Rodriguez v VillageFH, LLC

2024 NY Slip Op 31071(U)

April 1, 2024

Supreme Court, New York County

Docket Number: Index No. 154863/2018

Judge: Arlene P. Bluth

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.
154863/2018 RODRIGUEZ, ROBERTO vs. VILLAGEFH, LLC

Motion No. 004 005

Page 1 of 14

The following e-filed documents, listed by NYSCEF document number (Motion 004) 111, 112, 113, 114, 

115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 159, 161, 

163, 169, 170, 171, 172, 173, 174, 175, 176, 177, 183, 185, 189, 190, 191, 196, 197, 198

were read on this motion to/for SUMMARY JUDGMENT .

The following e-filed documents, listed by NYSCEF document number (Motion 005) 134, 135, 136, 137, 

138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 

160, 162, 164, 178, 179, 180, 181, 182, 184, 186, 188, 192, 193, 194, 195

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

Motion Sequence numbers 004 and 005 are consolidated for disposition. Defendants 

VillageFH, LLC and SMI Construction Management’s motion (MS004) for summary judgment 

dismissing all claims against it is granted in part and denied in part and plaintiff’s cross-motion 

for partial summary judgment on his Labor Law § 240(1) claim and to amend his bill of 

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. ARLENE P. BLUTH PART 14

Justice 

---------------------------------------------------------------------------------X INDEX NO. 154863/2018

 MOTION DATE N/A, N/A

 MOTION SEQ. NO. 004 005

DECISION + ORDER ON 

MOTION

ROBERTO RODRIGUEZ,

 Plaintiff, 

- v -

VILLAGEFH, LLC,SMI CONSTRUCTION MANAGEMENT, 

INC.,

 Defendant. 

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

VILLAGEFH, LLC, SMI CONSTRUCTION MANAGEMENT, 

INC. 

 Plaintiff,

 -againstDONATO, INC. and INTERIOR ROCK, INC., 

 Defendant.

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

 

 Third-Party

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particulars to add an Industrial Code Section is granted in part and denied in part. The motion 

(MS005) by third-party defendant Interior Rock, Inc. (“Interior Rock”) for summary judgment is 

granted in part and denied in part. 

Background

This Labor Law case arises out of an accident involving plaintiff on September 13, 2016. 

On the day of the accident, plaintiff was working for non-party Jovin Demo New York, Inc. 

(“Jovin”), a demolition contractor at a job site in Manhattan. Defendant SMI Construction 

Management, Inc. (“SMI”) was the general contractor.

Plaintiff testified that Jovin was hired to “Break debris and chop down some metal” 

(NYSCEF Doc. No. 119 at 64). Plaintiff added that he was told he was going to be cutting steel 

on the fourth floor (id. at 68). After plaintiff and his coworkers arrived at the jobsite, Jovin’s 

foreman told him to do downstairs and clear “out the debris that’s dropping from the fourth floor 

to the basement” and take it out to the street (id. at 74). 

When asked to describe the basement, plaintiff testified that “It was a war zone. You 

have planks everywhere. Certain areas were being excavated and some places weren’t, some 

places were already done, and we had our section where we were working in the pit” (id. at 80). 

Plaintiff insisted that the planks were put down so workers would not have to walk in a ditch 

during the excavation (id.). Prior to his accident, plaintiff estimated that he made about 25 to 35 

trips from the basement to the dumpster outside as part of his debris removal task (id. at 89). 

Plaintiff testified that his accident occurred as he was leaving the basement while 

carrying a full load of debris on his back (id. at 93-94). He added that “they filled up the bucket 

and hoisted it up on my back. When I’m going out, somebody was coming in. That’s when –

when we got to each other, that’s when I went straight into the hole (indicating) because we 

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nipped each other and I went straight into the hole. If there was a railing there, if there was a 

railing there, I would have bounced back off and kept going, like a boxing match, a wrestling 

match. It wasn’t that. I went straight into the hole. He dropped his bucket. He came to help me 

and I couldn’t get up, my legs were numb” (id. at 94). Plaintiff estimated the fall was about two 

feet (id. at 95). 

Unfortunately, this is not the only version of the accident offered by plaintiff. When 

plaintiff sought medical treatment, he offered somewhat conflicting accounts of how he was hurt 

that ranged from assertions that he “slipped and fell,” “he fell backwards” and that he “suffered a 

mechanical fall due to an uneven floor” (NYSCEF Doc. No. 190). None of these records suggest 

that his fall was caused because a co-worker bumped into him. And neither plaintiff’s deposition 

testimony nor his bill of particulars suggests that he slipped and fell. 

VillageFH LLC

Defendants seek summary judgment with respect to VillageFH on the ground that this 

defendant is entitled to the homeowner’s exception to the Labor Law. 

“In 1980, the Legislature amended Labor Law §§ 240 and 241 to exempt owners of one 

and two-family dwellings who contract for but do not direct or control the work” from the 

absolute liability imposed by these statutory provisions. The amendments, intended by the 

Legislature to shield homeowners from the harsh consequences of strict liability under the 

provisions of the Labor Law, reflect the legislative determination that the typical homeowner is 

no better situated than the hired worker to furnish appropriate safety devices and to procure 

suitable insurance protection” (Bartoo v Buell, 87 NY2d 362, 367, 639 NYS2d 778 [1996]). 

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“The homeowner exemption to liability under Labor Law § 240(1) is available to owners 

of one-and two-family dwellings who contract for the performance of work on the premises, but 

who do not direct or control the work. Where . . . the property is used for both residential and 

commercial purposes, the courts employ a flexible site and purpose test to determine whether the 

work contracted for directly relates to the residential use of the building so as to warrant 

application of the exemption” (Nicholas v Phillips, 151 AD3d 731, 731, 54 NYS3d 675 [2d Dept 

2017] [citations omitted]). 

Here, VillageFH met its burden in the moving papers through the affidavit from the 

general contractor SMI, which noted that VillageFH did not direct or control the work and 

attached a certificate of occupancy for the property that shows it is a single-family residence 

(NYSCEF Doc. No. 122). 

Plaintiff did not raise an issue of fact concerning the application of the homeowner’s 

exception. He contends that the property was commercial on the date of the accident. But that is

not the dispositive issue here. There is no dispute that SMI claims it was hired to convert the 

property to a residence from 2016 through 2019 and that the certificate of occupancy (issued in 

2019) classifies the property as a residence. The clear purpose of the construction, on this 

record, was residential—that entitles VillageFH to the exemption (Khela v Neiger, 85 NY2d 333, 

338, 624 NYS2d 566 [1995]). Accordingly, all claims against VillageFH are severed and 

dismissed.

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Claims Between SMI and Plaintiff

SMI,

1

the general contractor, moves2to dismiss plaintiff’s claims based on Labor Law §§ 

240(1), 241(6), 241-a and 200. Plaintiff cross-moves for summary judgment on his Labor Law § 

240(1) and to amend his bill of particulars to add an additional section from the Industrial Code. 

As an initial matter, plaintiff did not oppose the portion of SMI’s motion that sought 

dismiss his Labor Law §241-a and the following Industrial Code sections.

Labor Law § 240(1)

“Labor Law § 240(1), often called the ‘scaffold law,’ provides that all contractors and 

owners . . . shall furnish or erect, or cause to be furnished or erected . . . 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 construction workers employed 

on the premises” (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 499-500, 601 NYS2d 

49 [1993] [internal citations omitted]). “Labor Law § 240(1) was designed to prevent those types 

of accidents in which the scaffold, hoist, stay, ladder or other protective device proved 

inadequate to shield the injured worker from harm directly flowing from the application of the 

force of gravity to an object or person” (id. at 501). 

“[L]iability [under Labor Law § 240(1)] is contingent on a statutory violation and 

proximate cause . . . violation of the statute alone is not enough” (Blake v Neighborhood Hous. 

Servs. of NY City, 1 NY3d 280, 287, 771 NYS2d 484 [2003]). 

1 As the Court dismisses VillageFH from this case, the Court will hereafter refer to only SMI. 

2 The Court observes that third-party defendant Interior Rock Inc’s motion makes many of the same arguments as 

SMI regarding the alleged insufficiency of plaintiff’s Labor Law claims. 

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With respect to Labor Law § 240(1), the Court denies both SMI’s motion and plaintiff’s 

cross-motion for this requested relief. As SMI pointed out, plaintiff offered multiple versions of 

how he was injured. In his deposition testimony, he claimed that he was walking on a wood 

pathway (planks) when another worker bumped into him and caused him to fall into the ditch 

below. The Court observes that SMI included medical records in which plaintiff allegedly told 

one facility that “he slipped at work and fell backwards from standing” (NYSCEF Doc. No. 190 

at 3). He told another provider that “he slipped while carrying buckets of debris” (id. at 4) and 

yet another that “he was at work when he was lifting debris” and “[h]e fell backwards” (id. at 7). 

Plaintiff also said that the “suffered a mechanical fall due to an uneven floor” (id. at 8). 

These varying versions compel the Court to find that there are issues of fact regarding 

exactly how the accident occurred. In particular, these medical reports do not contend that he 

fell because a coworker bumped into him—some say he slipped and fell while others don’t really 

mention the exact cause. And they do not mention that he fell down into a ditch or that the fall 

was about two feet. The fact is that summary judgment is a drastic remedy and the Court cannot 

pick and choose which version of plaintiff’s account should be credited. The Court observes that 

plaintiff’s accounts in these medical records are admissible (Kamolov v BIA Group, LLC, 79 

AD3d 1101, 1101 [2d Dept 2010] [affirming the denial of summary judgment motion in a Labor 

Law case where the medical records raised an issue of fact about how the accident occurred]). 

The Court adds that it denies this branch of SMI’s motion to dismiss this claim because 

although plaintiff claims he only fell two feet, the total amount is not dispositive. “It is an 

oversimplification to suggest that Labor Law 240(1) does not apply based solely on the distance 

involved” (Brown v 44th St. Dev., LLC, 48 Misc 3d 234, 242 [Sup Ct, NY County 2015], affd 

sub nom. Brown v 44 St. Dev., LLC, 137 AD3d 703 [1st Dept 2016]). In Brown, the Court 

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granted a plaintiff’s Labor Law § 240(1) claim where the plaintiff fell only about a foot in a hole

in between rebar (id.). “The sufficiency of an elevation differential and fall from a height for 

purposes of Labor Law § 240(1) liability cannot, unfortunately, be reduced to a numerical brightline test or automatic minimum/maximum quantification” (Amo v Little Rapids Corp., 301 AD2d 

698, 701, 754 NYS2d 685 [3d Dept 2003] 

This Court finds that the type of accident alleged here (at least in plaintiff’s deposition 

testimony) is the type of gravity related injury that implicates Labor Law § 240(1). Plaintiff 

alleged that he was carrying heavy debris on his back, which means that falling two feet has

more serious implications than if he was not loaded down with debris on his back. Put another 

way, if a jury believes that the accident happened the way plaintiff described in his deposition 

testimony, then they might find that it was a gravity-related incident that could have been 

prevented with an adequate safety device such as a handrail. Of course, the Court cannot grant 

summary judgment to plaintiff given the multiple ways in which he described how the accident 

occurred. 

Labor Law § 241(6)

“The duty to comply with the Commissioner’s safety rules, which are set out in the 

Industrial Code (12 NYCRR), is nondelegable. In order to support a claim under section 241(6). . 

. the particular provision relied upon by a plaintiff must mandate compliance with concrete 

specifications and not simply declare general safety standards or reiterate common-law 

principles” (Misicki v Caradonna, 12 NY3d 511, 515, 882 NYS2d 375 [2009]). “The regulation 

must also be applicable to the facts and be the proximate cause of the plaintiff’s injury” (Buckley 

v Columbia Grammar and Preparatory, 44 AD3d 263, 271, 841 NYS2d 249 [1st Dept 2007]).

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“Section 241(6) subjects owners and contractors to liability for failing to adhere to 

required safety standards whether or not they themselves are negligent. Supervision of the work, 

control of the worksite, or actual or constructive notice of a violation of the Industrial Code are 

not necessary to impose vicarious liability against owners and general contractors, so long as 

some actor in the construction chain was negligent” (Leonard v City of New York, 216 AD3d 51, 

55-56, 188 NYS3d 471 [1st Dept 2023]). 

SMI seeks to dismiss plaintiff’s Labor Law claims to the extent they are based on 

Industrial Code Sections 23-1.22(b)(2), (3), (4) and section (c)(1)-(2). 

Plaintiff only addresses 23-1.22(b)(2) in his opposition. This section provides that “(2) 

Runways and ramps constructed for the use of persons only shall be at least 18 inches in width 

and shall be constructed of planking at least two inches thick full size or metal of equivalent 

strength. Such surface shall be substantially supported and braced to prevent excessive spring or 

deflection. Where planking is used it shall be laid close, butt jointed and securely nailed.”

The Court denies the branch of the motion that seeks to dismiss 23-1.22(b)(2) as the 

record shows that there are issues of fact regarding the width of the planks. Plaintiff testified that 

each plank was about four to five inches wide and that four planks together would stretch 

between 16-20 inches in width (NYSCEF Doc. No. 119 at 85). The expert affidavit from SMI 

does not compel the Court to grant the motion; the expert contends that plaintiff testified that 

each plank was 1 to 1 1⁄2 feet in width (NYSCEF Doc. No. 125, ¶ 7). But, as noted above, 

plaintiff testified that the planks were four to five inches wide and the neither the expert affidavit 

nor SMI’s initial memo of law (NYSCEF Doc. No. 113 at 12) cites to plaintiff’s testimony where 

he says the planks were 1 to 1 1⁄2 feet in width and therefore, when laid together, would have 

been well beyond the 18-inch requirement. 

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In reply, SMI argues in paragraph 38 in NYSCEF Doc. No. 189 that plaintiff testified that 

the width of the planks would make the path four to six feet wide and cites to page 84 of 

plaintiff’s deposition testimony. But a review of that citation and the following page does not 

yield testimony that the planks would stretch four to six feet in width; rather plaintiff agreed it 

would stretch 16-20 inches as noted above. Of course, the width here is important because 

plaintiff’s deposition testimony alleged that he was hit by a coworker attempting to walk past 

him. That is, the lack of width may have been a proximate cause of the accident. 

However, the remaining Industrial Code sections are severed and dismissed as plaintiff 

did not address them—this includes 23-1.22(b)(3), (4) and section (c)(1)-(2).

Amendment

Plaintiff cross-moves to add Industrial Code 23-1.7(b) to his 241(6) claim. This section 

relates to hazardous openings and specifically provides that an opening should be “guarded by . . 

. a safety railing.” 

SMI claims that it faces unfair surprise given the late date of this proposed amendment. 

It claims that a note of issue has already been filed.

The Court grants this branch of plaintiff’s cross-motion. As an initial matter, the Court 

observes that there is no current valid note of issue. This Court struck the note of issue in a 

decision dated November 27, 2023 and there is a conference scheduled for May 2, 2024 

(NYSCEF Doc. No. 187). The fact that the case is still on the trial calendar derives from the fact 

that defendants appear to have never served a copy of the Court’s decision (NYSCEF Doc. No. 

165) on the appropriate Court office as directed in that decision to effectuate the removal of this 

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case from the trial calendar. Therefore, SMI cannot claim unfair surprise or any prejudice 

because the note of issue was stricken.3

Labor Law 200

Labor Law § 200 “codifies landowners’ and general contractors’ common-law duty to 

maintain a safe workplace” (Ross v Curtis-Palmer Hydro-Electric Co., 81 NY3d 494, 505, 601 

NYS2d 49 [1993]). “[R]ecovery against the owner or general contractor cannot be had unless it 

is shown that the party to be charged exercised some supervisory control over the operation . . . 

[A]n owner or general contractor should not be held responsible for the negligent acts of others 

over whom the owner or general contractor had no direction or control” (id. [internal quotations 

and citation omitted]). 

“Claims for personal injury under this statute and the common law fall under two broad 

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, 143-44, 950 NYS2d 35 [1st Dept 2012]). “Where an existing 

defect or dangerous condition caused the injury, liability attaches if the owner or general 

contractor created the condition or had actual or constructive notice of it” (id. at 144). 

“Where an alleged defect or dangerous condition arises from a subcontractor’s methods 

over which the defendant exercises no supervisory control, liability will not attach under either 

the common law or section 200” (Buckley v Columbia Grammar & Preparatory, 44 AD3d 263, 

272, 841 NYS2d 249 [1st Dept 2007]).

3

 Curiously, defendants previously moved to strike the note of issue, won the motion, and now claim prejudice 

because there is a note of issue. Either defendants are not in command of the history of this case or the argument is 

borderline frivolous. Either way, the amendment is allowed.

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SMI argues that it had no control over the means and methods of plaintiff’s work for 

Jovin. It claims that no railings were required because the height of the excavated area below 

was only two feet. 

Plaintiff contends in opposition that SMI’s superintendent testified that he had safety 

responsibilities. 

In fact, he testified that “we’d take care of everything, you know, safety wise” (NYSCEF 

Doc. No. 121 at 11). He added that SMI handled “site safety issues” for the project at issue here 

(id. at 12). SMI’s witness even testified that “I mean, I walk around the job. If guys didn’t have 

hard hats on, if there was a handrail off, if something looked dangerous, I’d – we’d fix it or we’d 

bring it to someone’s attention and get it done, you know, fixed it” (id. at 65). He admitted that 

on the day of plaintiff’s accident it would have been his responsibility to ensure that Jovin 

employees “had a safe way to exit and enter the basement” (id. at 66). 

This testimony compels the Court deny this branch of SMI’s motion. Its superintendent 

admitted that he was responsible for site safety and would walk around the job site to ensure that 

the environment was safe. That raises an issue of fact over the degree of control that SMI 

exerted over plaintiff, particularly with regards to the safety issues raised in this motion. Put 

another way, a fact finder must consider whether SMI should have put in a railing to ensure that 

workers removing debris, such as plaintiff, did not risk falling into the excavated area. And SMI 

admits it was its job to fix safety problems. 

The Court observes that Industrial Code Section 23-1.22(b)(4) requires that there be a 

railing where there is a height of more than four feet. But that is not dispositive as plaintiff is not 

seeking relief under that Industrial Code section and it does not provide a complete defense to a 

Labor Law § 200 claim. Labor Law § 200 is merely a codification of common law negligence 

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principles; while this Industrial Code section may be persuasive it is not a basis to grant 

summary judgment as a matter of law. A fact finder could conclude that the pathway plaintiff 

was asked to walk across with a heavy load of debris was not safe for that task and find that SMI 

was negligent as it readily admits it was supposed to ensure the jobsite’s safety. Plus, as will be 

discussed below, Interior Rock’s foreman observed that no one should have been walking across 

these planks. 

MS005

In this motion, Interior Rock moves for summary judgment. It explains that it was hired 

to do excavation and underpinning work at the jobsite. Interior Rock argues that it had no 

responsibility for overall safety and was not obligated to oversee workers’ entry and exit from 

the basement where plaintiff was working. It insists that it procured an insurance policy as 

required under its contract with SMI that names both SMI and VillageFH as additional insureds. 

It claims that SMI’s request for defense and indemnity against it is therefore without merit 

because it had nothing to do with Jovin’s demolition work. 

In opposition, SMI claims that Interior Rock was the entity that laid down the wooden 

planks at issue and that it was Interior Rock that would have put any fall protection if it were 

necessary. However, SMI’s opposition is completely silent with respect to its cause of action that 

Interior Rock should have procured insurance. 

The Court denies the motion because of the inconsistent testimony by Interior Rock’s 

witnesses. Interior Rock’s president testified that he never saw any wooden planks on the ground 

(NYSCEF Doc. No. 150 at 33). When asked about plaintiff’s testimony concerning the planks, 

he insisted he had no idea what plaintiff was talking about (id. at 33-34). In fact, Interior Rock’s 

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president insisted that he could not recall any wooden planking at all (NYSCEF Doc. No. 150 at 

37). However, his nephew (who was also the foreman on the site) testified that Interior Rock put 

down planks (NYSCEF Doc. No. 151 at 28). This witness also emphasized that no one should 

walk across these planks “Because they would have been there for fall protection. That was their 

purpose” (id. at 87). 

This Court cannot make any conclusions as a matter of law based on these conflicting 

testimonies. The Court cannot assess how to evaluate the testimony of Interior Rock’s president 

and that of his nephew; that is for a fact finder. Accordingly, the Court cannot award summary 

judgment to any party on the indemnification causes of action as there is an issue of fact about 

whether Interior Rocks put the planks down. 

The Court, however, dismisses the cause of action against Interior Rock for failure to 

procure insurance. Interior Rock included proof that it obtained insurance and SMI did not raise

an issue of fact to suggest that Interior Rock failed to do so.

Accordingly, it is hereby

ORDERED that VillageFH, LLC and SMI Construction Management’s motion (MS004) 

for summary judgment dismissing all claims against it is granted only the extent that (1) all 

claims against VillageFH, LLC are severed and dismissed and (2) plaintiff’s causes of action 

against SMI Construction Management for Labor Law § 241-a and those portions of plaintiff’s 

Labor Law § 241(6) based on Industrial Code Sections 23-1.22(b)(3), (4) and sections (c)(1)-(2) 

are severed and dismissed and denied with respect to the remaining relief requested; and it is 

further

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ORDERED that plaintiff’s cross-motion is granted only to the extent that the branch of 

the motion for leave to amend his bill of particulars is granted and the remaining relief is denied; 

and it is further

ORDERED that Interior Rock, Inc’s motion (MS005) is granted only to the extent that 

the claim asserted against it for failure to procure insurance is dismissed and denied with respect 

to the remaining relief requested. 

4/1/2024 $SIG$

DATE ARLENE P. BLUTH, J.S.C.

CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

GRANTED DENIED GRANTED IN PART X OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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