DIANA SUCONOTA v. CONSTRUCTION USA INC (2026)

The following e-filed documents, listed by NYSCEF document number (Motion 003) 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 132, 134 were read on this motion to/for JUDGMENT - SUMMARY.

The following e-filed documents, listed by NYSCEF document number (Motion 004) 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 131, 133, 135 were read on this motion to/for JUDGMENT - SUMMARY.

Plaintiffs commenced this action after Plaintiff Raul Suconota sustained injuries while working on a renovation project at 215 West 75 Street while employed by S M Construction USA Inc. ("S&M"). On September 20, 2021, Plaintiff Raul Suconota was disassembling exterior pipe scaffolding that was erected as part of a building façade renovation. As he was handing metal scaffolding platforms down to co-workers below him, a metal platform fell suddenly and without warning from above and struck him in the head, neck, and back. Plaintiffs maintain that Defendants failed to provide proper safety equipment to ensure the platform that fell was properly secured and that Plaintiff was properly protected.

In Motion Sequence 003, Plaintiffs move for summary judgment on their Labor Law § 240(1) claim against Defendant 215 W 75th St. Owners Corp. ("Defendant 215 W 75"), owner of the property located at 215 W. 75th Street.¹ In Motion Sequence 004, Defendant 215 moves for summary judgment, seeking dismissal of Plaintiff's Labor Law §§ 240(1), 241(6), 200, and common law negligence claims, as well as Plaintiff Diana Suconota's claim for loss of consortium.

To prevail on a motion for summary judgment pursuant to CPLR § 3212, the movant must tender sufficient evidence to establish the absence of any material issue of fact and the right to entitlement to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320, 323 [1986]). Once the movant submits competent proof demonstrating that there is no substance to its opponent's claims and no disputed issues of fact, the opponent, in turn, is required to "lay bare [its] proof and come forward with some admissible proof that would require a trial of the material questions of fact on which [its] claims rest" (Ferber v Sterndent Corp., 51 NY2d 782, 783 [1980]). The party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted (see Dauman Displays, Inc. v Masturzo, 168 AD2d 204, 205 [1st Dept 1990]).

i. Plaintiffs' Labor Law § 240(1) claim.

Labor Law § 240(1) provides,

"All contractors and owners and their agents...in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."

Labor Law § 240(1) imposes absolute liability upon owners, contractors, and their agents where a breach of this statutory duty proximately causes an injury (Arias v Brooks Holdings Corp., 255 NY3d 221, 226-27 [1st Dept 2026]). "[T]he reach of Labor Law 240(1) is limited to such specific gravity-related accidents as [a worker] falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured" (Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 7 [2011] [internal quotations and citations omitted]). "The single decisive question 'center[s] around a core premise: that a defendant's failure to provide workers with adequate protection from reasonably preventable, gravity related accidents will result in liability' " (Rivas v Seward Park Housing Corporation, 219 AD3d 59, 64 [1st Dept 2023] [quoting Wilinski, 18 NY3d at 7]).

Labor Law § 240(1) "evinces a clear legislative intent to provide exceptional protection for workers against the special hazards that arise when the work site either is itself elevated or is positioned below the level where materials or load[s] are hoisted or secured" (Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494,500-01 [1993] [internal quotations and citations omitted]; see also Buckley v Columbia Grammar and Preparatory, 44 AD3d 263, 267 [1st Dept 2007]).

New York courts have also clarified that Labor Law § 240(1) applies not only where an object falls from a great height, but also in cases where "the weight of the object and the amount of force it was capable of generating, even over the course of a relatively short descent" is substantial enough that the "elevation differential involved cannot be viewed as de minimis." (Runner v New York Stock Exch., Inc., 13 NY3d 599, 605 [2009]); see also Wilinski v 334 East 92nd Housing Development Fund Corp., 18 NY3d 1, 10 [2011]). "[T]here is no bright-line minimum height differential that determines whether an elevation hazard exists" (Palumbo v Citigroup Technology, Inc., 240 AD3d 455, 456 [1st Dept 2025] quoting Haskins v Metropolitan Transp. Auth., 227 AD3dd 409, 409 [1st Dept 2024]).

Plaintiffs move for summary judgment on their Labor Law § 240(1) claim against Defendant 215 W 75 (Motion Sequence 003). Plaintiffs argue that Defendant 215 W 75 failed to provide proper safety and hoisting equipment to ensure the platform was properly secured so that it could be lowered safely.

In his deposition, Plaintiff testified that he was working on a scaffold between the 10th to the 12th floors of the building, and that others were performing work stationed above him (Plaintiff's Deposition Transcript, NYSCEF Doc. No. 122 at 75:20-25). Plaintiff testified that after handing a platform down to a co-worker and standing back up, "the platform fell and hit my neck and hit my left shoulder" (Plaintiff's Deposition Transcript, NYSCEF Doc. No. 122 at 92:19-25). Plaintiff also testified that the platforms weighed between 15 and 50 pounds each and were passed down the scaffold by coworkers by hand, without safety or hoisting equipment (id. at 87:11-17 and 21-23). Plaintiff alleges injuries to his brain, head, neck, spine, shoulder, mental functioning, and mental health (Plaintiff's Third Supplemental Bill of Particulars, NYSCEF Doc. No. 119).

Defendant 215 W 75 concedes that the safety devices enumerated under Labor Law § 240(1), including "scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices" were not provided in Plaintiff's work (Defendant 215 W 75's Affirmation of Counsel, NYSCEF Doc. No. 129 at ¶ 14).

Plaintiff has sufficiently established his Labor Law § 240(1) claim, and his motion for summary judgment is granted. Plaintiff has submitted evidence to establish that he was conducting elevated work, as he was working at least 10 floors high and was positioned below work that was going on above him. Defendant 215 W 75, as owner of the premises, failed to provide safety devices while Plaintiff and other workers were transporting the scaffold platforms, and such failure caused a platform to fall on Plaintiff, and caused significant injuries to Plaintiff. As owner of the premises, Defendant 215 W 75 is strictly liable for the failure to provide safety devices under Labor Law § 240(1).

While Defendant 215 W 75's motion for summary judgment and dismissal of Plaintiffs' Labor Law § 240(1) claim (Motion Sequence 004) is denied following the Court's grant of summary judgment to Plaintiff, Defendant 215 W 75 argued that the statute is inapplicable given the lack of a significant height differential, and a lack of evidence to suggest that a safety device would have prevented the platform from falling because the actions of Plaintiff's co-worker caused the accident. Defendant 215 W 75 maintains that Plaintiff Raul Suconota's injury was caused by an "ordinary construction site risk and not from the type of elevation-related risk that required use of one of the safety devices enumerated under Labor Law § 240" (Defendant 215 W 75's Affirmation in Opposition, NYSCEF Doc. No. 129 at 2-3).

However, Defendant 215 W 75 failed to establish that it is entitled to summary judgment on Plaintiff's Labor Law § 240(1) claim because: the lack of a significant height differential, by itself, is insufficient to render Labor Law § 240(1) inapplicable (see Runner, 13 NY3d at 605; Wilinski, 18 NY3d at 10); the actions of Plaintiff's co-worker do not necessarily render Labor Law § 240(1) inapplicable (Iuculano v City of New York, 214 AD3d 535, 536 [1st Dept 2023] [finding that whether "one of [plaintiff's] coworkers lost his grip is irrelevant, as people are not safety devices within the meaning of Labor Law § 240[1]] [internal citations omitted]); and because Plaintiff's injury was not an ordinary construction site risk that did not require use of a safety device (see Ross, 81 NY2d at 500-01 [Labor Law § 240(1) applies "when the work site either is itself elevated or is positioned below the level where materials or load[s] are hoisted or secured"]). Defendant 215 W 75's motion for summary judgment on Plaintiff's Labor Law § 240(1) claim is denied.

ii. Plaintiffs' Labor Law § 241(6) claim.

A viable claim under Labor Law § 241(6) requires that a violation of the Industrial Code be shown, where said violation is a proximate cause of the Plaintiff's injury (see Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 501-02 [Ct App 1993]; see also Ares v State, 80 NY2d 959 [Ct App 1992]).

Defendant 215 W 75 moves for summary judgment on Plaintiffs' Labor Law § 241(6) claim. While Plaintiff originally cited several Industrial Code violations to implicate Labor Law § 241(6) Plaintiffs only oppose dismissal of one Industrial Code violation: Industrial Code § 23-1.7(a)(1). As such, the other Industrial Code violations originally cited by Plaintiffs are deemed abandoned and are dismissed.²

Industrial Code § 23-1.7(a)(1), regarding overhead hazards, reads,

Every place where persons are required to work or pass that is normally exposed to falling material or objects shall be provided with suitable overhead protection. Such overhead protection shall consist of tightly laid sound planks at least two inches thick full size, tightly laid three-quarter inch exterior grade plywood or other material of equivalent strength. Such overhead protection shall be provided with a supporting structure capable of supporting a loading of 100 pounds per square foot.

The First Department has held that Industrial Cose 23-1.7(a)(1) does not apply when "an object unexpectedly falls on a worker in an area not normally exposed to such hazards" (Buckley, 44 AD3d at 257). Whether an area is one that is "normally exposed to falling material or objects" within the meaning of Industrial Code 23-1.7(a)(1) is a question of fact (Peters v Structure Tone, Inc., 204 AD3d 522, 524 [1st Dept 2022]). When an expert affidavit is provided in support of summary judgment on a Labor Law 241(6) claim predicated on Industrial Code 23-1.7(a)(1), the Court may reject the affidavit if "[the expert] did not examine the [construction site] premises" (Garcia v DPA Wallace Ave. I, LLC, 101 AD3d 415, 416 [1st Dept 2012]).

Defendant 215 W 75 argues that Industrial Code 23-1.7(a)(1) does not apply because the location of Plaintiff Raul Suconota's injury is not an area "that is normally exposed to falling material or objects." Defendant 215 W 75 provides no caselaw in support of their argument. Rather, Defendant 215 W 75 point out that Mr. Interian, a professional engineer, stated in his Affirmation that the area was one where "the dismantling of the scaffold was an active and controlled process, not an ongoing hazardous condition requiring overhead protection" (Interian Affirmation, NYSCEF Doc. No. 112 at 10). Put simply, Defendant 215 W 75 states that there is no "history of material falling from above" that would necessitate overhead protection under Industrial Code § 23-1.7(a).

Plaintiffs counter that Defendant 215 W 75 has failed to establish that the area is not one normally exposed to falling material or objects, especially in light of Defendant 215 W 75's assertion that the metal plank falling on Plaintiff Raul Suconota was an ordinary risk of a construction site. Plaintiff cites to Baptiste v RLP-East, LLC, which found that "the pass through opening to the floor above should have been covered" was an area normally exposed to falling material or objects (182, AD3d 444, 445 [1st Dept 2020]).

Defendant 215 W 75 has failed to conclusively establish that the site of Plaintiff's injury was not an area "normally exposed to falling materials or objects" under Industrial Code § 23-1.7(a). While Defendant 215 W 75 submits Mr. Interian's Affirmation, his opinion that "[t]he dismantling of the scaffold was an active and controlled process, not an ongoing hazardous condition requiring overhead protection" was based upon a review of the record, and "knowledge and experience in the construction industry" (Interian Affirmation, NYSCEF Doc. No.112 at ¶ 3). As Mr. Interian did not examine the premises, his Affirmation is not dispositive.

As the party opposing summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted, Plaintiff has raised a triable issue of fact as to whether the area at issue was one that is "normally exposed to falling materials or objects under Industrial Code § 23-1.7(a). Defendant 215 W 75's motion for summary judgment as to Plaintiff's Labor Law § 241(6) claim is therefore denied.

iii. Plaintiffs' Labor Law § 200 and common law negligence claims.

Labor Law § 200 codifies the common law duty of an owner to provide construction workers with a safe place to work (See Comes v New York State Elec. and Gas Corp., 82 NY2d 876, 877 [1993]). Labor Law § 200 and common law claims fall under two categories: "those arising from an alleged defect or dangerous condition existing on the premises and those arising from the manner in which the work was performed" (Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139, 133-144 [1st Dept 2012]). Under the first group, the owner had to have either created the condition or have actual or constructive notice of it (id. at 144). In the second category, the owner or general contractor is liable if "it actually exercised supervisory control over the injury-producing work" (id.).

Defendant 215 W 75 moves for summary judgment on Plaintiff's Labor Law § 200 and common law negligence claims. Defendant 215 W 75 states that it did not control the means or methods of Plaintiff's work as required for liability to attach under Labor Law § 200 (Defendant 215 W 75's Affirmation, NYSCEF Doc. No. 98 at ¶ 47; see also Interian Affirmation, NYSCEF Doc. No. 112 at ¶ 8). Instead, Defendant 215 W 75 points out that Plaintiff Raul Suconota testified in his deposition that he was working under the exclusive control of his employer, S&M, and that "all of [his] work instructions [were] from S[&]M and from Manuel [S&M foreman]," and that he was unaware of another contractor working on the job site that day other than S&M (id. at 5; see also Plaintiff's Deposition Transcript, NYSCEF Doc. No. 106 at 106:16-23). As such, Defendant 215 W 75 states that they did not control the means or methods of Plaintiff's work, and are not liable under Labor Law § 200 for failure to exercise the requisite direction, supervision, or control over Plaintiff.

Defendant 215 W 75 also asserts that they did not create the hazardous condition or have actual or constructive notice of the condition, because they did not exercise supervisory control, did not supply the tools involved in the work, and did not have a representative present at the subject premises on the day of Plaintiff Raul Suconota's accident.

Defendant 215 W 75 points to Plaintiff's deposition, wherein he testified that he had no knowledge of another contractor working at the job on the day of the accident, other than his employer (Plaintiff's Deposition Transcript, NYSCEF Doc. No. 106 at 106:16-20). Plaintiffs have not opposed Defendant 215 W 75's motion for summary judgment and dismissal as to Labor Law § 200 and common law negligence.³ As such, Defendant 215 W 75's motion for summary judgment as to these causes of action is granted.

iv. Plaintiffs' loss of consortium claim.

A claim for loss of consortium is a derivative one, in that if the injured spouse's claims fail, then so must the claim for loss of consortium (Kaisman v Hernandez, 61 AD3d 565, 566 [1st Dept 2009]).

Defendant 215 W 75 moves for summary judgment and dismissal of Plaintiff Diana Suconota's claim for loss of consortium. Defendant 215 W 75's sole argument is that because the above Labor Law and common law claims must be dismissed, then so must Plaintiff Diana Suconota's claim for loss of consortium.

Given that the Court is not granting dismissal of all of Plaintiffs' claims, Defendant 215 W 75's motion for summary judgment relating to Diana Suconota's claim for loss of consortium is denied. Plaintiffs' loss of consortium claim is not independent because it is derivative of the Labor Law § 240(1) cause of action. Defendant 215 W 75 has failed to establish, as a matter of law, that it is entitled to summary judgment on Plaintiff Diana Suconota's claim for loss of consortium.

Accordingly, it is hereby

ORDERED that Plaintiffs' motion for summary judgment as to his Labor Law § 240(1) claim is granted; and it is further

ORDERED that the Defendant 215 W. 75 St. Owners Corp.'s motion for summary judgement is granted in that Plaintiffs' Labor Law § 200 and common law negligence claims are dismissed; and it is further

ORDERED that Defendant 215 W. 75 St. Owners Corp.'s motion for summary judgment and dismissal as to Plaintiffs' Labor Law §§ 240(1), 241(6), and loss of consortium claims is denied.

The foregoing constitutes the decision and order of the Court.

DATE 7/8/2026

LESLIE A. STROTH, J.S.C.

FOOTNOTES

1.   Pursuant to the Stipulation of Discontinuance, dated November 29, 2023, Defendant 215 Majestic LLC is discontinued from this case (NYSCEF Doc. No.78).

2.   The following Industrial Code provisions are dismissed in accordance with the above: Industrial Code §§ 23-1.5, 23-1.7(a)(2) et seq., 23-1.8, 23-1.30, 23-1.32, 23-1.33(a), 23-2.2, 23-2.5(a), 23-2.6(a), 23-8.1, 23-3.2, 23-3.3, 23-3.4, 23-6.1, 23-6.3(a), and 23-9.8.

3.   Plaintiffs' Opposition states, "Plaintiff takes no position on the motion insofar as it seeks dismissal of the Labor Law § 200 cause of action (NYSCEF Doc. No. 131 at 2)

Leslie A. Stroth, J.