Gabriel v. Top 8 Constr. Corp.

Opinion

Gabriel v Top 8 Constr. Corp.

2026 NY Slip Op 04930

August 12, 2026

Appellate Division, Second 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.

Michael Adel Azmy Gabriel, appellant,

v

Top 8 Construction Corp., et al., defendants third-party plaintiffs-respondents, et al., defendant; Matia Electrical Corp., third-party defendant-respondent, et al., third-party defendant.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 12, 2026

2025-02557, (Index No. 520336/20)

Lara J. Genovesi, J.P.

William G. Ford

Carl J. Landicino

Susan Quirk, JJ.

Law Office of Stefano A. Filippazzo, P.C., Brooklyn, NY (Louis A. Badolato of counsel), for appellant.

Castellitto Benvenuto & Kim LLP, Tarrytown, NY (Gerard Benvenuto of counsel), for defendants third-party plaintiffs-respondents.

O'Toole Scrivo, LLC, New York, NY (David M. Chaise and Larry C. Green of counsel), for third-party defendant-respondent.

[*1]

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Ingrid Joseph, J.), dated January 16, 2025. The order, insofar as appealed from, upon reargument, adhered to a determination in an order of the same court dated October 1, 2024, denying the plaintiff's motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendants third-party plaintiffs.

ORDERED that the order dated January 16, 2025, is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.

On October 15, 2020, the plaintiff allegedly was injured when he fell from a six-foot tall A-frame ladder while performing electrical work as an employee of the third-party defendant Matia Electrical Corp. (hereinafter Matia). The plaintiff was working at a construction site managed by the defendant third-party plaintiff Top 8 Construction Corp., the general contractor (hereinafter Top 8), on premises owned by the defendants third-party plaintiffs Two Fulton Square LLC, Fulton SCG Development, LLC, Two Fulton Square 2, LLC, Fulton SCG Development Phase II, LLC, and Tangram House West Condominium (hereinafter collectively the Fulton defendants and, together with Top 8, the defendants).

The plaintiff commenced this action against the defendants, and another defendant, to recover damages for personal injuries. The defendants commenced a third-party action against Matia, and another, inter alia, for indemnification and contribution. Before the completion of discovery, the plaintiff moved for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendants. Matia and the [*2]defendants separately opposed the motion. In an order dated October 1, 2024, the Supreme Court denied the motion. The plaintiff subsequently moved for leave to reargue the motion. In an order dated January 16, 2025, the Supreme Court, inter alia, upon reargument, adhered to its prior determination in the order dated October 1, 2024. The plaintiff appeals.

"'Labor Law § 240(1) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites'" (Sisalima v Thorne Constr., Inc., 237 AD3d 1126, 1127, quoting Guaman v 178 Ct. St., LLC, 200 AD3d 655, 657). "To prevail on a Labor Law § 240(1) cause of action, 'a plaintiff must prove that the defendant violated the statute and that such violation was a proximate cause of his or her injuries'" (Hossain v Condominium Bd. of Grand Professional Bldg., 221 AD3d 981, 983, quoting Exley v Cassell Vacation Homes, Inc., 209 AD3d 839, 840). "Although 'comparative negligence is not a defense to absolute liability under the statute,' where the plaintiff is the sole proximate cause of his or her own injuries, i.e., where a statutory violation is not a proximate cause of the injuries, there can be no liability under Labor Law § 240(1)" (Rivas v Purvis Holdings, LLC, 222 AD3d 676, 677, quoting Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 289). "A plaintiff's intentional or negligent conduct may be the sole proximate cause of the plaintiff's injuries where adequate safety devices are provided as required by the statute, but 'the worker either does not use or misuses them'" (id., quoting Robinson v East Med. Ctr., LP, 6 NY3d 550, 554).

Here, the plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendants by submitting evidence, including a transcript of his deposition testimony, that the ladder suddenly shook, causing him to fall (see Rivas v Purvis Holdings, LLC, 222 AD3d at 677). In opposition, however, the defendants raised a triable issue of fact as to whether the plaintiff's conduct was the sole proximate cause of his injuries (see id.; Heras v Ming Seng & Assoc., LLC, 203 AD3d 1146, 1147). Where, as here, "'credible evidence reveals differing versions of the accident, one under which defendants would be liable and another under which they would not, questions of fact exist making summary judgment inappropriate'" (Heras v Ming Seng & Assoc., LLC, 203 AD3d at 1147, quoting Ellerbe v Port Auth. of N.Y. & N.J., 91 AD3d 441, 442).

Accordingly, upon reargument, the Supreme Court properly adhered to its prior determination denying the plaintiff's motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendants.

GENOVESI, J.P., FORD, LANDICINO and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court