Flavio Tapia Morocho, Plaintiff, v. PHIPPS HOUSES SERVICES INC EDWIN OCASIO JOSEPH OCASIO (2026)

The following e-filed documents, listed by NYSCEF under the motion and cross motion as: 61-85, were read on this motion by plaintiff pursuant to CPLR 3212 for an order granting partial summary judgment on the issue of liability on his claims under Labor Law § 240 (1) against defendants Henry Phipps Plaza East, Inc. (Phipps Plaza) and Phipps Houses Services, Inc. (Phipps Services) (collectively Phipps), and for summary judgment dismissing Phipps Plaza and Phipps Services' affirmative defenses alleging plaintiff's culpable conduct and/or comparative negligence; and on this cross-motion by Phipps, pursuant to CPLR § 3212, for partial summary judgment dismissing plaintiff's claim under Labor Law § 200 as alleged against them.

Upon the foregoing papers, it is ordered that the motions are determined as follows:

In this negligence action, plaintiff seeks damages for personal injuries he allegedly sustained on August 7, 2023, during the course of his employment with nonparty Stanley Painting as a painter at a construction project located at 485 First Avenue, Apt. 5L, New York, a duplex apartment. Plaintiff contends that he fell down the stairs when a four-foot A-frame ladder on which he was standing moved as he was painting the ceiling of the second-floor stairwell landing. At the time of the accident, Phipps Plaza owned the building, Phipps Services was the managing agent of the premises, and Stanley Painting was the contractor performing work at the premises.

The court will first address that branch of plaintiff's motion seeking partial summary judgment on the issue of liability on his Labor Law ' 240 (1) claim against Phipps. Plaintiff asserts that Phipps failed to provide him with a safe place to work and failed to provide proper equipment and/or safety devices necessary to prevent the accident, and that such failures were the proximate cause of his injuries. "Labor Law § 240 (1) imposes a nondelegable duty upon owners and general contractors and their agents to provide safety devices necessary to protect workers from risks inherent in elevated work sites" (Verdi v SP Irving Owner, LLC, 227 AD3d 932 [2d Dept 2024]). To recover under Labor Law § 240 (1), a plaintiff must "establish that the statute was violated, and that the violation was a proximate cause of his or her injuries" (Ochoa v JEM Real Estate Co., LLC, 223 AD3d 747 [2d Dept 2024] [internal quotation marks omitted]). In addition, "[w]hether a plaintiff is entitled to recovery under Labor Law § 240 (1) requires a determination of whether the injury sustained is the type of elevation-related hazard to which the statute applies" (Wilinski v 334 East 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 7 [2011]; see Davila v City of New York, 232 AD3d 580, 582 [2d Dept 2024]).

That branch of plaintiff's motion seeking partial summary judgment on the issue of liability on his Labor Law § 240 (1) claim against Phipps is denied. In support of his motion, plaintiff submitted, among other things, his deposition testimony wherein he testified that on the date of the accident, he was employed by nonparty Stanley Painting and had been assigned to the premises to paint by his supervisor, Fernando. Plaintiff stated that he was standing on a four-foot A-frame ladder, positioned on the second-floor stairwell landing, while painting the ceiling. Plaintiff further testified that his coworker, Walter, was holding the ladder the entire time as he worked. Plaintiff testified that he had used the ladder before without any issues and did not observe any defects prior to the accident. Further, plaintiff stated that he was standing on the third rung, painting with a brush in his right hand while placing his left hand on the adjacent wall, when the ladder moved, causing him to fall onto the staircase and then down the stairs, striking the entrance door with his shoulder before landing near the entrance door.

Plaintiff also submitted the deposition testimony of nonparty witness Walter Cevallos, who was employed by Stanley Painting at the time of the accident. Mr. Cevallos testified that on the date of the accident, he was working at the premises with plaintiff as instructed by their supervisor Fernando Maldonado. Mr. Cevallos further testified that Mr. Maldonado provided the workers with the necessary materials for the job. Further, Mr. Cevallos testified that he and plaintiff were using a four-foot ladder to cut the edges on the ceiling with a brush, and that he inspected the ladder, including its footing and rungs, prior to use and found no defects. He also confirmed that he ensured that the ladder was locked in place prior to its use. Mr. Cevallos further testified that he and plaintiff went to the second-floor landing, where he positioned the ladder and held it while standing on the first step of the stairs as plaintiff climbed onto the second step of the ladder. He then felt plaintiff throw himself on top of him before jumping onto the second step of the staircase, running down the stairs toward the apartment door, landing on his feet near the entrance door, striking the door with his shoulder, and falling to the ground. Mr. Cevallos further stated that he held the ladder with both hands the entire time, never letting go, and that the ladder did not move prior to plaintiff jumping because he was holding it.

In this case, the conflicting testimony of plaintiff and Mr. Cevallos as to whether the ladder moved and caused plaintiff's fall demonstrates that triable issues of fact exist regarding whether Labor Law § 240(1) was violated and whether any such violation was a proximate cause of plaintiff's injuries (see Andrade v Bergen Beach 26, LLC, 215 AD3d 722, 723 [2d Dept 2023]; Toalongo v Almarwa Ctr., Inc., 202 AD3d 1128, 1130 [2d Dept 2022]; Grieve v McRt Northeast Constr., 197 AD3d 623, 624 [2d Dept 2021]). Therefore, plaintiff has failed to establish his prima facie entitlement to judgment as a matter of law on the issue of liability on his Labor Law § 240 (1) claim against Phipps, and that branch of his motion is denied, without regard to the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

The remaining branch of plaintiff's motion seeking summary dismissal of Phipps' affirmative defenses alleging plaintiff's culpable conduct and/or comparative negligence is denied. Plaintiff failed to demonstrate entitlement to dismissal of the affirmative defenses of culpable conduct and/or comparative negligence against him because, as discussed above, his submissions raise triable issues of fact, at least, as to the proximate cause of the accident.

Next, the court turns to Phipps' cross-motion, pursuant to CPLR 3212, for partial summary judgment dismissing plaintiff's claim under Labor Law § 200 as alleged against them.

"Labor Law § 200 (1) is a codification of the common-law duty imposed on owners, contractors and their agents to provide workers with a safe place to work" (Pisculli v Tew, 238 AD3d 919, 922 [2d Dept 2025] [internal quotation marks omitted]; see Ramos v Kent & Wythe Owners, LLC, 236 AD3d 693, 696 [2d Dept 2025]). Under this statute, owners and contractors may be liable for injuries to workers where they supervised or controlled the work which caused the injury (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505 [1993]; Lombardi v Stout, 80 NY2d 290, 295 [1992]). Claims involving Labor Law § 200 generally fall into two broad categories, "those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed" (Cianciulli v Urban Found./Engg., LLC, 237 AD3d 891, 895 [2d Dept 2025] [internal quotation marks omitted]). Where, as here, "the methods or materials of the work are at issue, recovery against the owner or general contractor cannot be had . . . unless it is shown that the party to be charged had the authority to supervise or control the performance of the work" (Rajpaulsingh v Hidden Pond at Old Westbury, LLC, — AD3d —, 2026 NY Slip Op 06337 [2d Dept 2026] [internal quotation marks omitted]). In addition, "[a] defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed" (Pisculli v Tew, 238 AD3d at 922 [internal quotation marks omitted]).

Phipps' cross-motion for summary judgment dismissing plaintiff's Labor Law § 200 claim is granted. Phipps assert that they did not control, direct, or supervise plaintiff or any aspect of his work, nor did they provide him with any tools or equipment. In support of their motion, Phipps rely on plaintiff's deposition testimony, in which he stated that he received instructions and direction from his supervisor, Mr. Fernando, that he did not speak to any building staff, such as a superintendent or porter, that no one from the building instructed him on how to perform his work, and that Mr. Fernando provided him with all tools and equipment for the job, including the ladder he was using at the time of the accident. In addition, as discussed above, Mr. Cevallos also testified that Mr. Maldonado provided the workers with the necessary materials and that he did not have any interaction with the building superintendent or staff. Further, in support of their motion, Phipps submitted the deposition testimony of Christian Rivera, the building superintendent, employed by Phipps Services, who testified that he only visited the premises twice during the renovation, that contractors were not on site during those visits because they occurred after working hours, and that no one from Phipps supervised Stanley Painting's work at the premises.

Here, the deposition testimony of plaintiff, Mr. Cevallos, and Mr. Rivera, establishes that Phipps did not interact with, control, or supervise the work of Stanley Painting's employees, nor did they provide any tools or equipment. Therefore, Phipps met their initial burden of demonstrating their prima facie entitlement to summary judgment dismissing plaintiff's Labor Law § 200 claim (see Martinez v Nader Enters., LLC, 235 AD3d 630, 632 [2d Dept 2025]; Pisculli v Tew, 238 AD3d at 922; Argueta v City of New York, 223 AD3d 862, 865 [2d Dept 2024]).

Plaintiff does not oppose this branch of Phipps' cross-motion. As such, the claim is deemed abandoned, and Phipps' cross-motion for summary judgment dismissing plaintiff's cause of action alleging a violation of Labor Law § 200 is granted (see Gaetano Dev. Corp. v Lee, 121 AD3d 838, 840 [2d Dept 2014]; Genovese v Gambino, 309 AD2d 832, 833 [2d Dept 2003]).

Accordingly, plaintiff's motion is denied in its entirety. Phipps' cross-motion for summary judgment dismissing plaintiff's Labor Law § 200 claim is granted.

Dated: October 30, 2026

ROBERT I. CALORAS, J.S.C.

Robert I. Caloras, J.