Jose Angel Lopez, Plaintiff, v. LLC BOP GREENPOINT LLC (2026)

The following e-filed documents, listed by NYSCEF document number (Motion 001) 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 77 were read on this motion to/for JUDGMENT - SUMMARY.

In April of 2022 plaintiff Jose Angel Lopez (hereinafter "plaintiff") commenced this action under New York Labor Law ("Labor Law") §§ 200, 240 (1), and 241 (6) against defendant-property owner BOP Greenpoint D LLC ("BOP") and defendant-property manager New Line Structures & Development LLC ("New Line") (collectively "defendants"). Plaintiff moves under CPLR 3212 for partial summary judgment against BOP solely on the issue of liability as to his Labor Law § 240 (1) claim. Defendants cross-motion for summary judgment on the same issue. All motions are opposed. For the reasons set forth below plaintiff's motion is granted and defendants' cross-motion is denied.

BACKGROUND

Defendant BOP owned the property known as Eagle One Street and commissioned a construction project for same. Co-defendant New Line hired non-party subcontractor Schear Construction ("Schear") to perform carpentry work inside the construction site. It is undisputed that the general safety policy—whether internal or amongst subcontractors—was that all large pieces of sheetrock were to be carried by two workers. On April 5, 2022, plaintiff—a Schear employee—was installing sheetrock with co-worker Jose Luis Sevilla ("Sevilla") throughout the 37th floor of the premises. (NYSCEF doc. no. 43 at 17, 41, "plaintiff deposition.) To install large sheetrock in elevated areas, they carried each side of the sheetrock to the designated area and then drilled the sheetrock into the wall. (Id. at 53.)

According to plaintiff, moments before the accident he and Sevilla carried a large piece of sheetrock and placed it on the wall. (Id. at 55.) Plaintiff was atop of his ladder holding the top portion with both hands, and Sevilla was standing on the floor holding the bottom part of the sheetrock in place. Then, Sevilla abruptly released his side of the sheetrock and went to go retrieve a new battery for his power drill; leaving plaintiff alone to hold the entire sheetrock while still standing on his ladder. (Id. at 55-56.) While waiting for Sevilla to return, plaintiff lost his grip of the sheetrock, the sheetrock tipped over and struck him in the head causing him to lose his balance, then the ladder shifted, and plaintiff fell backwards onto the floor as the ladder collapsed with the sheetrock landing directly on top of him and knocking him unconscious. (Id. at 56.) A translated affidavit of Sevilla—the only witness to the accident—also corroborates plaintiff's version of events. (NYSCEF doc. no. 47, Exhibit J, "Sevilla affidavit.")

The complaint's Labor Law 240 (1) claim against defendant-property owner BOP is premised on the statutory requirement that property owners ensure that all construction equipment used on-site be equipped with adequate safety devices. (NYSCEF doc. no. 1, "complaint.") His Bill of Particulars alleges that the ladder was inadequately secured and shaky, among other dangerous and defective characteristics. (NYSCEF doc. no. 42, "Bill of Particulars.") His moving papers argue that he is entitled to summary judgment against BOP because, as property owner, it had the non-delegable duty to ensure that the construction site was equipped with adequate safety devices to prevent injury. He relies on his testimony, Sevilla's affidavit, images that Sevilla captured of him on the ground with the collapsed ladder post-fall, two accident investigation reports, working contracts between BOP, New Line, and plaintiff's employer, and the deposition transcript of New Line's lead superintendent Ehab Hamdan ("Hamdan.") (NYSCEF doc. nos. 38-50.)

In opposition, defendants contend that (1) plaintiff was the proximate cause of his injuries (2) that plaintiff was a recalcitrant worker because the common practice and training was for two workers to hold large sheetrock on each end and maintain three points of contact; not alone like plaintiff allegedly did, (3) that the ladder plaintiff used was not defective, (4) that plaintiff's accident was not the result of a missing safety device, and (5) that no safety device could have prevented plaintiff's accident. (NYSCEF.doc. no. 56, 62 "def. opp. and cross.") Based on this, it also argues that plaintiff's accident did not involve an elevated risk and thus, falls outside the purview of Labor Law 240 (1). (Id. at 13.) It relies on deposition testimony from both plaintiff and Hamdan in addition to a sworn statement purportedly made by Sevilla one day after the accident. (NYSCEF doc. no. 59, Exhibit B, September 26, 2023 deposition of Ehab Hamdan, "Hamdan deposition"; NYSEF doc. no. 60, "Statement.")

From defendants' view, Hamdan's testimony shows that plaintiff's conduct violated the general safety policy and the Statement contradicts plaintiff's version on how he fell; namely that the ladder only collapsed while he began to fall (def. opp. and cross.) Hamdan testified that New Line emphasized to all subcontractors that its workers must keep three points of contact when using ladders and it would often notify each subcontractor's workers when they observed violations. (Hamdan deposition at 52-53.) The Statement was drafted on April 6, 2022, and appears to be signed by Sevilla and a witness. (Statement.) The witness' signature also appears at the end of the narrative, presumably indicating that they drafted it. (Id.) In it, Sevilla purportedly states that he passed the sheetrock to plaintiff while he was atop the A-frame ladder and that he left plaintiff alone to retrieve both his ladder and a battery for his drill. (Id.) He confirms that plaintiff lost his grip of the sheetrock and that the sheetrock hit plaintiff in the head prior to the fall and that he [Sevilla] had "set up the ladder" that plaintiff used and that "[he] [does not] know how it [the ladder] closed when it was on the floor" but that "the ladder did not move until [plaintiff] began to fall." (Id.) Defendants cross-motion for summary judgment is premised on the same grounds. (See def. opp. and cross.)

Plaintiff's reply reasserts his main arguments in support of summary judgment and his opposition to the cross-motion mirrors those same arguments in addition to arguing that Sevilla's Statement is inadmissible because Sevilla is a native Spanish speaker and writer and his purported Statement proffered in defendants' cross-motion and opposition lacks the requisite certification by a qualified translator. (NYSCEF doc. no. 68 "pla. reply and opp.") Defendants' reply reasserts the same arguments in support of its cross-motion but does not address the admissibly of Sevilla's Statement.

DISCUSSION

A party moving for a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, producing sufficient evidence (See Brandy B. v Eden Cent. School Dist., 15 NY3d 297, 302 [2010]; Kesselman v. Lever House Rest., 29 AD3d 302 [1st Dept 2006].) Once a defendant shows their entitlement, the burden shifts to the plaintiff to raise a triable issue of fact. (Zuckerman v City of New York, 49 NY2d 557, 562 [1980].) Since summary judgment is an extreme remedy, the Court must draw all reasonable inferences in favor of the non-moving party. (Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012].) Where there is doubt as to the existence of material facts or where different conclusions can reasonably be drawn from the evidence, summary judgment should be denied. (Udoh v Inwood Gardens, Inc., 70 AD3d 563, 565 [1st Dept 2010].)

Labor Law § 240 (1) applies to "falling worker" and "falling object" cases. It provides that "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 [safety] devices which shall be so constructed, placed and operated as to give proper protection to a person so employed." Because its aim is to protect workers by placing ultimate responsibility for safety practices on the owner and contractors instead of workers, who are scarcely in a position to protect themselves from accident (See Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]), the statute imposes a nondelegable duty on owners, contractors, and their agents to provide "devices which shall be so constructed, placed and operated as to give proper protection to those individuals performing the work." (Quiroz v Memorial Hosp. for Cancer & Allied Diseases, 202 AD3d 601, 603 [1st Dept 2022] [internal citation removed].) Whether it be a fall from height or a falling object, the central question in claims brought under Labor Law 240 (1) is whether the plaintiff's injuries were the direct consequence of a failure to provide adequate protection against the risk from an elevation-related hazard. (See Torres-Quito v 1711 LLC, 227 AD3d, 115-116 [1st Dept 2024].) Also, liability only attaches to hazards contemplated by the statute and accidents caused by the failure to provide safeguards against those hazards; not those caused by the general hazards specific to a workplace. (Makarius v Port Auth. of NY & N.J., 76 AD3d 805 [1st Dept 2010] [citation omitted].)

Plaintiff's Summary Judgment Motion

Plaintiff has shown prima facie entitlement to summary judgment. The parties do not dispute whether BOP, as property owner, is subject to Labor Law 240 (1). The record shows that plaintiff fell from an inadequate A-frame ladder and that BOP failed to properly secure the ladder against movement to ensure it remained steady and erect. (Castillo v TRM Contracting 626, LLC, 211 AD3d 430, 430 [1st Dept 2022] ["It is well settled that a statutory violation is established if a scaffold or ladder shifts, slips, or collapses, thereby causing injury to a worker"] citing Panek v County of Albany, 99 NY2d 452, 458 [2003].) Thus, the burden shifts to defendants, in opposition, to raise a triable issue of fact. By contrast, defendants fail to do so.

Defendants' opposition runs something like this. Plaintiff is the sole cause of his fall because he should have descended the ladder after Sevilla abandoned the task mid-performance and there were no safety devices that could have prevented his fall. And because plaintiff was the sole cause of his fall, his accident had nothing to do with an elevation-related risk. Also, plaintiff's conduct shows that he was a recalcitrant worker because he violated the safety policy. Last, plaintiff's moving papers fail to show that the ladder he used was either defective—since he used it earlier that day—or that his fall was occasioned by the lack of safety devices.

However, these arguments are unavailing, given the liberal construction afforded to Labor Law 240 (1) claims. Defendants' sole proximate cause-contention ignores the fact that the reason plaintiff was holding the large sheetrock in the first place was because Sevilla, without notice, abandoned him mid-task. Thus, at best, plaintiff's likely regrettable decision to remain on the ladder while holding the sheetrock establishes comparative negligence, which is not a defense to Labor Law 240 (1). (See Duran v ERY Retail Podium LLC, 238 AD3d 665, 666 [1st Dept 2025].) Also, defendants' contention does not negate plaintiff's prima facie showing of a statutory violation to create a triable issue of fact. (See Francis v 3475 Third Ave. Owner Realty, LLC, 213 Ad3d 555 [1st Dept 2023] [finding that when the statutory violation was the proximate cause of the accident the plaintiff cannot be the sole proximate cause].)

None of defendants' opposing citations are persuasive. Its reliance on Gallagher v New York Post, 14 NY3d 83,88 (2010) is unpersuasive. The issue in Gallagher involved whether defendants showed that the plaintiff was aware of readily available safety equipment and chose not to use it, and whether the plaintiff's prior hand injury was the sole cause of his accident. None of those facts are present here. Similarly, its other citations to Plass v Solotoff, 5 AD3d 365 (2nd Dept 2004)—where a plaintiff decided to use one plank scaffold when three planks were readily available—and Venecebi v Waldorf Astoria Hotel Corp., 143 AD2d 1004 (2nd Dept 1989)—where a jury verdict based on evidence that the plaintiff had a choice in the manner of descending the scaffold with other available safer devices—are unpersuasive for the same reasons.

Additionally, defendants fail to rebut plaintiff's leading argument under Ping Lin v 100 Wall St. Prop, LLC, 193 AD3d 650 (1st Dept 2021). There, the plaintiff hoisted sheetrock up his ladder and while trying to retrieve his drill from his toolbelt, was struck in the head by the sheetrock, and the ladder shifted, causing him to fall. (Id.) The First Department found that the defendant's failure to secure the ladder against movement violated Labor Law 240 (1). (Id.) Those facts mirror this action, with the exception that the plaintiff in Ping worked alone, while here, plaintiff worked with Sevilla. Sevilla's Statement—admissibility issues aside—neither diminishes the instructive ruling in Ping nor creates a triable issue of fact, as defendants contend. The Statement's version that the ladder moved when plaintiff began to fall does not contradict plaintiff's testimony that he lost balance and that the ladder shifted and then collapsed. Moreover, the Statement shows that Sevilla set up the ladder and that same collapsed for no reason. In either version, the ladder was an inadequate safety device to hang sheetrock. (See Id. at 653 citing Nieto v CLDN NY LLC, 170 AD3d 431, 432 [1st Dept 2019]; see also Romanczuk v Metropolitan Ins. & Annuity Co., 72 AD3d 592, 592 [1st Dept 2010] [granting summary judgment on the issue of liability because the conflicting accounts of the accident both demonstrated that a violation of Labor Law 240 (1) proximately caused an injury].)

Defendants also contend that no safety device could have prevented plaintiff's accident. This contention is without merit as, on this record, there is no evidence—in theory or otherwise—to support this conclusion and defendants have not shown that plaintiff's accident is one of the general hazards associated with installing sheetrock so as to foreclose liability under Labor Law 240 (1). Similarly, its conclusion that because plaintiff is the sole cause of his fall that his accident did not involve an elevation-related risk is without merit. Hence, defendants have not raised a triable issue on whether plaintiff was the sole cause of his injuries.

By extension, defendants' recalcitrant worker-contention unravels. This is because its claim is premised on the notion that both Sevilla and the general safety policy are appropriate safety devices contemplated under Labor Law 240. They are not. (See McCarthy v Turner Constr. Inc., 52 AD3d 333, 334 [1st Dept 2008] [people are not safety devices within the meaning of Labor Law 240 (1)]; Plaku v 1622 Van Buren LLC, 198 AD3d 431 [1st Dept 2021] ["instructions 'to avoid unsafe practices is not a sufficient substitute for providing a worker with a safety device to allow him to complete his work safely.' "].) Thus, because it relies on two ill-suited substitutes as safety devices and offers no evidence that safety devices were readily available to plaintiff, the recalcitrant worker-contention is inapplicable to the facts of this action to raise a triable issue of fact. (White v 31-01 Steinway, LLC, 165 AD3d 449, 451-452 [1st Dept 2018] [finding that the theory of recalcitrance has no application where no adequate safety devices were provided].)

Even if the court were to find that the defense applied, recalcitrance requires proof that the worker refused to obey a direct and immediate order to use available safety devices. (See Vitucci v Durst Pyramid LLC, 205 AD3d 441, 444 [1st Dept 2022].) Defendants show none. Hence, its contention under this theory fails to raise a triable issue of fact.

Next, defendants' lack of proof-theories as to (1) the defects in the ladder and (2) the causality of absent safety devices, are equally unpersuasive. As to the first theory, a plaintiff need not make a prima facie showing that the ladder they fell from was defective and their use of the ladder without incident before the accident does not create a triable issue of fact. (See Pinzon v Royal Charter Props., Inc., 211 AD3d 442, 443 [1st Dept 2022]; see also Sanchez v 1 Burgess Rd., LLC, 195 AD3d 531 [1st Dept 2021].) That the plaintiff did not observe anything wrong with the ladder does not raise an issue of fact considering that (a) Sevilla was the last person to use and set-up the ladder prior to the accident and (b) the record shows that the ladder collapsed without explanation; demonstrating that it was an inadequate safety device for the task it was used for.

The second theory conflates two things; first, whether plaintiff's injury is a foreseeable hazard contemplated under the labor law statute and second, whether the record shows that plaintiff's injury was due to the lack of safety devices. Yet the cases it cites in support only addresses the former: Buckley v Columbia Grammar & Preparatory, 44 AD3d 263 (1st Dept 2007) involved whether the counterweight that struck plaintiff-elevator mechanic as he repaired the car platform was unforeseeable. The First Department determined it was unforeseeable. In Brooks v City of New York, 212 AD2d 435 (1st Dept 1995) the First Department found that Labor Law 240 was inapplicable because the plaintiff's work of reaching 10 ½ inches above his head was not an elevation-related task. And in Noriega v State St. Bank & trust Co. of Conn., Natl. Assn., 271 AD2d 313 (1st Dept 2000) the same court found that the plaintiff's work of cleaning office window setbacks was ill-suited for Labor Law 240 (1) protection. By contrast, here defendants advanced no arguments on why plaintiff's use of a 6-foot A-frame ladder to install sheetrock on the upper portions of a wall is not governed by Labor Law 240 (1). And as to the latter, its argument fails to account for plaintiff's testimony, Sevilla's affidavit, and Sevilla's Statement (if considered) which confirms that the ladder shifted and then collapsed for no good reason; all of which are sufficient evidence that the ladder was inadequate to protect plaintiff from falling. Thus, none of these arguments raise a triable issue of fact in this regard.

Defendants' Cross-Motion

Considering that the arguments defendants advance in opposition are the same as its chief arguments in support of its cross-motion for summary judgment, the court finds that plaintiff has failed to show its prima facie burden. None of the arguments raised show that no triable issue of fact exists as to whether plaintiff was the sole proximate cause of his injuries, that he was a recalcitrant worker, or that defendants are entitled to summary judgment based on its other arguments.

Accordingly, it appearing to the court that plaintiff is entitled to judgment on liability and that the only triable issues of fact arising on plaintiff's motion for summary judgment relate to the amount of damages to which plaintiff is entitled, it is hereby

ORDERED that the motion is granted with regard to liability against defendant BOP Greenpoint D LLC; and it is further

ORDERED that the cross-motion of defendants BOP Greenpoint D LLC and New Line Structures & Development LLC is denied in its entirety; and it is further

ORDERED that an immediate trial of the issues regarding damages against defendant BOP Greenpoint D LLC shall be had before a Special Referee; and it is further

ORDERED that plaintiff shall, within 20 days from entry of this order, serve a copy of this order with notice of entry upon counsel for all parties hereto and upon the Clerk of the General Clerk's Office and shall serve and file with said Clerk a note of issue and statement of readiness and shall pay the fee therefor, and said Clerk shall cause the matter to be placed upon the calendar for such trial before the undersigned; and it is further,

ORDERED that a Judicial Hearing Officer ("JHO") or Special Referee shall be designated to hear and report to this court on the following individual issues of fact, which are hereby submitted to the JHO/Special Referee for such purpose

and it is further

ORDERED that the powers of the JHO/Special Referee shall not be limited beyond the limitations set forth in the CPLR unless otherwise indicated; and it is further

ORDERED that this matter is hereby referred to the Special Referee Clerk for placement at the earliest possible date upon the calendar of the Special Referees Part (Part SRP), which, in accordance with the Rules of that Part (which are posted on the website of this court), shall assign this matter at the initial appearance to an available JHO/Special Referee to hear and report as specified above; and it is further

ORDERED that counsel shall immediately consult one another and counsel for plaintiff/petitioner shall, within 15 days from the date of this Order, submit to the Special Referee Clerk by fax or e-mail an Information Sheet (accessible at the "References" link on the court's website) containing all the information called for therein and that, as soon as practical thereafter, the Special Referee Clerk shall advise counsel for the parties of the date fixed for the appearance of the matter upon the calendar of the Special Referees Part; and it is further

ORDERED that, except as otherwise directed by the assigned JHO/Special Referee for good cause shown, the trial of the issue(s) specified above shall proceed from day to day until completion and counsel must arrange their schedules and those of their witnesses accordingly; and it is further

ORDERED that counsel shall file memoranda or other documents directed to the assigned JHO/Special Referee in accordance with the Uniform Rules of the Judicial Hearing Officers and the Special Referees (available at the "References" link on the court's website) by filing same with the New York State Courts Electronic Filing System (see Rule 2 of the Uniform Rules); and it is further ]

ORDERED that any motion to confirm or disaffirm the Report of the JHO/Special Referee shall be made within the time and in the manner specified in CPLR 4403 and Section 202.44 of the Uniform Rules for the Trial Courts; and it is further

ORDERED that, unless otherwise directed by this court in any Order that may be issued together with this Order of Reference to Hear and Report, the issues presented in any motion identified in the first paragraph hereof shall be held in abeyance pending submission of the Report of the JHO/Special Referee and the determination of this court thereon.

ORDERED that such service upon the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website).

This constitutes the Decision and Order of the Court.

DATE 8/10/2026

DAKOTA D. RAMSEUR, J.S.C.

Dakota D. Ramseur, J.