Cruz Fuentes v. 65 Franklin LLC

2025 NY Slip Op 32796(U)

• Court: New York Supreme Court, New York County
• Decided: August 14, 2025
• Docket: Index No. 152496/2020
• Status: Unpublished

Opinion

Cruz Fuentes v 65 Franklin LLC 2025 NY Slip Op 32796(U) August 14, 2025 Supreme Court, New York County Docket Number: Index No. 152496/2020 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. INDEX NO. 152496/2020 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 08/14/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ARLENE P. BLUTH PART 14 Justice ---------------------------------------------------------------------------------X INDEX NO. 152496/2020 FERNANDO CRUZ FUENTES, MOTION DATE 07/11/2025 Plaintiff, MOTION SEQ. NO. 004 -v- 65 FRANKLIN LLC, HAP CONSTRUCTION LLC, NOBLE DECISION + ORDER ON CONSTRUCTION GROUP, LLC, MOTION Defendants. ---------------------------------------------------------------------------------X

65 FRANKLIN LLC Third-Party Index No. 595312/2020 Plaintiff,

-against-

HAP CONSTRUCTION LLC, NORDEST SERVICES LLC

Defendants. --------------------------------------------------------------------------------X

65 FRANKLIN LLC Second Third-Party Index No. 595508/2021 Plaintiff,

BELLEEYE LLC

Defendant. --------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 004) 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129 were read on this motion to/for JUDGMENT – SUMMARY .

Defendants’ motion for summary judgment is decided as described below.

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Background

In this Labor Law case, plaintiff alleges that he was injured on February 11, 2020 while

working at a job site in Manhattan. Plaintiff contends that he was loading wooden beams that

were being passed to him while he was standing on the bed of a truck which was parked on the

street outside of the construction site. Plaintiff was standing on the truck bed with co-worker Jose

Cabrerra. Two of their co-workers would hand plaintiff and Cabrerra wooden beams from street

level. Plaintiff and Cabrerra would then stack the beams on top of each other. Plaintiff was

employed by demolition subcontractor Nordest (a third-party defendant) which was the only

contractor working at the premises on the day of the accident.

Plaintiff contends that his accident happened when he was adding a wooden beam to the

top of a stack of other wooden beams; the stack was about four feet high (NYSCEF Doc. No.

111 at 76 [plaintiff’s deposition transcript]). He testified that as he was lifting a beam to set it on

the top of the stack, the beam at the top of the stack slipped out of place and went sideways, that

both beams then fell on him, and that he was knocked onto the street (id. at 80-82). The distance

from the truck bed to the street was approximately four feet (id. at 62). Plaintiff testified that the

accident occurred because the beams were slippery (id. at 80). Plaintiff alleges the accident left

him with back, neck, and shoulder injuries which required medical treatment including physical

therapy, injections, and back surgery.

Defendants contest this version of events and submit the affidavit of plaintiff’s co-

workers, Edison Vasquez and Jose Cabrerra.

Mr. Cabrerra claims that he was with plaintiff on the back of the truck and saw plaintiff

“jump from the truck while he mishandled a board. He never fell from the truck…The cause of

Fuentes’ accident was that he accidently dropped a board that was passed up to him, which made

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him lose his balance and then he jumped from the truck” (NYSCEF Doc. No. 118, aff of Mr.

Cabrerra at ¶ 10-11).

Plaintiff brings causes of action based upon Labor Law §§ 241(6), 240(1), 200 and for

common law negligence. Here, defendants 65 Franklin LLC and HAP Construction LLC

(“defendants”) move to dismiss plaintiff’s claims under Labor Law §§ 240(1) and 200 as well as

for common law negligence and for lost wages. Defendants’ motion did not seek dismissal of

plaintiff’s claim pursuant to Labor Law § 241(6).

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 bona fide 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

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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]).

As an initial matter, plaintiff does not oppose the part of defendants’ motion seeking to

dismiss plaintiff’s common law negligence and Labor Law § 200 causes of action. The Court

therefore grants that part of defendants’ motion and severs and dismisses these claims.

The remaining claim subject to this motion: 240(1)

“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).

“Labor Law § 240 (1) applies to both falling worker and falling object cases. With

respect to falling objects, Labor Law § 240 (1) applies where the falling of an object is related to

a significant risk inherent in … the relative elevation … at which materials or loads must be

positioned or secured. Thus, for section 240 (1) to apply, a plaintiff must show more than simply

that an object fell causing injury to a worker. A plaintiff must show that the object fell, while

being hoisted or secured, because of the absence or inadequacy of a safety device of the kind

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enumerated in the statute” (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267-268 [2001]

[internal quotations, emphasis, and citations omitted]).

Defendants contend that the part of plaintiff’s claim brought under Labor Law § 240(1)

should be dismissed, as this is not the type of gravity-related accident that is contemplated by

Section 240(1). Defendants cite to Pitang v. Beacon Broadway Co., LLC (231 AD3d 414, 220

NYS3d 242 [1st Dept 2024]) which found that a Labor Law §240(1) cause of action was

properly dismissed where a worker fell off a flatbed truck. That court ruled that “Plaintiff

worker's Labor Law § 240(1) claim was properly dismissed where he was injured in a four-foot

fall from the flatbed area of a parked truck to the sidewalk below. Plaintiff was not exposed to

the type of elevation-related risk that is essential to a cause of action under Labor Law§ 240(1)…

This case is distinguishable from other cases where the worker was exposed to a significant

elevation differential of 10 or more feet while working from on top of stacked materials on a

flatbed truck, in which circumstances safety devices of the kind enumerated in Labor Law

§240(1) were deemed warranted” (id. at 415).

Plaintiff contends that Pitang does not control here, as this case is about a falling object,

and not a falling person. Plaintiff claims that the facts at hand fall into a category of cases

covered by 240(1) where a plaintiff is injured when an object falls while in the process of being

hoisted or secured, and proper equipment was not provided for the undertaking. Plaintiff cites to

MacGregor v MRMD NY Corp., (194 AD3d 550 [1st Dept 2021)] and Flores v Metro. Transp.

Auth., (164 AD3d 418 [1st Dept 2018]). In MacGregor, the plaintiff’s grant of summary

judgment on 240(1) was upheld by the First Department where the evidence showed that

“defendant's contractor failed to use tag lines or other safety devices to secure steel beams that

were being hoisted during a storm, allowing the beams to spread when they were suddenly

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dropped, knocking plaintiff off the cab of the truck where he was rigging the beams and causing

his injuries…" (194 AD3d at 551). In Flores the First Department held that the plaintiff

demonstrated entitlement to summary judgment on his Labor Law § 240(1) claim where the

plaintiff showed that his accident was proximately caused when he “fell off a flatbed truck after a

load of steel beams, without tag lines, was hoisted above him by a crane, and began to swing

towards him…" (164 AD3d at 419). That court found that the risk of the hoisted load of beams

with no tag lines triggered 240(1).

Here, the Court finds that even assuming plaintiff’s version of events, he has not raised

an issue of fact sufficient to maintain his Labor Law § 240(1) cause of action under the Pitang

case cited above. Plaintiff has not shown that an object fell while being hoisted or secured

because of the absence or inadequacy of a safety device. The injuries plaintiff alleges were not

the result of the kind of gravity-related hazard according to the Pitang case cited above and the

cases he relies upon are easily distinguishable.

In both MacGregor and Flores, there was a bundle of steel beams that was being hoisted,

and the beams were not properly secured. According to plaintiff, that is not what happened here.

Here, the beams were neither hoisted nor secured. According to plaintiff’s testimony, he was

being handed up beams, one at a time, to stack on the truck. According to plaintiff, as he was

adding another beam to a four-foot stack of beams, one beam went sideways and, because of

slippery conditions, both beams fell on him from a height of about four feet, and he was knocked

off an approximately four-foot truck bed onto the street. Plaintiff does not allege that the accident

occurred because the beams should have been secured and were not. When asked why the first

beam fell, plaintiff responded, because “it was so slippery” (NYSCEF Doc. No. 111 at 81). The

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evidence on record does not suggest that the beams should have been secured or that a specific

safety device should have been used to protect plaintiff from elevation or gravity-related injuries.

The Court finds that the First Department’s decision in Pitang controls here; the First

Department held that a worker falling four feet off a flatbed truck was not a gravity-related

incident under the statute, and that recent decision is binding on this Court. Therefore, the Court

grants the part of defendants’ motion seeking to dismiss plaintiff’s cause of action brought under

Labor Law § 240(1).

Lost Wages

Defendants ask the Court to dismiss plaintiff’s “claim” for lost wages, as they contend

that plaintiff effectively duped his employer by providing fraudulent identification documents to

get the job and is therefore barred from recovering lost wages.

The Court observes that “lost wages” is not a separate cause of action – but rather would

go to plaintiff’s damages if liability is determined in favor of plaintiff on one of his causes of

action. Therefore, the Court denies the part of defendants’ motion which seeks to dismiss

plaintiff’s claim for lost wages at this time. Nothing prevents defendants from making an

application at trial for this relief.

Summary

Plaintiff did not oppose the part of defendants’ motion which seeks to dismiss plaintiff’s

causes of action pursuant to Labor Law § 200 or for common law negligence, and so the Court

dismisses those causes of action. The Court also dismisses plaintiff’s cause of action under Labor

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Law § 240(1) based on applicable and binding precedent that directly applies to the instant

circumstances.

The Court denies the part of defendants’ motion which seeks to dismiss plaintiff’s

“claim” for lost wages, as lost wages is not a cause of action in and of itself but would rather go

to plaintiff’s damages if plaintiff ultimately prevails at trial.

Accordingly, it is hereby

ORDERED that the part of defendants’ motion which seeks to dismiss plaintiff’s causes

of action pursuant to Labor Law § 200 and for common law negligence is granted as unopposed;

it is further

ORDERED that the part of defendants’ motion which seeks to dismiss plaintiff’s cause of

action pursuant to Labor Law § 240(1) is granted; and it is further

ORDERED that the part of defendants’ motion which seeks to dismiss plaintiff’s claim

for lost wages is denied; and it is further

ORDERED that all other relief is denied.

08/14/2025 $SIG$ 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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