TOBON v. Glenco Contracting Group, Inc., third-party defendant-respondent. (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Queens County (Karina E. Alomar, J.), entered August 13, 2024, and (2) an order of the same court entered February 18, 2025.  The order entered August 13, 2024, insofar as appealed from, granted that branch of the motion of the third-party defendant which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6).  The order entered February 18, 2025, denied 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).

ORDERED that the order entered August 13, 2024, is affirmed insofar as appealed from;  and it is further,

ORDERED that the order entered February 18, 2025, is affirmed;  and it is further,

ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.

The plaintiff allegedly was injured while performing construction work on premises owned by the defendant third-party plaintiff LS–14 Ave, LLC (hereinafter LS–14).  The defendant third-party plaintiff Ryder Construction, Inc. (hereinafter Ryder), was acting as the general contractor on the project and hired the plaintiff's employer, the third-party defendant, Glenco Contracting Group, Inc. (hereinafter Glenco), as a subcontractor on the project.  At the time of the accident, the plaintiff was placing rubber caps on the end of exposed rebar when he bypassed a safety railing and stepped onto a piece of plywood, which collapsed, causing him to fall approximately 10 to 11 feet into an opening below.

The plaintiff commenced this action against LS–14 and Ryder, alleging, inter alia, violations of Labor Law §§ 240(1) and 241(6).  LS–14 and Ryder commenced a third-party action against Glenco, among other things, for contractual indemnification.  After discovery, Glenco moved, inter alia, for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6).  By order entered August 13, 2024, the Supreme Court, among other things, granted that branch of Glenco's motion.  The plaintiff moved for summary judgment on the issue of liability on the Labor Law § 240(1) cause of action.  By order entered February 18, 2025, the Supreme Court denied the plaintiff's motion.  The plaintiff appeals from both orders.

“Labor Law § 240(1) imposes upon owners, contractors, and their agents a nondelegable duty to provide workers proper protection from elevation-related hazards” (Blachowicz v. City of New York, 241 A.D.3d 1513, 1515, 242 N.Y.S.3d 720 [internal quotation marks omitted];  see Thorpe v. One Page Park, LLC, 208 A.D.3d 818, 820, 174 N.Y.S.3d 430).  “ ‘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’ ” (Lopes v. County of Suffolk, 236 A.D.3d 883, 884, 229 N.Y.S.3d 573, quoting Von Hegel v. Brixmor Sunshine Sq., LLC, 180 A.D.3d 727, 728, 115 N.Y.S.3d 712).  “A plaintiff's intentional or negligent conduct may be the sole proximate cause of the injuries where adequate safety devices are provided as required by the statute, but ‘the worker either does not use or misuses them’ ” (Gamez v. New Line Structures & Dev., LLC, 218 A.D.3d 446, 447, 193 N.Y.S.3d 57, quoting Robinson v. East Med. Ctr., LP, 6 N.Y.3d 550, 554, 814 N.Y.S.2d 589, 847 N.E.2d 1162).

Here, the plaintiff failed to eliminate triable issues of fact as to whether his conduct was the sole proximate cause of the accident.  Specifically, the deposition testimony the plaintiff submitted on his motion raised questions of fact as to whether the safety railing provided proper protection from the elevation-related risk under the circumstances, including, the precise nature of the job the plaintiff was assigned to perform and whether the plaintiff's decision to bypass the safety railing was the sole proximate cause of accident (see id. at 447–448, 193 N.Y.S.3d 57;  Orellana v. 7 W. 34th St., LLC, 173 A.D.3d 886, 887–888, 103 N.Y.S.3d 496).  Since the plaintiff failed to demonstrate his prima facie entitlement to judgment as a matter of law on the issue of liability on the Labor Law § 240(1) cause of action, the Supreme Court properly denied his motion for summary judgment on the issue of liability on that cause of action, without regard to the sufficiency of the opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

As to that branch of Glenco's motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6), the plaintiff argues only that LS–14 and Ryder violated Industrial Code (12 NYCRR) § 23–1.15. However, the plaintiff did not raise the issue of a violation of that Industrial Code provision before the Supreme Court, and thus, this contention is improperly raised for the first time on appeal (see Pontes v. F & S Contr., LLC, 146 A.D.3d 829, 830, 44 N.Y.S.3d 43;  Viera v. WFJ Realty Corp., 140 A.D.3d 737, 739, 31 N.Y.S.3d 613).

IANNACCI, J.P., TAYLOR, LANDICINO and GOLDBERG VELAZQUEZ, JJ., concur.