Sanchez v City of New York

2024 NY Slip Op 31696(U)

May 13, 2024

Supreme Court, New York County

Docket Number: Index No. 158156/2021

Judge: J. Machelle Sweeting

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.
158156/2021 SANCHEZ, HUGO R vs. CITY OF NEW YORK ET AL

Motion No. 002 003

Page 1 of 13

The following e-filed documents, listed by NYSCEF document number (Motion 002) 35, 36, 37, 38, 39, 

40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 

71, 72, 73, 74, 75, 77, 78, 79, 80, 81, 82, 83, 84

were read on this motion to/for JUDGMENT - SUMMARY .

The following e-filed documents, listed by NYSCEF document number (Motion 003) 23, 24, 25, 26, 27, 

28, 29, 30, 31, 32, 33, 34, 51, 52, 53, 85, 86, 87

were read on this motion to/for JUDGMENT - SUMMARY .

In the underlying action, plaintiff always that on January 5, 2021, he was building an 

outdoor dining structure outside of a building located at 60 West 48th Street, New York, NY (the 

“Building”), when he fell from a defective ladder and was seriously injured. Plaintiff initiated this 

proceeding against A.L.S.T PROPERTIES, LLC (the “Building Owner”), which owned the 

Building; T&C IZAKAYA LLC d/b/a YAMA RAMEN & SUSHI BAR (the “Restaurant”), which 

was a tenant in the Building; SHAI REALTY MANAGEMENT, INC. (the “Property Manager”), 

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. J. MACHELLE SWEETING PART 62

Justice 

---------------------------------------------------------------------------------X INDEX NO. 158156/2021

 MOTION DATE

10/19/2023, 

10/18/2023

 MOTION SEQ. NO. 002, 003

DECISION + ORDER ON 

MOTION

HUGO R SANCHEZ,

 Plaintiff, 

- v -

CITY OF NEW YORK, NEW YORK CITY DEPARTMENT 

OF TRANSPORTATION, T & C IZAKAYA LLC D/B/A YAMA 

RAMEN RAMEN & SUSHI BAR, A.L.S.T. PROPERTIES, 

LLC,SHAI REALTY MANAGEMENT, INC.,

 Defendants. 

---------------------------------------------------------------------------------X

FILED: NEW YORK COUNTY CLERK 05/14/2024 04:47 PM INDEX NO. 158156/2021

NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 05/14/2024

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Motion No. 002 003

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which was the property manager for the Building; the CITY OF NEW YORK and NEW YORK 

CITY DEPARTMENT OF TRANSPORTATION (collectively, the “City”).

1

 

Pending now before the court are two motions. In Motion Sequence #002, plaintiff seeks 

an order, pursuant to Civil Practice Law and Rules (“CPLR”) 3212, granting plaintiff summary 

judgment against the Restaurant, Building Owner and Property Manager. In Motion Sequence 

#003, the Property Manager seeks an order granting summary judgment in its favor, dismissing all 

claims and cross-claims against it.

Standard for Summary Judgment

The function of the court when presented with a motion for summary judgment is one of 

issue finding, not issue determination (Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 

395 [NY Ct. of Appeals 1957]; Weiner v. Ga-Ro Die Cutting, Inc., 104 A.D.2d331 [Sup. Ct. App. 

Div. 1

st Dept. 1985]). The proponent of a motion for summary judgment must tender sufficient 

evidence to show the absence of any material issue of fact and the right to entitlement to judgment 

as a matter of law (Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [NY Ct. of Appeals 1986]; 

Winegrad v. New York University Medical Center, 64 N.Y.2d 851 [NY Ct. of Appeals 1985]). 

Summary judgment is a drastic remedy that deprives a litigant of his or her day in court. Therefore, 

the party opposing a motion for summary judgment is entitled to all favorable inferences that can 

be drawn from the evidence submitted and the papers will be scrutinized carefully in a light most 

favorable to the non-moving party (Assaf v. Ropog Cab Corp., 153 A.D.2d 520 [Sup. Ct. App. 

Div. 1st Dept. 1989]). Summary judgment will only be granted if there are no material, triable 

1 Plaintiff initially initiated the action against the Owner, Restaurant and Property Manager under Index Number 

150965/2021. That action and the instant action were consolidated by order of the undersigned on October 12, 2023 

(NYSCEF Doc. No. 21). 

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Motion No. 002 003

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issues of fact (Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 [NY Ct. of Appeals 

1957]).

The proponent of a summary judgment motion must make a prima facie showing of 

entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the 

absence of any material issues of fact, and failure to make such prima facie showing requires a 

denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has 

been made, however, the burden shifts to the party opposing the motion for summary judgment to 

produce evidentiary proof in admissible form sufficient to establish the existence of material issues 

of fact which require a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320 [N.Y. Ct. of 

Appeals 1986]). 

Further, pursuant to the New York Court of Appeals, “We have repeatedly held that one 

opposing a motion for summary judgment must produce evidentiary proof in admissible form 

sufficient to require a trial of material questions of fact on which he rests his claim or must 

demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; 

mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” 

(Zuckerman v City of New York, 49 NY2d 557 [N.Y. Ct. of Appeals 1980]). 

FILED: NEW YORK COUNTY CLERK 05/14/2024 04:47 PM INDEX NO. 158156/2021

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Motion No. 002 003

Page 4 of 13

Arguments made by Plaintiff

In his papers, plaintiff argues that he had been hired as a “day laborer” to build an outdoor 

dining structure for seating on the street in front of the Restaurant. On the date of the subject 

accident, he was performing work for the Restaurant, which was owned by Tami Halim (also 

known as “Tony”) and his father Charlie [last name not provided]. Another laborer (hereinafter

referred to as the “Assistant”) was helping with this project. The structure was about 11 feet high, 

necessitating the use of a ladder to perform the work. Prior to the accident, Tony had given plaintiff 

“very precise instructions of what to do,” and plaintiff had followed these instructions. When the

accident occurred, plaintiff was using a 6-foot A-frame ladder provided by the Restaurant that had 

been set up on the street by the Assistant. The ladder itself was old and “in quite bad shape.” The 

street at this location was uneven, and plaintiff tried to move the ladder to a more stable position, 

but that did not help. While plaintiff was climbing up the ladder in order to work on the gutter for 

the outdoor dining structure, the ladder started to move, and plaintiff fell. Plaintiff knew that a

second ladder was at the Restaurant, but this ladder was also old. Plaintiff had asked Tony to 

replace both ladders, but Tony refused. 

Plaintiff argues that the Building Owner is a proper Labor Law defendant because it is 

undisputed that the Building Owner owned Building. Plaintiff argues that the Restaurant is a 

proper Labor Law defendant because it is undisputed that the Restaurant leased a part of the 

Building and had the authority to control its own worksite, which authority was exercised in the 

hiring and directing of plaintiff’s work. Plaintiff also argues that the Property Manager is a proper 

Labor Law defendant because the Property Manager was an agent for the Building Owner. When 

the Restaurant decided to have work done for the outdoor dining area, the Property Manager

approved on behalf of the Building Owner, and Tony (from the Restaurant) considered getting 

FILED: NEW YORK COUNTY CLERK 05/14/2024 04:47 PM INDEX NO. 158156/2021

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Motion No. 002 003

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permission from the Property Manager to be the same as getting permission from the Building

Owner. 

Plaintiff argues that under Labor Law 200, he is entitled to summary judgment because

defendants failed to properly maintain the area and provide plaintiff with a safe place to work.

Plaintiff also argues that defendants had notice that the ladder provided to plaintiff was faulty.

Pursuant to Labor Law 240(1), plaintiff argues that he is entitled to summary judgment,

because he was engaged in a statutorily protected activity, and defendants failed to provide him

with an adequate safety device against gravity-related risk. 

Plaintiff also argues that under Labor Law 241(6), he is entitled to summary judgment, because 

defendants violated Rules 12 NYCRR 23-1.5 (c)(3); 12 NYCRR 23-1.21(b)(3)(ii); and 12 NYCRR 

23-1.21(e)(3). Plaintiff contends that the ladder provided to him was unsound, had insecure joints, 

and required level footing that was not available at plaintiff’s work location.

Arguments made by the Restaurant and the Building Owner

In opposition, the Restaurant and Building Owner presented a very different set of facts, 

based in large part on the testimony given by Tony at his EBT (transcript at NYSCEF Doc. No.

69). Frist, they each dispute that the Assistant, who had set up the ladder, had been hired by the 

Restaurant. Instead, they argue that the Assistant was brought to the worksite by plaintiff himself,

to assist plaintiff with the work. Second, they deny that the Restaurant owned two different 

ladders, and contend instead, that there was only one ladder at the Restaurant, which was yellow 

in color. The Restaurant and Building Owner argue that this is important because it raises a

question of fact as to whether plaintiff actually fell from a ladder provided by the Restaurant, or 

whether plaintiff fell from a ladder that plaintiff himself had brought with him. Third, the

FILED: NEW YORK COUNTY CLERK 05/14/2024 04:47 PM INDEX NO. 158156/2021

NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 05/14/2024

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Motion No. 002 003

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Restaurant and Building Owner dispute that plaintiff had been given “instructions” by Tony as to 

what to do. Instead, the Restaurant and Building Owner argue that Tony made clear that he did not 

have any experience in construction; that the plaintiff brought all of his own tools for the job; and 

that it was plaintiff himself who decided how to go about putting together the outdoor seating area.

Fourth, the Restaurant and Building Owner dispute that the ladder owned by the Restaurant 

was in poor condition, and argue instead that there had never been any issues with the ladder and 

the Restaurant continued to use that ladder without issue. Fifth, they dispute that plaintiff had ever

made the Restaurant aware of a claimed poor condition of the Restaurant’s ladder, or that plaintiff 

ever asked Tony to purchase any new ladders. Sixth, the Restaurant and Building Owner both

challenge whether plaintiff fell in the manner in which plaintiff described, because the narrative

plaintiff gave at his deposition differed significantly from the narrative plaintiff testified to at his 

50-h hearing. The Restaurant and Building Owner argue that at his deposition (transcripts at 

NYSCEF Doc. Nos. 41, 64, 65), plaintiff testified that he was using an orange ladder and fell while 

stepping from the third to the fourth rung, whereas at his 50-h hearing (transcript at NYSCEF Doc.

No. 68), plaintiff testified that he was using a yellow ladder and that the accident occurred after 

he had been standing on the top of the ladder for two to three minutes. 

Seventh, the Restaurant and Building Owner argue that after the accident, plaintiff told 

Tony that he fell from the stairs and not the ladder. Tony was only made aware of the allegations 

concerning the ladder when the insurance investigator informed him that plaintiff claimed the fall 

was from a ladder. 

The Restaurant and Building Owner argue that plaintiff’s motion for summary judgment 

should be denied in its entirety because the record shows: (i) material factual discrepancies 

between the testimonies of plaintiff and Tony; (ii) material inconsistencies between the testimony 

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Motion No. 002 003

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plaintiff gave at his 50-h hearing and the testimony plaintiff gave at his EBT; and (ii) material 

inconsistencies between plaintiff’s testimony and documentary evidence to the contrary. With 

respect to the discrepancies between plaintiff and Tony, they include, but are not limited to: 

whether Tony had given plaintiff instructions; who hired the Assistant that supposedly erected the 

ladder plaintiff used; whether the Restaurant had two ladders; whether the ladder owned by the 

Restaurant was unsafe and whether plaintiff had informed plaintiff of such. With respect to the 

inconsistencies between plaintiff’s testimony at the 50-h hearing and the EBT, they include, but 

are not limited to: what ladder plaintiff was using when he fell; what types of ladders were 

available for his use; whether the two ladders were the same height; where on the ladder the 

accident occurred; whether or not plaintiff had brought his own personal tools to the worksite; 

whether plaintiff had a cell phone with him; whether plaintiff or anyone called 911 on plaintiff’s 

behalf, etc. 

With respect to plaintiff’s testimony and the documentary evidence, the Restaurant and

Building Owner argue that plaintiff testified at his deposition that he could not remember if he 

had another lawsuit, and expressly denied that the plaintiff’s firm represented him in any other 

case. Yet, the New York State Courts Electronic Filing (NYSCEF) system shows that plaintiff, 

who is represented by the same firm, initiated another personal injury action under Index Number 

152820/2020 in New York Supreme Court, (the “2020 Action”) the year before the instant action. 

Further, plaintiff testified at his deposition that he was never been involved in any prior workplace accidents, but plaintiff’s 2020 Action concerned alleged injuries due to an unsafe work 

environment. Finally, the Restaurant and Building Owner note that plaintiff never pursued an 

inspection of the subject ladder that he claims was unsafe and that caused him to fall. The

Restaurant and Building Owner argue that plaintiff’s credibility “is squarely in question” and when

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Motion No. 002 003

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a plaintiff’s credibility has been placed in issue, summary judgment cannot be granted on Labor 

Law causes of action.

The Restaurant and Building Owner further argue that under either version of the narratives 

presented by plaintiff, there are triable questions of fact as to whether plaintiff was the sole 

proximate cause of the accident in that he “failed to act normally and logically.” With respect to 

the testimony at the 50-h hearing, plaintiff testified that the incident occurred when he was standing 

on the top cap of the yellow A-frame ladder for two to three minutes, but also testified that he was 

well aware, and was specifically instructed during his OSHA training, that he should never use an 

A-frame ladder while standing on the top cap. With respect to the testimony at the deposition,

plaintiff acknowledged the existence of a second taller ladder, and common-sense demands that if 

a shorter ladder was unstable, plaintiff should have simply waited to use the other taller ladder.

Next, the Restaurant and Building Owner argue that even assuming, arguendo, that 

plaintiff’s versions of the facts were generally correct, summary judgment could not be granted 

against either the Restaurant or Building Owner, because it is undisputed that plaintiff fell on a

street solely owned and controlled by defendant City of New York (the “City”), and it was the City 

that had given express permission for the erection of the outdoor dining structure. This permission 

was granted pursuant to Emergency Executive Order No. 126, which was issued by the City to 

allow restaurants to operate on City-owned space while indoor dining was closed due to the 

COVID-19 pandemic. 

Finally, they contend that summary judgment is not appropriate here, were neither the

Restaurant nor the Building Owner controlled or supervised plaintiff’s work. With respect to the 

Building Owner, the Building Owner did not contract to have the outdoor dining structure erected; 

such structure was not erected for the Building Owner’s benefit; and the Building Owner was not 

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Motion No. 002 003

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even aware of that a sidewalk dining area was being put up, so the Building Owner did not and 

could not have supervised the plaintiff’s work. With respect to the Restaurant, plaintiff testified

that neither Tony nor Charlie from the Restaurant were present when the accident occurred and 

that the plaintiff had not seen or spoken to either of them since the night before. Tony 

unequivocally testified that plaintiff decided himself how to go about putting together the outdoor 

seating. As such, the Restaurant clearly did not supervise plaintiff’s work. In sum, the Restaurant

and Building Owner argue that they did not supervise the means and methods of the plaintiff’s 

work; they did not owe plaintiff a duty of care with regard to the maintenance and repair of the 

street; plaintiff failed to submit any evidence that the street was maintained in a dangerous 

condition; and plaintiff failed to submit any evidence tending to show that either the Restaurant or

the Building Owner was on notice of the claimed dangerous condition in the street. For all of these 

reasons, the Restaurant and Building Owner argue, they are not properly named as defendants in

this action which assets claims pursuant to the Labor Law.

In Reply, plaintiff did not deny that factual discrepancies exist, but argued that summary 

judgment is nevertheless warranted because the facts in question are not material and do not alter 

the Restaurant and Building Owner’s liability under the Labor Law. 

Plaintiff also argued that even though the accident happened on the City-owned street, the 

Building Owner is nevertheless liable because “the owner that matters is the owner of the building, 

not the street next to it,” and the Restaurant is nevertheless liable because it supplied the defective

ladder and purchased the materials for the construction project.

FILED: NEW YORK COUNTY CLERK 05/14/2024 04:47 PM INDEX NO. 158156/2021

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Motion No. 002 003

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Arguments made by the Property Manager

The Property Manager does not take any issue with the different versions of the facts, and 

does not call into question plaintiff’s credibility. Rather, the Property Manager generally accepts 

plaintiff’s allegations that he fell off a defective ladder provided to him by the Restaurant and seeks

summary judgement in its favor. 

The Property Manager argues that it does not own the building or the street where the 

accident occurred, and that it was not the “agent” of the Building Owner as that term is understood 

in the context of the Labor Law. With respect to being an agent, the Property Manager argues 

that to hold a defendant liable under the Labor Law as a “statutory agent” of either the owner or 

the general contractor, it must be shown that the defendant had the “authority to supervise and 

control” the injury-producing work, which the Property Manager did not have in this case. Here, 

the Property Manager argues, it never entered any written management agreement regarding the

Building, much less one that was comprehensive or exclusive. There was only a verbal agreement

with the Building Owner that the Property Manager’s responsibilities were limited to building 

upkeep and minor repairs, collecting rent, and other administrative functions. It did not contact 

plaintiff; did not commission plaintiff’s work; did not pay for plaintiff’s labor; did not supply 

plaintiff with any ladder, tools or materials; did not instruct plaintiff in the manner, means and 

method of the work; and was not present while the construction was conceived, planned, or 

executed. The Property Manager argues that it had absolutely no authority or control over the 

plaintiff’s work or site safety. 

The Property Manager also argues that the sole piece of evidence plaintiff offers as 

indicative of the Property Manager’s authority to supervise and control plaintiff’s work, was a 

portion of Tony’s testimony, where Tony stated that prior to hiring plaintiff, Tony called the 

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Motion No. 002 003

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Property Manager and obtained his permission to erect an outdoor dining structure. The Property 

Manager argues that the terms of the lease between the Restaurant and the Building Owner state 

that the Restaurant was not allowed to perform any type of work on the property unless the 

Restaurant first received the “prior written consent” of the Building Owner, not the consent of the 

Property Manager. Emergency Executive Order No. 126 was the issued by Mayor DeBlasio on 

June 18, 2020. The Property Manager argues that under this executive order, restaurateurs were 

given the right to construct outdoor dining sheds, without needing permission from building 

owners or their alleged agents. Therefore, the Property Manager argues, the phone call made by 

Tony is a “red herring,” as the Restaurant never needed permission to build, and any testimony 

Tony gave to the contrary, stemmed from Tony’s “incorrect personal belief.” The Property 

Manager argues that a liable party should not be permitted to “imbue their liability onto a nonliable party simply by asking for unnecessary permission from a party with no authority to grant 

or withhold such permission in the first place.”

In response, plaintiff argues that the Property Manager was an agent under the Labor Law 

because the Property Manager’s role in managing the Building was a comprehensive one, as the 

Property Manager testified that he acted as the building’s “super”; that he collected rent and

effectuated repairs; and that he went to the building “pretty often.” Further, plaintiff argues, despite 

the Mayor giving permission to allow outdoor dining, the owner of a property, agent of an owner, 

and/or property manager of a building had to still give authority for the outdoor dining shed to be 

constructed. As such, the Property Manager did have the authority to deny the Restaurant’s request 

to build an outdoor dining shed. Here, plaintiff argues, the Property Manager exercised its control 

over the project by giving permission to the Restaurant to undertake such project in the first place. 

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Motion No. 002 003

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Conclusions of Law Regarding the Restaurant and Building Owner

As described above in detail, there are at least three materially different versions of the 

facts on this record: (1) The version given by plaintiff at his 50-h hearing, where plaintiff used a 

yellow ladder supplied by the Restaurant; the accident occurred after plaintiff had already been 

standing on the top step of the ladder for two to three minutes; and present at the worksite was the 

Assistant that the Restaurant had provided. (2) The version given by plaintiff at his deposition:

where plaintiff followed Tony’s instructions and used an orange ladder supplied by the Restaurant; 

the accident occurred while plaintiff was stepping from the third to the fourth rung; and present at 

the worksite was the Assistant that the Restaurant had provided. (3) The version given by Tony 

(from the Restaurant) at his deposition, where Tony gave plaintiff no instructions; Tony gave 

plaintiff one secure ladder; plaintiff called Tony to say plaintiff had fallen on the stairs; and the 

Assistant that was present was plaintiff’s friend, that plaintiff himself brought to the worksite. 

Plaintiff’s general claim is that he was knowingly provided with a faulty ladder, he fell off 

the ladder, and he was injured. Therefore, facts such as which ladder plaintiff was using, who

provided the ladder, and how the accident happened are not immaterial details, but in fact go to 

the very heart of plaintiff’s allegations. 

As stated above, any party seeking summary judgment must tender 

sufficient evidence to demonstrate the absence of any material issues of fact, and 

failure to make such prima facie showing requires a denial of the motion, regardless 

of the sufficiency of the opposing papers. The caselaw is also clear that with respect 

to the Labor Law, summary judgment can be denied if there are significant issues 

as to plaintiff’s credibility, particularly in a situation such as this one where the 

accident is effectively unwitnessed.2 See, e.g. Romano v New York City Tr. Auth., 

213 AD3d 506 (1st Dept 2023); Hernandez v 46-24 28th St., LLC, 214 AD3d 451 

(1st Dept 2023); Nascimento v Bridgehampton Const. Corp., 86 AD3d 189 (1st 

Dept 2011);

2 Here, the accident was theoretically witnessed by the Assistant, but both plaintiff and the Opponents claim they do 

know the identity of, and cannot question, the Assistant because he was brought to the worksite by the other side. 

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Motion No. 002 003

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Manna v New York City Hous. Auth., 215 AD2d 335 (1st Dept 1995) (denying summary judgment

where the conflicting evidence raises questions of fact as to the manner in which the accident

occurred, especially where there is no witness to the accident other than plaintiff ).

Accordingly, the branch of plaintiff’s motion seeking summary judgment as against the 

Restaurant and Building Owner is denied.

Conclusions of Law Regarding the Property Manager

The crux of plaintiff’s claims against the Property Manager is that it acted as an agent of 

the Building Owner. As detailed above, material facts in this case remain in dispute. Here, it is

alleged that Tony called the Property Manager after the Executive Order had passed, to obtain

permission to build the dining shed. Notably, the Property Manager was not asked at his deposition

about this conversation with Tony and both the Restaurant and Building Owner acknowledge in 

their papers that the Property Manager “was aware” that a dining shed was being constructed.

Given these facts, summary judgement is denied.

Conclusion

For all of the above reasons, it is hereby:

ORDERED that Motion Sequence Numbers 002 and 003 are DENIED.

5/13/2024 $SIG$

DATE J. MACHELLE SWEETING, J.S.C.

CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

GRANTED X DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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