Barbosa v. 1169 Hoe LLC
Opinion
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Bureau Thomas J.K. Smith, State Reporter
Barbosa v 1169 Hoe LLC
2026 NY Slip Op 04367
July 9, 2026
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
Elisito De Jesus Lopez Barbosa, Plaintiff-Respondent-Appellant,
v
1169 Hoe LLC et al., Defendants-Appellants-Respondents.
Decided and Entered: July 09, 2026
Index No. 805465/21|Appeal No. 7028, M-3063|Case No. 2025-07924|
Before: Webber, J.P., Kennedy, Friedman, González, Shulman, JJ.
Litchfield Cavo LLP, New York (Paul J. Tramontano of counsel), and Kahana & Feld LLP, New York (Kharis Lund of counsel), for appellants-respondents.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Joshua Block of counsel), for respondent-appellant.
Order, Supreme Court, Bronx County (Myrna Socorro, J.), entered on or about November 14, 2025, which, to the extent appealed from as limited by the briefs, denied the branch of plaintiff's motion for summary judgment on the issue of liability under Labor Law § 240(1), granted the branch of his motion for summary judgment on the issue of liability under Labor Law § 241(6) insofar as predicated on Industrial Code (12 NYCRR) § 23-1.7(d), denied the branch of defendants' motion for summary judgment dismissing that portion of the Labor Law § 241(6) claim, and granted the branch of defendants' motion for summary judgment dismissing the common-law negligence and Labor Law §§ 200 and 240(1) claims, unanimously affirmed, without costs.
Plaintiff's testimony that he injured his back while lifting concrete forms after his foot slipped on rainwater and oil on the plywood floor established a prima facie violation of Industrial Code § 23-1.7(d) (see De Los Santos v Carlyle House Inc., 227 AD3d 542, 542 [1st Dept 2024]; Velasquez v 795 Columbus LLC, 103 AD3d 541, 541-542 [1st Dept 2013]). In opposition, defendants failed to adduce evidence showing that the presence of those substances was "inherent" to plaintiff's task of pulling concrete forms up to the third floor while the forms were pushed from the second floor through an opening between the floors (Bazdaric v Almah Partners LLC, 41 NY3d 310, 320 [2024]; see Lourenco v City of New York, 228 AD3d 577, 580 [1st Dept 2024]).
The court properly dismissed the Labor Law § 240(1) claim as the record is insufficient to support the conclusion that the approximately 16-by-2-foot concrete form being manually passed through the closely fitted floor opening required securing for the purposes of the undertaking (see Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267-268 [2001]). There is no evidence that the form fell or otherwise moved in an uncontrolled manner while being lifted, or that plaintiff's injuries were caused by an effort to prevent it from falling (cf. Alonzo v RP1185 LLC, 245 AD3d 584, 585 [1st Dept 2026]; Skow v Jones, Lang & Wooton Corp., 240 AD2d 194, 195 [1st Dept 1997], lv denied 94 NY2d 758 [1999]). Although plaintiff continued holding the concrete form when he slipped and injured his back, he testified that the form was halfway through the opening and that he did not know why he held onto it. Under these circumstances, plaintiff cannot demonstrate that his injuries were the direct consequence of an elevation-related hazard under Labor Law § 240(1) (see Fabrizi v 1095 Ave. of the Ams., L.L.C., 22 NY3d 658, 662-663 [2014]; see also Nicometi v Vineyards of Fredonia, LLC, 25 NY3d 90, 98-99 [2015]).
[*2]The common-law negligence and Labor Law § 200 claims were correctly dismissed as the rainwater and oil that allegedly contributed to the accident were transient conditions that, on this record, resulted from the means and methods by which the work was conducted (see Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139, 143-144 [1st Dept 2012]).
M — 3063 Barbosa v 1169 Hoe LLC, et al.
Motion for a stay of trial pending determination of appeal, denied
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: July 9, 2026
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