Jose Moises-Ortiz et al. v. FDB Acquisition LLC, et al.
Attorneys and Parties
Brief Summary
Construction site safety under New York Labor Law § 240(1) [imposes absolute liability on owners and contractors for failure to furnish or erect safety devices to protect workers from elevation-related risks] and Labor Law § 241(6) [imposes a nondelegable duty on owners and contractors to comply with specific, applicable Industrial Code rules] arising from underpinning and excavation that exposed a neighboring building’s deteriorated façade, leading to a falling concrete hazard.
The trial court denied plaintiffs’ summary judgment on Labor Law § 240(1) and sua sponte dismissed that claim; denied plaintiffs’ Labor Law § 241(6) claim predicated on Industrial Code § 23-1.7(a)(1) [overhead hazards; protection from falling objects]; granted plaintiffs’ Labor Law § 241(6) claim predicated on Industrial Code § 23-4.1 [general requirements for excavations]; and denied RNC’s motion to dismiss plaintiffs’ lost earnings claim.
The dismissal of the Labor Law § 240(1) claim and the denial of plaintiffs’ summary judgment on that claim.
The falling concrete from the newly exposed adjacent façade was a foreseeable elevation-related risk given the excavation, the need for an underpinning/support plan, and visible deterioration (voids, cold joints, lack of reinforcement). Defendants failed to provide safety devices to secure the neighboring foundation; defendants’ expert was conclusory. Misseritti was distinguishable because plaintiff was working below grade during ongoing underpinning, and the neighboring foundation was an object requiring securing for the work.
Background
FDB Acquisition LLC owned a project to demolish an existing building and construct a two-story replacement. Pav-Lak Contracting, Inc. served as construction manager and subcontracted foundation work to RNC Industries, LLC. Excavation below the grade of an adjacent building required underpinning to support the neighbor’s foundation. While performing underpinning, plaintiff Jose Moises-Ortiz (an RNC employee) was struck by a large piece of concrete that dislodged from the adjacent building’s newly exposed, deteriorated façade.
Lower Court Decision
The Supreme Court, New York County, denied plaintiffs’ motion for summary judgment on Labor Law § 240(1) and sua sponte dismissed that claim; denied plaintiffs’ Labor Law § 241(6) claim based on Industrial Code § 23-1.7(a)(1); granted plaintiffs’ § 241(6) claim based on Industrial Code § 23-4.1; and denied RNC’s motion for summary judgment dismissing plaintiffs’ lost earnings claim.
Appellate Division Reversal
Modified on the law to grant plaintiffs’ motion for summary judgment on Labor Law § 240(1), and otherwise affirmed. The Court held the accident was a foreseeable elevation-related risk, defendants failed to provide proper securing/bracing during underpinning, and defendants’ expert’s affidavit was conclusory. Misseritti did not bar recovery because plaintiff was working below grade during ongoing underpinning and the neighboring foundation was an object requiring securing. The grant of § 240(1) liability rendered the § 241(6) liability issues academic. The denial of RNC’s motion on lost wages was properly sustained under Balbuena v IDR Realty LLC.
Legal Significance
Clarifies that when excavation/underpinning exposes a neighboring structure with evident deterioration, the risk of falling material is a foreseeable elevation-related hazard within Labor Law § 240(1), even if the falling item is part of a permanent structure. Distinguishes Misseritti by recognizing that structures adjacent to ongoing work may be “objects requiring securing” for purposes of the work. Confirms that once § 240(1) liability is established, § 241(6) liability becomes academic, and reaffirms that a worker’s lost earnings claim is not barred as a matter of law (Balbuena).
In underpinning/excavation projects, visible deterioration and lack of support for adjacent structures make falling-concrete hazards foreseeable; owners and contractors are strictly liable under Labor Law § 240(1) for failing to use adequate securing/shoring, and a § 240(1) win moots § 241(6) liability issues.