Calegari v Rinaldi Group, LLC 2025 NY Slip Op 31613(U) May 5, 2025 Supreme Court, New York County Docket Number: Index No. 150671/2021 Judge: Mary V. Rosado 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. [FILED: NEW YORK COUNTY CLERK 05/05/2025 04:54 P~ INDEX NO. 150671/2021 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 05/05/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice ------------------------------------------------------------------------------X INDEX NO. 150671/2021 SILVERIO ROCHA CALEGARI, MOTION DATE 05/31/2024 Plaintiff, MOTION SEQ. NO. 002 - V -
THE RINALDI GROUP, LLC, 106 WEST 56TH STREET DECISION + ORDER ON PROPERTY INVESTORS Ill, LLC, MOTION Defendant. --------------------------------------------------------------------------------X
THE RINALDI GROUP, LLC Third-Party Index No. 595507/2021 Plaintiff,
-against-
MOB DEVELOPMENT CORP.
Defendant. --------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 002) 61, 62, 63, 64, 65, 66,67,68,69, 70, 71, 72, 73, 78, 81, 82, 83, 84, 85, 88 were read on th is motion to/for JUDGMENT-SUMMARY
Upon the foregoing documents, and after oral argument, which took place on February 25,
2025, where Julio Cesar Roman, Esq. appeared for Plaintiff Silverio Rocha Calegari ("Plaintiff'),
Dennis S. Heffernan, Esq. appeared for Defendants The Rinaldi Group, LLC ("Rinaldi"), and 106
West 56 th Street Property Investors III, LLC ("106 West 56th Street"), and Carl A. Formicola, Esq.
appeared for Third-Party Defendant MDB Development Corp., Plaintiff's motion for summary
judgment on the issue of liability with respect to his Labor Law §§ 240(1) and 241 (6) claims is
granted in part and denied in part.
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[* 1] 1 of 5 [FILED: NEW YORK COUNTY CLERK 05/05/2025 04:54 P~ INDEX NO. 150671/2021 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 05/05/2025
I. Background
On December 2, 2020, Plaintiff was employed by MDB Development Corp. as a mason
employing stucco at a construction site at 106 West 56th Street, New York, New York (the "Site")
(NYSCEF Doc. 65 at 32; 35). Defendant 106 West 56 th owned the Site, while Rinaldi was the
general contractor and MDB Development Corp. was a subcontractor (NYSCEF Doc. 68 at 24-
25). Plaintiff moved materials back and forth from sidewalk bridge to the second floor using a
makeshift wooden ladder (NYSCEF Doc. 65 at 47-48). Plaintiff was climbing the ladder when the
ladder, which he testified was unsecured, moved and Plaintiff fell (Id. at 57). Plaintiffs supervisor,
Nicholas Fiorello, testified the ladder was the only way to access the second floor and that it was
provided by Rinaldi (NYSCEF Doc. 71 at 32). Mr. Fiorello could not recall whether the ladder
was properly secured on the date of Plaintiffs accident (Id. at 28) and he testified that because the
ladder was provided by Rinaldi, MDB did not inspect it (Id. at 50). An incident report authored by
Mr. Fiorello stated that Plaintiff slipped on the ladder, however Mr. Fiorello could not remember
the source of this information and he personally did not observe Plaintiff fall (Id. at 71-72). In this
motion, Plaintiff moves for partial summary judgment with respect to the issue of liability on his
Labor Law§§ 240(1) and 241(6) claims. Rinaldi and 106 West 56 th Street oppose.
II. Discussion
"Summary judgment is a drastic remedy, to be granted only where the moving party has
tendered sufficient evidence to demonstrate the absence of any material issues of fact." (Vega v
Restani Const. Corp., 18 NY3d 499,503 [2012]). Once this showing is made, the burden shifts to
the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to
establish the existence of material issues of fact which require a trial (See e.g., Zuckerman v City
of New York, 49 NY2d 557, 562 [1980]). The Court of Appeals has instructed Courts to interpret
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[* 2] 2 of 5 [FILED: NEW YORK COUNTY CLERK 05/05/2025 04:54 P~ INDEX NO. 150671/2021 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 05/05/2025
Labor Law §240(1) liberally to accomplish its purpose of ensuring workers are properly protected
against elevation related hazards (Zimmer v Chemung County Performing Arts, Inc., 65 NY2d 513
[1985]).
Plaintiffs motion for summary judgment on the issue ofliability with respect to his Labor
Law § 240(1) claim is granted. There is no dispute that Defendants are proper Labor Law
defendants. Nor is there any dispute that Plaintiff was engaged in construction work coming within
the ambit of Labor Law § 240(1 ). There is uncontroverted testimony from Plaintiff that he fell
after the makeshift ladder he was using moved while ascending from one floor to the next. When
a makeshift unsecured ladder moves or shifts, there is a prima facie violation of Labor Law §
240(1) (see Sanchez v MC 19 East Houston LLC, 216 AD3d 443,443 [1st Dept 2023]). Plaintiff
was not required to show the ladder was defective to establish his prima facie entitlement to
summary judgment under Labor Law § 240(1) (see Rodas-Garcia v NYC United LLC, 225 AD3d
556, 556 [1st Dept 2024]; Lin v JOO Wall Street Property LLC, 193 AD3d 650, 651 [1st Dept
2021 ]). Moreover, no party disputes that the makeshift ladder was only secured by rope on one
side, but the other side of the ladder remained unsecured, allowing it to move and cause Plaintiffs
fall. Indeed, when asked, Mr. Fiorello, Plaintiffs supervisor, could not recall whether the ladder
was properly secured. That the ladder did not move on prior occasions does not negate Plaintiffs
uncontroverted testimony that at the time of his accident, he fell because the unsecured ladder
moved.
Where there is a prima facie violation, it is impossible for a plaintiff to be considered the
sole proximate cause of his accident (Suazo v 501 Madison-Sutton LLC, 235 AD3d 513 [1st Dept
2025]). Nor do any issues of Plaintiffs comparative negligence preclude summary judgment on
the issue of liability with respect to his Labor Law § 240(1) claim (Rodriguez v City of New York,
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31 NY3d 312 [2018]). Moreover, the Defendants' reliance on their expert affidavit is insufficient
to raise an issue of fact where the Defendants' expert did not examine the ladder or location of
Plaintiffs accident, and instead relies on undated photographs of the ladder and merely resorts to
attacking Plaintiffs expert affidavit as speculative (Rivera v 7I 2 Fifth Ave. Owner LP, 229 AD3d
401,403 [1st Dept 2024] citing Ciborowski v 228 Thompson Realty, LLC, 189 AD3d 428 [1st Dept
2020]). Further, to the extent Defendants' expert attacks Plaintiffs expert's conclusions, that is
insufficient to deny summary judgment as Plaintiff is not required to produce expert testimony to
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Calegari v Rinaldi Group, LLC 2025 NY Slip Op 31613(U) May 5, 2025 Supreme Court, New York County Docket Number: Index No. 150671/2021 Judge: Mary V. Rosado 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. [FILED: NEW YORK COUNTY CLERK 05/05/2025 04:54 P~ INDEX NO. 150671/2021 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 05/05/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice ------------------------------------------------------------------------------X INDEX NO. 150671/2021 SILVERIO ROCHA CALEGARI, MOTION DATE 05/31/2024 Plaintiff, MOTION SEQ. NO. 002 - V -
THE RINALDI GROUP, LLC, 106 WEST 56TH STREET DECISION + ORDER ON PROPERTY INVESTORS Ill, LLC, MOTION Defendant. --------------------------------------------------------------------------------X
THE RINALDI GROUP, LLC Third-Party Index No. 595507/2021 Plaintiff,
-against-
MOB DEVELOPMENT CORP.
Defendant. --------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 002) 61, 62, 63, 64, 65, 66,67,68,69, 70, 71, 72, 73, 78, 81, 82, 83, 84, 85, 88 were read on th is motion to/for JUDGMENT-SUMMARY
Upon the foregoing documents, and after oral argument, which took place on February 25,
2025, where Julio Cesar Roman, Esq. appeared for Plaintiff Silverio Rocha Calegari ("Plaintiff'),
Dennis S. Heffernan, Esq. appeared for Defendants The Rinaldi Group, LLC ("Rinaldi"), and 106
West 56 th Street Property Investors III, LLC ("106 West 56th Street"), and Carl A. Formicola, Esq.
appeared for Third-Party Defendant MDB Development Corp., Plaintiff's motion for summary
judgment on the issue of liability with respect to his Labor Law §§ 240(1) and 241 (6) claims is
granted in part and denied in part.
150671/2021 CALEGARI, SILVERIO ROCHA vs. RINALDI GROUP, LLC Page 1 of 5 Motion No. 002
[* 1] 1 of 5 [FILED: NEW YORK COUNTY CLERK 05/05/2025 04:54 P~ INDEX NO. 150671/2021 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 05/05/2025
I. Background
On December 2, 2020, Plaintiff was employed by MDB Development Corp. as a mason
employing stucco at a construction site at 106 West 56th Street, New York, New York (the "Site")
(NYSCEF Doc. 65 at 32; 35). Defendant 106 West 56 th owned the Site, while Rinaldi was the
general contractor and MDB Development Corp. was a subcontractor (NYSCEF Doc. 68 at 24-
25). Plaintiff moved materials back and forth from sidewalk bridge to the second floor using a
makeshift wooden ladder (NYSCEF Doc. 65 at 47-48). Plaintiff was climbing the ladder when the
ladder, which he testified was unsecured, moved and Plaintiff fell (Id. at 57). Plaintiffs supervisor,
Nicholas Fiorello, testified the ladder was the only way to access the second floor and that it was
provided by Rinaldi (NYSCEF Doc. 71 at 32). Mr. Fiorello could not recall whether the ladder
was properly secured on the date of Plaintiffs accident (Id. at 28) and he testified that because the
ladder was provided by Rinaldi, MDB did not inspect it (Id. at 50). An incident report authored by
Mr. Fiorello stated that Plaintiff slipped on the ladder, however Mr. Fiorello could not remember
the source of this information and he personally did not observe Plaintiff fall (Id. at 71-72). In this
motion, Plaintiff moves for partial summary judgment with respect to the issue of liability on his
Labor Law§§ 240(1) and 241(6) claims. Rinaldi and 106 West 56 th Street oppose.
II. Discussion
"Summary judgment is a drastic remedy, to be granted only where the moving party has
tendered sufficient evidence to demonstrate the absence of any material issues of fact." (Vega v
Restani Const. Corp., 18 NY3d 499,503 [2012]). Once this showing is made, the burden shifts to
the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to
establish the existence of material issues of fact which require a trial (See e.g., Zuckerman v City
of New York, 49 NY2d 557, 562 [1980]). The Court of Appeals has instructed Courts to interpret
150671/2021 CALEGARI, SILVERIO ROCHA vs. RINALDI GROUP, LLC Page 2 of 5 Motion No. 002
[* 2] 2 of 5 [FILED: NEW YORK COUNTY CLERK 05/05/2025 04:54 P~ INDEX NO. 150671/2021 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 05/05/2025
Labor Law §240(1) liberally to accomplish its purpose of ensuring workers are properly protected
against elevation related hazards (Zimmer v Chemung County Performing Arts, Inc., 65 NY2d 513
[1985]).
Plaintiffs motion for summary judgment on the issue ofliability with respect to his Labor
Law § 240(1) claim is granted. There is no dispute that Defendants are proper Labor Law
defendants. Nor is there any dispute that Plaintiff was engaged in construction work coming within
the ambit of Labor Law § 240(1 ). There is uncontroverted testimony from Plaintiff that he fell
after the makeshift ladder he was using moved while ascending from one floor to the next. When
a makeshift unsecured ladder moves or shifts, there is a prima facie violation of Labor Law §
240(1) (see Sanchez v MC 19 East Houston LLC, 216 AD3d 443,443 [1st Dept 2023]). Plaintiff
was not required to show the ladder was defective to establish his prima facie entitlement to
summary judgment under Labor Law § 240(1) (see Rodas-Garcia v NYC United LLC, 225 AD3d
556, 556 [1st Dept 2024]; Lin v JOO Wall Street Property LLC, 193 AD3d 650, 651 [1st Dept
2021 ]). Moreover, no party disputes that the makeshift ladder was only secured by rope on one
side, but the other side of the ladder remained unsecured, allowing it to move and cause Plaintiffs
fall. Indeed, when asked, Mr. Fiorello, Plaintiffs supervisor, could not recall whether the ladder
was properly secured. That the ladder did not move on prior occasions does not negate Plaintiffs
uncontroverted testimony that at the time of his accident, he fell because the unsecured ladder
moved.
Where there is a prima facie violation, it is impossible for a plaintiff to be considered the
sole proximate cause of his accident (Suazo v 501 Madison-Sutton LLC, 235 AD3d 513 [1st Dept
2025]). Nor do any issues of Plaintiffs comparative negligence preclude summary judgment on
the issue of liability with respect to his Labor Law § 240(1) claim (Rodriguez v City of New York,
150671/2021 CALEGARI, SILVERIO ROCHA vs. RINALDI GROUP, LLC Page 3 of 5 Motion No. 002
[* 3] 3 of 5 [FILED: NEW YORK COUNTY CLERK 05/05/2025 04:54 PM] INDEX NO. 150671/2021 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 05/05/2025
31 NY3d 312 [2018]). Moreover, the Defendants' reliance on their expert affidavit is insufficient
to raise an issue of fact where the Defendants' expert did not examine the ladder or location of
Plaintiffs accident, and instead relies on undated photographs of the ladder and merely resorts to
attacking Plaintiffs expert affidavit as speculative (Rivera v 7I 2 Fifth Ave. Owner LP, 229 AD3d
401,403 [1st Dept 2024] citing Ciborowski v 228 Thompson Realty, LLC, 189 AD3d 428 [1st Dept
2020]). Further, to the extent Defendants' expert attacks Plaintiffs expert's conclusions, that is
insufficient to deny summary judgment as Plaintiff is not required to produce expert testimony to
show a prima facie entitlement to summary judgment under Labor Law § 240(1) (Jara-Salazar v
250 Park, LLC, 231 AD3d 674, 674 [1st Dept 2024]). Likewise, the accident report which
Defendants rely on, which is not annexed as an exhibit, contains hearsay, and was allegedly
translated from Spanish to English but there was never any translator's affidavit produced, making
it insufficient to defeat summary judgment (Nava-Juarez v Mosholu Fieldston Realty, LLC, 167
AD3d 511 [1st Dept 2018]).
Therefore, Plaintiff is entitled to summary judgment on his Labor Law § 240( 1) claim.
Plaintiffs motion for summary judgment on their Labor Law § 241 (6) claim is denied as academic
(see Perez v 1334 York, LLC, 234 AD3d 455,457 [1st Dept 2025]).
Accordingly, it is hereby,
ORDERED that Plaintiffs motion for summary judgment is granted in part and denied in
part; and it is further
ORDERED that Plaintiffs motion for summary judgment is granted to the extent that he
is granted summary judgment on the issue ofliability with respect to his Labor Law §240(1) claim
against Defendants The Rinaldi Group, LLC, and 106 West 56 th Street Property Investors III, LLC;
and it is further
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ORDERED that Plaintiffs motion for summary judgment with respect to his Labor Law
§241(6) claim is denied as academic; and it is further
ORDERED that within ten days of entry, counsel for Plaintiff shall serve a copy of this
Decision and Order, with notice of entry, on all parties via NYSCEF.
This constitutes the Decision and Order of the Court.
5/5/2025 DATE RY V. ROSADO, 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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