Morales v 88th Avenue Owner, LLC
Attorneys and Parties
Brief Summary
Construction site injury litigation under New York Labor Law § 240(1) [imposes a nondelegable duty on owners, contractors, and their agents to provide proper protection from elevation-related hazards] and Labor Law § 241(6) [imposes a nondelegable duty to provide reasonable and adequate protection and safety, requiring proof of a violation of an applicable Industrial Code provision], including 12 NYCRR (New York Codes, Rules and Regulations) 23-1.8(a) [requires eye protection for workers engaged in welding, burning, cutting, chipping, grinding, or any operation that may endanger the eyes], and third-party practice under CPLR 1010 [permits dismissal of a third-party complaint, typically without prejudice, to avoid undue delay or prejudice].
Granted plaintiff summary judgment on liability under Labor Law § 240(1) and under Labor Law § 241(6) predicated on 12 NYCRR 23-1.8(a); dismissed the second third-party complaint with prejudice under CPLR 1010.
The grant of summary judgment to the plaintiff on Labor Law § 240(1) and on Labor Law § 241(6) predicated on 12 NYCRR 23-1.8(a) was reversed; summary judgment was instead granted to the owner and general manager dismissing those claims. The dismissal of the second third-party complaint was modified from with prejudice to without prejudice.
Sparks from ironwork above were not objects requiring securing and did not present an elevation-related hazard beyond ordinary construction risks, rendering Labor Law § 240(1) inapplicable. 12 NYCRR 23-1.8(a) was inapplicable because the plaintiff was not personally engaged in welding, burning, cutting, chipping, or grinding, nor any operation endangering the eyes. The CPLR 1010 dismissal was proper due to an unjustified four-year delay in commencing the second third-party action, but dismissal with prejudice was unauthorized.
Background
On May 11, 2017, the plaintiff, a foreman employed by Construction Directions, LLC at a Queens construction site, was struck in the eye by a spark generated by ironwork being performed on the floor above. He sued the property owner, 88th Avenue Owner, LLC, and the project's general manager, NY Developers & Managers, Inc., alleging violations of Labor Law § 240(1) and § 241(6), including a claim under 12 NYCRR 23-1.8(a). In July 2023, the owner and general manager initiated a second third-party action against subcontractors Feinstein Iron Works, Inc. and Construction Realty Safety Group, Inc., seeking contribution and indemnification.
Lower Court Decision
The Supreme Court, Kings County (October 5, 2023), granted plaintiff summary judgment on liability for Labor Law § 240(1) and for Labor Law § 241(6) to the extent predicated on 12 NYCRR 23-1.8(a). It also granted the subcontractors' CPLR 1010 motions and dismissed the second third-party complaint with prejudice.
Appellate Division Reversal
The Appellate Division modified the order: (1) denied plaintiff’s summary judgment on Labor Law § 240(1) and on Labor Law § 241(6) predicated on 12 NYCRR 23-1.8(a); (2) upon searching the record under CPLR 3212(b) [authorizes the court to search the record and grant summary judgment to a nonmoving party], awarded summary judgment to 88th Avenue Owner, LLC and NY Developers & Managers, Inc. dismissing the Labor Law § 240(1) claim and the portion of the Labor Law § 241(6) claim based on 12 NYCRR 23-1.8(a); and (3) modified the CPLR 1010 disposition to dismiss the second third-party complaint without prejudice, otherwise affirming the CPLR 1010 dismissal due to the defendants’ unjustified four-year delay. One bill of costs was awarded to the defendants second third-party plaintiffs, payable by the plaintiff.
Legal Significance
Clarifies that transient sparks from work on an upper floor are not the type of elevation-related hazard contemplated by Labor Law § 240(1). Reiterates that 12 NYCRR 23-1.8(a) applies only where the injured worker is personally engaged in welding, cutting, chipping, grinding, or similarly eye-endangering operations. Emphasizes courts’ discretion under CPLR 1010 to dismiss delayed third-party claims to prevent undue delay or prejudice, and that such dismissals should be without prejudice. Confirms appellate authority under CPLR 3212(b) to search the record and award summary judgment to nonmovants when the record establishes inapplicability as a matter of law.
Plaintiffs cannot invoke Labor Law § 240(1) for injuries from sparks absent an elevation-related hazard, and § 241(6) liability based on 12 NYCRR 23-1.8(a) requires proof the worker was performing an eye-endangering operation. Delayed impleader risks dismissal under CPLR 1010, typically without prejudice.