Dolcimascolo v 701 7th Prop. Owner, LLC

2024 NY Slip Op 30782(U)

March 12, 2024

Supreme Court, New York County

Docket Number: Index No. 156779/2018

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.
156779/2018 DOLCIMASCOLO, MICHAEL vs. 701 7TH PROPERTY OWNER, LLC

Motion No. 003 004

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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK: PART 14

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DECISION + ORDER ON 

MOTION

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MOTION DATE N/A, N/A

MOTION SEQ. NO. 003 004

MICHAEL DOLCIMASCOLO,

 Plaintiff, 

- v -

701 7TH PROPERTY OWNER, LLC, CNY 

CONSTRUCTION 701 LLC,

 Defendants. 

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HON. ARLENE P. BLUTH: 

The following e-filed documents, listed by NYSCEF document number (Motion 003) 121, 122, 123, 124, 

125, 126, 127, 128, 129, 156, 157, 158, 159, 160, 165, 167

were read on this motion to/for SUMMARY JUDGMENT .

The following e-filed documents, listed by NYSCEF document number (Motion 004) 130, 131, 132, 133, 

134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 

154, 155, 162, 166

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

Both plaintiff’s motion for summary judgment (MS 003) and defendants’ cross-motion 

for summary judgment dismissing plaintiff’s complaint (MS 004) are granted in part and denied 

in part.

Background

Plaintiff is an employee of Navillus Tile, Inc., a subcontractor hired by defendant general 

contractor CNY Construction 701 LLC (“CNY”). Navillus supplied a crane for construction 

work at a property owned by defendant 701 7th Property Owner (“Owner”). Plaintiff alleges that 

he was struck by an I-beam as it was being hoisted, and dropped, from a truck bed. 

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On the day of the accident, plaintiff worked as a flagman directing pedestrians around the 

construction zone. His co-worker, Martin Carmody, a signalman, was attempting to direct a 30-

foot steel I-beam into a large flatbed truck trailer from approximately 30 floors above the ground. 

To do this, the truck had to be parked in a corral zone for loading and unloading, and the 

workers, communicating via radio, used a large crane with hooks to lower the I-beam into the 

truck bed. The crane operator lowering the beam, Michael Mulligan, was unable to see Carmody, 

the signalman who stood in the truck, and they had to rely on radio communications from each 

other to complete the task. 

As the beam was lowered, Carmody, who got no help from the truck’s driver, attempted 

to straighten the I-beam into the truck bed alone, placing his hand on the side of the beam. 

Plaintiff either volunteered, or Carmody requested, two wire slings to secure the beam, which 

plaintiff claims he provided to Carmody to assist in the unloading process. Thus, although 

plaintiff was a flagman, he entered the corral zone to deliver the slings. Carmody removed the 

hooks from the beam and radioed to Mulligan to lift the hooks as the beam was now in place on 

the truck. Carmody testified he had to radio to Mulligan at least three times because, for an 

unknown reason, Mulligan did not raise the hooks. Carmody briefly turned away from the beam 

to check if he was on the right radio channel, and during that time, the hooks were lifted. In the 

suddenness, one hook struck the flange of the beam, causing the beam to lift and fall off the truck 

bed. 

At the time, plaintiff was standing approximately eighteen feet from the edge of the truck 

observing the process. According to plaintiff, when the beam slid off the truck toward him, he 

lifted his hands over his head to protect himself. The beam struck him in the hands, tossing him 

back against a plywood wall. The beam also hit his legs as it bounced on the ground, forcing 

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plaintiff to fall forward on top of the beam. Plaintiff alleges he sustained several severe injuries

and was rushed to the hospital. He filed the instant action alleging various labor law violations. 

Defendants, however, contend that the beam hit the ground first and plaintiff fell on top of it, 

refuting plaintiff’s labor law claims.

MS 003

Plaintiff now brings a motion for summary judgment (MS 003) on his Labor Law § 

240(1) and 241(6) claims. He contends that the beam was being hoisted and fell from an 

elevation on top of him. He alleges that defendants failed to properly equip the beam with proper 

safety devices that would prevent this kind of accident and argues that defendants violated 

industrial code sections regarding safety devices for hoisting a beam and proper load handling. 

In opposition, defendants argue that the beam hit the ground first before plaintiff fell on 

top of it. Because of this, there is no proper claim under § 240(1) as plaintiff’s injuries are not the 

result of an elevation-related accident. Defendants contend the incident reports from the day of 

the accident provide that plaintiff fell on top of the beam after it hit the ground. According to 

defendants, this precludes recovery under § 240(1) as this statute contemplates injuries that flow 

from the force of gravity. Moreover, defendants assert that the beam fell off the bed of the truck 

because Carmody and Mulligan had communication issues, not because of any failure of safety 

devices. Defendants also argue that plaintiff was not authorized to be in the corral as his assigned 

position that day was to work as a flagman. Furthermore, defendants contend that all Industrial 

Code violations in the complaint, not just those plaintiff moves on, are not applicable to 

plaintiff’s accident. As to the violations plaintiff moves on, defendants argue that the Industrial 

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Code sections are inapplicable because the beam was being lowered, not hoisted, and the tools 

referenced in the relevant code were not being used at the time. 

In reply, plaintiff contends that there are no issues of fact relating to the Labor Law §

240(1) claim. Reliance on Carmody’s testimony is misleading because he did not witness the 

accident, he only observed plaintiff after the accident occurred. Additionally, plaintiff disputes 

the admissibility of the accident reports because none of the individuals from the reports 

proffered testimony or affidavits establishing admissibility of the reports. Plaintiff further argues 

that he was not working outside the scope of his flagman duties, as he had performed such work 

in the past and was offering assistance to his coworker. Finally, plaintiff asserts there are no 

issues of fact as to Industrial Code violations as defendants’ arguments are unsupported while 

plaintiff relied on expert testimony to demonstrate how defendants violated the Industrial Code. 

MS 004

Defendants also move for summary judgment dismissing the complaint. Defendants 

contend that plaintiff’s injury did not result from an elevation-related risk, therefore any claims 

under Labor Law § 240(1) should be dismissed. Additionally, defendants argue that plaintiff was 

not authorized to be in the corral as his assigned duty on the day of the accident was as a 

flagman. Defendants further assert that plaintiff’s claims for violations under the Industrial Code

at 12 NYCRR § 23-1.1-1.5, § 23-1.7-1.8, § 23-5.1, § 23-6.1(a)-(e) & (h), § 23-6.2-6.3, § 23-8.1-

8.2, § 23-8.4, § 23-9.1, 9.2, 9.6, OSHA regulations, and American National Standards Institute,

are insufficiently specific, and that the accident was not caused by a defect in the tower crane. 

Finally, defendants argue that any claims asserted under Labor Law § 200 should be dismissed as 

they did not assert actual supervision or control over the work at the construction site. 

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In response, plaintiff contends that his own testimony refutes defendants’ version of 

events, and instead shows that he was struck by the falling beam and did not fall on top of it. 

According to plaintiff, Carmody’s testimony is irrelevant as he only observed plaintiff after the 

accident occurred. Plaintiff reiterates his position that the incident reports are not admissible 

evidence. Additionally, plaintiff maintains that he was not acting outside the scope of his 

employment, as he was performing work that was ancillary to his duties and assisting his 

coworker who had requested plaintiff’s help. As to his claim for violation of industrial codes, 

plaintiff contends that defendants do not refute the specific sections of the code that plaintiff 

references. Finally, plaintiff argues there are questions of fact as to whether CNY exercised 

supervision and control over the work, as testimony established that CNY hired security to 

oversee the worksite. 

In reply, defendants argue that plaintiff was never struck by the beam, and testimony 

from his coworkers attests to this fact. Defendants contend that the incident reports are all 

authenticated by either plaintiff or a representative of CNY. Additionally, defendants contend 

that plaintiff failed to show a causal nexus between his injury and a failure of a safety device, as 

the accident was caused by Carmody’s inability to communicate with the crane operator.

Defendants further argue that plaintiff failed to raise an issue of fact regarding the scope of his 

employment, as he was clearly not authorized to be inside the corral and Carmody never stated 

that he requested plaintiff’s assistance. Defendants contend that plaintiff expressly stated he is 

not moving forward on his claims for violation of 12 NYCRR § 23-8.1, the only claims plaintiff 

attempted to preserve in his response. Therefore, defendants argue that they are entitled to 

dismissal. Defendants further maintain that the true test for supervision is whether CNY 

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exercised control over the landing of the beam, not whether they simply had control. Thus, 

defendants argue they are entitled to dismissal of the Labor Law § 200 claim. 

Discussion

To be entitled to the remedy of summary judgment, the moving party “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 from the case” (Winegrad v New York 

Univ. Med. Ctr., 64 NY2d 851, 853, 487 NYS2d 316 [1985]). The failure to make such a prima 

facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers 

(id.). When deciding a summary judgment motion, the court views the alleged facts in the light 

most favorable to the non-moving party (Sosa v 46th St. Dev. LLC, 101 AD3d 490, 492 [1st Dept 

2012]).

Once a movant meets its initial burden, the burden shifts to the opponent, who must then 

produce sufficient evidence to establish the existence of a triable issue of fact (Zuckerman v City 

of New York, 49 NY2d 557, 560, 427 NYS2d 595 [1980]). The court’s task in deciding a 

summary judgment motion is to determine whether there are bonafide issues of fact and not to 

delve into or resolve issues of credibility (Vega v Restani Constr. Corp., 18 NY3d 499, 505, 942 

NYS2d 13 [2012]). If the court is unsure whether a triable issue of fact exists, or can reasonably 

conclude that fact is arguable, the motion must be denied (Tronlone v Lac d'Amiante Du Quebec, 

Ltee, 297 AD2d 528, 528-29, 747 NYS2d 79 [1st Dept 2002], affd 99 NY2d 647, 760 NYS2d 96 

[2003]). 

Labor Law § 240(1)

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“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]).

The crux of this case is whether plaintiff tripped over the beam after it hit the ground, or 

whether the beam knocked into him, resulting in his injuries. The only other witness to the 

accident, Martin Carmody, testified that he “had [his] side to [plaintiff]” as he faced the front of 

the truck (NYSCEF Doc. No. 128 Carmody Dep. 61:14-62:2-5). Carmody further testifies that 

all he saw was that plaintiff “fell on top of the beam,” (id. 46:23). Moreover, Carmody testified 

that he never saw plaintiff hit the plywood wall (id. at 63:14-16).

Alternatively, according to plaintiff, Carmody had his back to plaintiff immediately 

before the accident (NYSCEF Doc. No. 125 Dolcimascolo Dep. 108:2-3). Plaintiff also contends 

that, although everything happened very quickly, the beam hit his hands, pushed him into the 

plywood wall, and then hit the floor (id. at 131:17-25). 

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While Carmody saw the beam hit the ground and plaintiff fall on top of it, he did not see 

what happened from the time the beam fell off the truck until it hit the ground; this means he 

missed the exact moments plaintiff claims the beam was hitting him and knocking him into the 

plywood wall. Although the Court understands that everything happened in a matter of seconds, 

the papers submitted on this motion indicate that Carmody did not witness the entire accident. 

And so no one but plaintiff saw the beam knocking him around.

“[W]here a plaintiff is the sole witness to an accident, an issue of fact may exist where 

he or she provides inconsistent accounts of the accident. . . his or her account of the accident is 

contradicted by other evidence. . . or his or her credibility is otherwise called into question with 

regard to the accident,” (Smigielski v Teachers Ins. & Annuity Ass’n of Am., 137 AD3d 676, 676, 

29 NYS3d 272 [1st Dept 2016] [internal quotations and citations omitted]).

Defendants rely on incident reports from the time of the injury to demonstrate 

inconsistencies in plaintiff’s version of events; however, none of these reports are verified by any 

of the people who created them and defendants do not submit any affidavits from people who 

participated in writing the reports. Moreover, plaintiff disagreed with the version of events listed 

and could not recall participating in the creation of the reports (NYSCEF Doc. No. 138

Dolcimascolo Dep. 39:5-47:16-22). Accordingly, these reports are inadmissible hearsay and do 

not constitute an issue of fact (see Figueroa v. Luna, 281 AD2d 204, 206, 721 NYS2d 635 [1st

Dept 2001] [finding that “a motion for summary judgment requires the opposing party to 

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

issues of fact which require a trial of the action”] [internal citations and quotations omitted]).

Therefore, there is only one version of events upon which this Court can rely, and it is 

plaintiff’s testimony. Carmody did not see the beam between the time it left the truck until it hit 

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the ground and the written reports are hearsay. On the other hand, plaintiff is consistent with his 

story in each of his deposition transcripts, his sworn testimony. The beam fell off the truck and 

hit plaintiff, knocking him into the wall. Obviously, if the beam fell from such a height that 

plaintiff lifted his hands to protect himself, the beam constituted an elevation-related risk that 

qualifies for coverage under the scaffold law. Were it not for gravity, the beam would not have 

fallen off the truck. Therefore, this branch of plaintiff’s motion is granted, and summary 

judgment dismissing this branch of plaintiff’s complaint is denied. 

Scope of Employment

There is no dispute that plaintiff suffered an injury while engaged in performing 

construction-related tasks, but this Court does not agree that plaintiff acted beyond the scope of 

his employment. Whether or not Carmody requested plaintiff’s assistance in landing the beam is 

irrelevant. Plaintiff completed his duties as a flagman and, be it voluntarily or obligingly, 

grabbed the wire slings for Carmody to secure the beam. Plaintiff’s expert testified that such 

actions are not uncommon in the construction industry (NYSCEF Doc. No. 160 at 3). According 

to plaintiff’s expert, “the fact that plaintiff was not certified to be in the loading zone (because he 

is not a rigger) does not, in the construction industry, mean that he was not permitted to enter the 

loading zone” (id.). Defendant did not contradict this point with sworn testimony.

It has long been the law that even if a plaintiff is not performing his assigned duties, so 

long as he is assisting co-workers in related work on the premises, he will still be protected by 

the scaffold law (see Roberts v Caldwell, 23 AD3d 210, 806 NYS2d 8 [1st Dept 2005] [holding 

that a plaintiff who fell from a ladder doing renovations, although not supposed to be on the 

ladder, was still protected by Labor Law § 240(1) because he was helping co-workers on the 

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premises doing renovation-related work]; Calaway v Metro Roofing and Sheet Metal Works, Inc. 

284 AD2d 285, 286, 727 NYS2d 426, [1st Dept 2001][finding that plaintiff was not acting 

outside the scope of his employment in throwing chunks of ice off a roof as he had done so just 

days before the accident]). 

To hold otherwise would create scenarios in which laborers cannot assist their coworkers 

in menial duties, such as fetching a tool, because they would fear that any resulting accident 

would not be covered by the law. The Court declines to draw an arbitrary line under these 

circumstances. 

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]).

Plaintiff claims there was a violation of 12 NYCRR 23-8.1(e)-(f), which provide: 

(e) Load Handling. (3) Where slings are used to hoist material of long length, 

spreader bars shall be used to space and keep the sling legs in proper balance. . . 

(5) In steel erection, when a load is suspended from a mobile crane, tower crane or 

derrick at two or more points with slings, the eyes of the lifting legs of the slings 

shall be shackled together and this shackle or the eyes of the shackled slings shall 

be placed on the hook. Alternatively, the eyes of the lifting legs may be shackled 

directly to the hoisting block, ball or balance beam. The eyes may be placed on the 

lifting hook without shackles if the hook is of the safety type. 

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(f) Hoisting the load. (1) Before starting to hoist with a mobile crane, tower crane 

or derrick the following inspection for unsafe conditions shall be made: . . . (iii) 

The hook shall be brought over the load in such manner and location as to prevent 

the load from swinging when hoisting is started. (iv) The load is well secured and 

properly balanced in the sling or lifting device before it is lifted more than a few 

inches. (2) During the hoisting operation the following conditions shall be met: (i) 

There shall be no sudden acceleration or deceleration of the moving load unless 

required by emergency conditions. (ii) The load shall not contact any obstruction. . 

. (6) Mobile cranes, tower cranes and derricks shall not hoist or carry any load over 

and above any person except as otherwise provided in this Part (rule).

Defendants highlight that 23-8.1(e)(3) is inapplicable because slings were not 

used to hoist the beam. Plaintiff’s expert provides no insight as to whether slings should 

have been used, and this Court cannot reach its own, independent conclusion. However, 

this regulation was meant to apply to incidents in which a sling is used to lift a beam, 

whereas only hooks were used in this instance. Thus, because no sling was used to hoist 

the beam, 12 NYCRR 23-8.1(e) is inapplicable to plaintiff’s claims and it is therefore 

severed and dismissed. 

Defendants further argue that 23-8.1(f) is inapplicable because the beam was 

being landed, not hoisted. This Court disagrees. As plaintiff’s expert explains, “once the 

hook lifted the steel beam, the beam became a load that had to be hoisted as required by 

the Industrial Code to ensure that no one was injured,” (NYSCEF Doc. No. 160 at 5). 

According to plaintiff’s expert, the hook used to hoist the beam was not brought over the 

beam to prevent swinging, and in violation of (f)(2)(i)-(ii), the beam swung and 

ultimately struck the ground (id. at 5). The Court agrees that the beam was in the midst of 

being hoisted and lowered. To only apply this regulation in instances where a beam is 

being lifted instead of landed contravenes the purpose of this code section. The purpose 

of the law is to protect workers from objects that are elevated above them, even if those 

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objects are moving toward the ground. Defendants’ argument – that beams have to be 

lifted according to regulations but those safety regulations do not apply to lowering the 

beams from the sky – makes no sense. Therefore, defendants’ motion for summary 

judgment dismissing this portion of plaintiff’s motion is denied. 

Defendant’s Cross-Motion Dismissing 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]).

The central question on this branch of defendants’ motion is whether they had 

supervisory control over plaintiff. Plaintiff admits that 701 7th Property Owner exerted no 

control over the worksite; however, plaintiff argues that whether or not CNY exercised control is 

irrelevant, and the only question of fact is whether the contract granted CNY the ability to 

control the worksite. This Court finds there is a question of fact as to the obligations of CNY. 

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According to testimony by a CNY representative, CNY did not have a supervisor or 

foreman assigned to the corral (NYSCEF Doc. No. 127 Latreille Dep. 20:24-21:2). The same 

representative testified that he was in charge of overseeing all concrete operations in terms of 

“logistics. . . scheduling. . . directing. . . [and] testing” the quality of the work (id. at 13:8-16). 

Similarly, plaintiff contends that CNY hired security for the premises, suggesting a level of 

control over the worksite. While a security agency does not control the method and means of the 

how a job is carried out, contracting for a security agency does demonstrate that CNY took steps 

to control the worksite itself. It is unclear to what extent CNY did or did not direct plaintiff’s 

duties, as despite the fact that CNY was not present on the day of the accident, the representative 

testified that “CNY was responsible for scheduling and oversight of the whole project,” (id. at 

121:22-23). To what extent CNY controlled the worksite is best left to a trier of fact. Therefore, 

this branch of defendants’ cross-motion is denied. 

Accordingly, it is hereby 

ORDERED that plaintiff’s motion for summary judgment as to his Labor Law § 240(1) 

claim is granted; and it is further

ORDERED that plaintiff’s motion for summary judgment as to his Labor Law § 241(6) 

claim is granted only with respect to 12 NYCRR 23-8.1(f); and it is further

ORDERED that defendants’ motion for summary judgment dismissing plaintiff’s claim 

under Labor Law § 240(1) is denied; and it is further

ORDERED that defendants’ motion for summary judgment dismissing plaintiff’s claim 

under Labor Law § 241(6) is granted with respect to 12 NYCRR § 23-1.1-1.5, § 23-1.7-1.8, §

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23-5.1, § 23-6.1(a)-(e) & (h), § 23-6.2-6.3, § 23-8.1(e) & 8.2, § 23-8.4, § 23-9.1, 9.2, and 9.6;

and it is further

ORDERED that defendants’ motion for summary judgment dismissing plaintiff’s claim 

under Labor Law § 200 is denied.

3/12/2024 $SIG$

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

CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

GRANTED DENIED X GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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