of New York City, Inc., 1 NY3d 280, 287 [2003] [citing Haimes v. New York Tel. Co., 46 NY2d 132, 136 (1978) and Ross v Curtis-Palmer HydroElec. Co., 81 NY2d 494, 500 (1993)]). In order to recover for an injury caused by a falling object, a plaintiff must show that the object was being hoisted, secured, or required securing for the purpose of the undertaking (Narducci v Manhasset Bay Assoc., 96 NY2d 259 [2001]).

Here, "given the heavy weight of the [beam] and the amount of force it was capable of generating, the elevation differential was not de minimis" (Davila v City of New York, 232 AD3d 580, 582 [2d Dept 2024]; see also Wilinski v 334 East 92nd Housing Development Fund Corp., 18 NY3d 1, 9—10 [2011]; Gonzalez v Madison Sixty, LLC, 216 AD3d 1141 [2d Dept 2023]; McCallister v 200 Park, L.P., 92 AD3d 927, 928—929 [2d Dept 2012]). Although Labor Law § 240 (1) claims often do not require an expert to establish liability, here, the affirmation from Kathleen Hopkins, plaintiff's site safety expert, is illuminating because it details the safety devices that should have been used to secure the beam while it was being transported in light of its extraordinary weight. Ms. Hopkins opined that the beam should have been transported via a "mobile gantry crane . . . or low flat-wheeled dollies," or that the beam should have been secured to the cart with "stays, slings, blocks, braces, irons, ropes," or other securing devices (Hopkins aff. at ¶¶ 12—13). The absence of these safety devices constitutes a prima facie violation of Labor Law § 240 (1).

The weight of the object here also differentiates this case from Ramos and Laliashvili, where the plaintiffs were struck by objects (sheetrock and glass panels, respectively) that fell from A-frame carts (Ramos v Kent & Wythe Owners, LLC, 236 AD3d 693, 694 [2d Dept 2025]; Laliashvili v Kadmia Tenth Ave. SPE, LLC, 221 AD3d 988, 990—991 [2d Dept 2023]). Upon review of the underlying testimony in Ramos, the plaintiff was unable to testify to either the quantity or the weight of the sheetrock that fell onto him. Similarly, in Laliashvili, the plaintiff was struck by two to four sixty-pound panels, which means the maximum weight of the load was 240 pounds. Here, plaintiff testified that the beam weighed between 1.5 and 2 tons.

Therefore, given the weight of the object and the failure to adequately secure it for the purpose of the undertaking, plaintiff's motion for summary judgment on his Labor Law § 240 (1) claim is granted; defendants' motion is denied with respect to this claim.

Labor Law § 241 (6)

To prevail on a cause of action pursuant to Labor Law § 241 (6), plaintiff must show that he was (1) on a job site, (2) engaged in qualifying work, and (3) suffered an injury (4) a proximate cause of which was a violation of an Industrial Code provision (Moscati v Consolidated Edison Co. of NY, Inc., 168 AD3d 717, 718 [2d Dept 2019]). Plaintiff substantively opposes only on the basis of Rule 23-1.7 (e), which governs tripping hazards. The court cannot find, and the plaintiff does not cite, any precedent for applying that rule to cases where a worker does not trip or otherwise personally contact the alleged debris, scattered material, or "sharp projection." Since this rule is inapplicable and the plaintiff does not raise any additional arguments, defendants' motion is granted on this issue and plaintiff's Labor Law § 241 (6) claim is dismissed.

Labor Law § 200

Labor Law § 200 is a codification of the common-law duty of landowners and general contractors to provide workers with a reasonably safe place to work" (Pacheco v Smith, 128 AD3d 926, 926 [2d Dept 2015]). Thus, claims for negligence and for violations of Labor Law § 200 are evaluated using the same negligence analysis (Ortega v Puccia, 57 AD3d 54, 61 [2d Dept 2008]).

As an initial note, the plaintiff's papers contain what appear to be multiple "copy and paste" errors, where plaintiff's counsel refers to parties that are not part of this lawsuit and arguments that are not germane to the instant case. Counsel is advised to review and revise submissions to the court with more care in the future.

In the portions applicable to this case, plaintiff argues that the defendants have not demonstrated that they lacked actual or constructive notice of the plywood covering that caused the cart to fail and that the wrong kind of cart was being used to transport the beam. The plaintiff could not identify the declarant of the purported statement that the plywood caused the incident, and there is no admissible evidence that the cart failed due to a dangerous condition. However, it does appear from the record that this method of transporting the beam was dangerously inadequate and that the unsecured beam constituted a dangerous condition of which the defendants either had or should have had notice. Therefore, defendants' motion for summary judgment is denied as to plaintiff's Labor Law § 200 claim.

Indemnification

The right to contractual indemnification is established by the "specific language of the contract" (Dos Santos v Power Auth. of State of New York, 85 AD3d 718, 722 [2d Dept 2011]; quoting George v Marshalls of MA, Inc., 61 AD3d 925, 930 [2d Dept 2009]). "In addition, a party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor" (Anderson v United Parcel Serv., Inc., 194 AD3d 675, 678 [2d Dept 2021]). Although defendants' papers mention common-law indemnification and contribution, there is no substantive argument about these claims contained therein.

Here, as indicated above, there are questions of fact about the Owner and Sciame's negligence. Therefore, they cannot obtain summary judgment on their contractual indemnification claim. This portion of the Owner and Sciame's motion is denied.

Breach of Contract

Weir opposes Owner and Sciame's motion for summary judgment as to their breach of contract claim on the basis that the movants accepted Weir's carrier's tender. In their reply papers, the movants do not address this argument, and there is no other evidence that Weir breached its contractual obligations to obtain insurance. Therefore, Owner and Sciame's motion is denied as to this claim.

Counter-claim and Affirmative Defense predicated on Fraud

"Under CPLR 3211 (a) (7), the applicable test is whether the pleading states a cause of action, not whether the proponent of the pleading, in fact, has a meritorious cause of action . . . The court must determine whether, accepting as true the factual averments of the complaint and according the plaintiff the benefits of all favorable inferences which may be drawn therefrom, the plaintiff can succeed upon any reasonable view of the facts stated" (Board of Educ. Of City School Dist. Of City of New Rochelle v County of Westchester, 282 AD2d 561 [2d Dept 2001]). Defendants' fraud claims are limited to allegedly inflated damages and do not concern the happening of the occurrence. These claims are, therefore, unrelated to the issues of liability decided above.

Allegations of fraud must be pled "in detail," or "with particularity," whether as a cause of action or as a defense (CPLR 3016 [b]; Matter of Clarke v Wallace Oil Co., Inc., 284 AD2d 492, 492—493 [2d Dept 2001]). "The elements of a cause of action sounding in fraud are a material misrepresentation of an existing fact, made with knowledge of the falsity, an intent to induce reliance thereon, justifiable reliance upon the misrepresentation . . . and damages" (Eva Chen Fine Jewelry, Inc. v Recovery Racing IX, LLC, 222 AD3d 840, 842 [2d Dept 2023]).

Ultimately, Owner and Sciame have failed to plead facts sufficient to amount to legally cognizable fraud. The fact that movants are actively litigating this matter "illustrates a lack of reliance on Plaintiffs' allegedly false assertions" (Seaz v Excellent Bus Serv. Inc., 21-CV-6967 (TAM), 2025 WL 990247, at *8 [EDNY Apr. 2, 2025] [emphasis in original]). Mere allegations that a party or claim is what some might colloquially call a "fraud" does not equate to meeting the standard for pleading a legal cause of action.

The Appellate Division, First Department has recently held that precisely this type of amendment is "patently devoid of merit" (Santacruz v 58 Gerry St LLC, 2026 NY Slip Op 00997 [1st Dept Feb. 19, 2026]; see also Breton v Dishi, 234 AD3d 432 [1st Dept 2025], Linares v City of New York, 223 NYS 3d 62 [1st Dept 2024]). These pleadings do not fit within the "staged-accident" rule that appears to be exception to the fraud pleading standard in the Second Department (see Gimenez v Pepsi-Cola Bottling Company of New York, Inc., 234 AD3d 943 [2d Dept 2025]; contra Anguisaca-Morales v St. Paul and St. Andrew United Methodist Church, 238 AD3d 439 [1st Dept 2025]). Movants' arguments in this case are based solely on speculation about plaintiff's associations and subsequent medical treatment. Neither of these is adequate to support movants' legal allegations of fraud.

Finally, the costs of investigation and defense are incidents of litigation, not equivalent to damages arising from detrimental reliance (see Cerciello v Admiral Ins. Brokerage Corp., 90 AD3d 967 [2d Dept 2011]; see also Hollander v Flash Dancers Topless Club, 173 Fed Appx 15, 18 [2d Cir 2006]). Under the American Rule, cost shifting is not the ordinary practice in personal injury litigation, and defendants cannot seek to engage in impermissible fee shifting through inadequately pled claims of fraud (see 214 Wall Street Associates, LLC v Medical Arts-Huntington Realty, 99 AD3d 988 [2d Dept 2012]). Notably, the First Department has held that a fraud claim related to litigation did not accrue until after a settlement or the satisfaction of a judgment (see New York City Tr. Auth. v Morris J. Eisen, P.C., 276 AD2d 78, 85—86 [1st Dept 2000]). Neither has occurred here.

Ultimately, the issue of whether or not plaintiff's treatment was warranted will be decided by a jury at the time of a damages-only trial. Counter-claims for fraud are not the appropriate mechanism for litigating these issues.

Conclusion

Plaintiff's motion for summary judgment on his Labor Law § 240 (1) claim (Seq. 010) is granted.

Defendant/third-party plaintiffs Owner and Sciame's motion for summary judgment (Seq. 011) is granted with respect to plaintiff's Labor Law § 241 (6) claim; the motion is otherwise denied.

Plaintiff's motion to dismiss defendants' affirmative defense and counter-claim for fraud (Seq. 012) is granted.

This constitutes the decision and order of the court.

DATE July 14, 2026

DEVIN P. COHEN

Justice of the Supreme Court

Devin P. Cohen, J.