Ordonez v. USM Asset Trust Series -7
Opinion
Ordonez v USM Asset Trust Series -7
2026 NY Slip Op 04912
August 6, 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.
Bolivar Carchi Ordonez, Plaintiff-Respondent-Appellant,
v
USM Asset Trust Series -7, et al., Defendants-Respondents-Appellants, EmpireHD, Inc., Defendant-Appellant-Respondent, Dixon Projects, LLC, Defendant-Respondent.
EmpireHD, Inc., Third-Party Plaintiff-Appellant-Respondent,
v
Victorio's Contracting, Inc., Third-Party Defendant-Respondent-Appellant.
Dixon Projects, LLC, Second Third-Party Plaintiff-Respondent,
v
Victorio's Contracting, Inc., Second Third-Party Defendant-Respondent-Appellant.
Decided and Entered: August 06, 2026
Index No. 152146/19 595472/19 595267/22|Appeal No. 6500|Case No. 2024-04296|
Before: Kennedy, J.P., Gesmer, González, Rosado, Chan, JJ.
Gallo Vitucci Klar LLP, New York (Nate Drexler of counsel), for appellant-respondent.
Gorayeb & Associates, P.C., New York (John M. Shaw of counsel), for Bolivar Carchi Ordonez, respondent-appellant.
Connell Foley LLP, New York (Brian P. Morrissey of counsel), for USM Asset Trust Series — 7 and Penrith URF, LLC, respondents-appellants.
O'Connor Redd Orlando LLP, Port Chester (Jerri A. DeCamp of counsel), for Victorio's Contracting, Inc., respondent-appellant.
Order, Supreme Court, New York County (Lori S. Sattler, J.), entered July 8, 2024, which, to the extent appealed from as limited by the briefs, granted the separate motions of defendants USM Asset Trust Series-7 and Penrith URF, LLC (collectively, the owners), defendant/third-party plaintiff EmpireHD, Inc., and third-party defendant/second third-party defendant Victorio's Contracting, Inc. for summary judgment dismissing plaintiff's Labor Law §§ 240(1) and 241(6) claims; denied so much of the owners' and EmpireHD's motions for summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims; denied so much of the owners' motion for summary judgment on their cross-claims for contractual indemnification against EmpireHD and Victorio's; denied so much of EmpireHD's motion for summary judgment on their third-party claim for contractual indemnification as against Victorio's; and denied so much of Victorio's motion as sought summary judgment dismissing the remaining cross-claims and third-party claims for common-law indemnification and contribution as against it, unanimously modified, on the law, to deny the motions of the owners, EmpireHD, and Victorio insofar as they sought summary judgment dismissing plaintiff's Labor Law § 241(6) claim, and to grant Victorio's motion insofar as it sought summary judgment dismissing all cross-claims and third-party claims for common-law indemnification and contribution as against it, and otherwise affirmed, without costs.
Plaintiff was working as a carpentry laborer on a renovation project in Manhattan when he slipped or tripped on a crack in a stone step as he descended the building's front exterior staircase. Plaintiff used the building's front staircase to bring debris to a curbside refuse container as per his foreman's instructions. At the time of the incident, plaintiff was carrying two bags of demolition debris that hung over his right shoulder and weighed approximately 30 pounds, while in his left hand he carried a bucket of debris that weighed between 10 to 15 pounds. Plaintiff testified that although there was another route out of the building through the basement's garage door, that area was full of debris.
[*2]In light of the fact that plaintiff failed to oppose defendants' motions seeking dismissal of his Labor Law § 240(1) claim, we decline to search the record and grant plaintiff summary judgment on liability on that claim. Plaintiff was not aggrieved by so much of Supreme Court's order as dismissed the Labor Law § 240 claim, as he did not oppose the branch of each motion seeking dismissal of the claim and thus abandoned it (see RDF Agent, LLC v Electric Red Ventures, LLC, 227 AD3d 424, 426 [1st Dept 2024]; Sancino v Metropolitan Transp. Auth., 184 AD3d 534, 535 [1st Dept 2020]). That EmpireHD addressed the merits of the § 240(1) claim in its briefs on appeal does not change the analysis, as plaintiff failed to preserve any argument regarding that claim (see RDF Agent, LLC, 227 AD3d at 426; Howard v Turner Constr. Co., 134 AD3d 523, 524 [1st Dept 2015]).
As to plaintiff's Labor Law § 241(6) claim, which is predicated on 12 NYCRR 23-1.7(e)(1), the evidence raised triable issues as to whether plaintiff was caused to slip/trip on a defective step of a staircase that was the "only route" he could take to perform his assigned task of throwing away interior demolition material in a curbside dumpster (Rossi v 140 W. JV Mgr. LLC, 171 AD3d 668, 668 [1st Dept 2019]; see also Ragoo v Port Auth. of N.Y. & N.J., 226 AD3d 444, 444 [1st Dept 2024]). Issues of fact also remain as to whether the staircase here is a "defined walkway or pathway used to traverse between discrete areas [(the open street and the inside of the building)] as opposed to an open area" as contemplated by 22 NYCRR 23-1.7(e)(1) (Prevost v One City Block LLC, 155 AD3d 531, 535 [1st Dept 2017]).
Quigley v Port Auth. of N.Y. & N.J. (168 AD3d 65 [1st Dept 2018]), relied upon by defendants, is distinguishable. In Quigley, plaintiff's injuries were caused by an icy condition, causing him to slip and fall on snow-covered pipes located in an open area outside of defendant's construction shanty, which is more appropriately analyzed pursuant to Industrial Code § 23-1.7(d) that addresses "slipping hazards" (see id. at 67). Conversely, here, plaintiff was allegedly required to use the staircase, a defined structure, to traverse between the building and the refuse container. "As the Industrial Code does not provide a formal definition of 'passageway,' the practical function of the area where plaintiff fell is a question to be addressed by the trier of fact" (Prevost, 155 AD3d at 535).
[*3]As to plaintiff's claims under Labor Law § 200 and common-law negligence, defendants failed to establish prima facie that the defect on the stairs was trivial as a matter of law. At his deposition, plaintiff identified photographic exhibits of the defect in the stairs and testified that the foot-wide defect was about one-inch deep. He further testified that he felt as if the defect he stepped into was at a different level than the rest of the steps, causing him to lose his balance as he carried 50 pounds of demolition debris down the stairs. In contrast, the project manager for general contractor EmpireHD described the area of the cracked step as a depression with an 1/8th inch differential. The conflicting testimony on this issue forecloses resolution on summary judgment (see e.g. Solomon v Diego Beekman Mut. Hous. Dev. Fund Corp., 190 AD3d 660, 660 [1st Dept 2021]).
The owners and EmpireHD did not establish entitlement to conditional contractual indemnification under the two indemnification provisions at issue. Factual issues exist as to whether their acts or omissions constituted the sole proximate cause of the accident, which, under both provisions, would preclude a right to indemnification (see Cackett v Gladden Props., LLC, 183 AD3d 419, 422 [1st Dept 2020]).
Finally, dismissal of the third-party claims and cross-claims against Victorio's for common-law indemnification and contribution is warranted because plaintiff was awarded
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