Reinhardt v. RCB1 Nominee, LLC.

2025 NY Slip Op 31004(U)

• Court: New York Supreme Court, New York County
• Decided: March 25, 2025
• Docket: Index No. 160319/2017
• Status: Unpublished

Opinion

Reinhardt v RCB1 Nominee, LLC. 2025 NY Slip Op 31004(U) March 25, 2025 Supreme Court, New York County Docket Number: Index No. 160319/2017 Judge: Richard G. Latin 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. 160319/2017 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 03/25/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. RICHARD G. LATIN PART 46M Justice ---------------------------------------------------------------------------------X INDEX NO. 160319/2017 JASON REINHARDT, MOTION DATE 03/05/2024 Plaintiff, MOTION SEQ. NO. 005 -v- RCB1 NOMINEE, LLC., TISHMAN CONSTRUCTION CORPORATION OF NEW YORK, PINNACLE CONTRACTING, CONCRETE & MASONRY, CORP., DECISION + ORDER ON PINNACLE INDUSTRIES II, LLC,EMPIRE TRANSIT MIX, MOTION INC.,

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

RCB1 NOMINEE, LLC., TISHMAN CONSTRUCTION Third-Party CORPORATION OF NEW YORK Index No.

Plaintiff,

-against-

FRED GELLER ELECTRICAL, INC., EMPIRE TRANSIT MIX, INC.

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

The following e-filed documents, listed by NYSCEF document number (Motion 005) 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177 were read on this motion to/for JUDGMENT - SUMMARY .

In motion sequence number 005, plaintiff JASON REINHARDT moves, pursuant to CPLR

3212, for an order granting summary judgment against defendants RCB1 NOMINEE LLC

(hereinafter “RCB1”), TISHMAN CONSTRUCTION CORPORATION OF NEW YORK

(hereinafter “Tishman”), PINNACLE INDUSTRIES II, LLC (hereinafter “Pinnacle”) and

EMPIRE TRANSIT MIX, INC. (hereinafter “Empire”) under New York State Labor Law §§200,

241(6) and 12 NYCRR § 12-1.2 and 12 NYCRR 23-1.7(d) of the Industrial Code.

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BACKGROUND

Plaintiff, an employee of Gellar, was injured when he slipped and fell on ice at a

construction site on 400 West 61st Street, New York, NY (see NYSCEF DOC. NO. 153 at pg. 58).

RCB1 was the owner of the subject premises (see NYSCEF DOC. NO. 167 at ¶ 4). Tishman was

retained to act as the construction manager of the project, known as Riverside 1 project (id.; see

also NYSCEF DOC. NO. 154 at pg. 15). Defendant Pinnacle was Tishman’s subcontractor and

Empire was retained by Pinnacle to provide concrete for the project (see NYSCEF DOC. NO. 167

at ¶ 14).

Plaintiff testified that on the day of his accident, he observed cement trucks pouring

concrete (see NYSCEF DOC. NO. 153 at pg. 31). At one point, plaintiff observed that the cement

chutes of the trucks were being washed (id. at pg. 40). Most of the runoff water ran into a wash

bin (id. at pg. 49). Plaintiff alleges that during the cleaning process, water spilled onto the floor,

which froze and created the icy condition that caused plaintiff’s accident (see NYSCEF DOC. NO.

152 at ¶ 95-96).

Plaintiff testified that as he was approaching a Conex box, he slipped and fell on an eight-

foot by ten-foot patch of ice (see NYSCEF DOC. NO. 153 at pg. 58). He did not observe any ice

melt on the ground at the time of the accident (id. at 67).

Robert Kunzelman, a superintendent for Tishman testified that “it was all our

subcontractors were responsible for safety” conditions on the property. (See NYSCEF DOC.

NO. 154 at pg. 35). He added:

“A: In addition to that, we have laborers too, that would, as they were cleaning up garbage and traveling the site, they would tackle areas if they noticed there was an issue. Q: If they were working in an area and saw an icy condition, would you expect your Tishman employees to address it? A: Yes.

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Q: Same thing with respect to the subs, as superintendent, you would expect the subcontractor to address it if he saw it as well? A: Absolutely. I mean it was a huge site. It was really – everybody needed to participate.” (id. at pg. 35-36). Kunzelman further testified that his laborers would typically treat areas with ice melt (id.

at 77-78). Kunzelman also stated that his labor foreman told him that ice reformed due to cold

temperatures on the day of plaintiff’s accident. (id. at 78-79). He added it “was explained to me

by my labor foreman that the ice kept coming back” (id. at 79).

Kunzelman testified that Pinnacle was the concrete subcontractor for the project (id. at pg.

40). Pinnacle also had access to materials to address icy conditions like shovels and salt (id. at pg.

39-40). Additionally, Pinnacle was also in attendance at safety meetings (id. at pg. 40). He also

testified that Empire was not a subcontractor of Tishman, but rather “provided the concrete for

Pinnacle Industries” (id. at pg. 44).

Kunzelman was also questioned about an incident report, which was annexed by plaintiff

in support of his motion. (See NYSCEF DOC. NO. 158). The incident report states:

[Plaintiff was] walking on West 61st street within the site. Worker slipped on ice and fell down on the pavement [and] adjacent curb. Ice formed from Empire Transit concrete trucks washing out into container box [and] water leaking onto surface of roadway. Areas were previously treated with ice melt but ice reformed due to cold temperatures (15 F) and windy conditions (>20 MPH) (see NYSCEF DOC. 150 at pg. 1-2).1

Michael Mariscano testified on behalf of Pinnacle that Tishman was the management

company. (See NYSCEF DOC. NO. 157 at pg. 16). He testified that Pinnacle worked under

Tishman and they “were putting the building up for that company” (id. at pg. 16). He testified that

1 The incident report also identifies George Gerolimatos as a witness to the accident. A witness statement signed by Gerolimatos on the date of plaintiff’s accident is contained in the incident report, and states “Jason was walking towards the trailer then he slipped on the ice and his left foot slid into the curb and then his right knee hit the ground.” (id. at pg. 5-6).

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Tishman supervised the job (id.). Mariscano further acknowledged that laborers would only have

the responsibility to put ice melt in one of Pinnacle’s areas, which included “the building that was

being constructed” (id. at pg. 53).

Mariscano testified that Empire was one of their vendors and was “the concrete company

that we use to pour the concrete” (id. at pg. 31-32). When asked if “Pinnacle employees supervise

the washout process,” Mariscano replied “no” (id. at pg. 68).

Scott Palisi appearing on behalf of third-party defendant Fred Geller Electrical, Inc.

(hereinafter “Geller”) testified that he notified Tishman of the icy condition that caused plaintiff’s

accident (see NYSCEF DOC. NO. 155 at pg. 45). Palisi was asked several times how long before

the accident did he report the condition to Tishman, to which he replied that he did not recall (id.

at pg. 32-33, 38). Palisi was again asked “how long after [he] notified Tishman did the accident

occur” to which he answered “I believe I said, approximately, 40 minutes. I believe I said that, but

yeah, I would think between 30 and 40 minutes” (id. at pg. 81). Palisi also testified that he told

someone from the Empire “you’re creating an ice situation” but did not recall who he spoke to

from Empire (id. at pg. 47).

PROCEDURAL HISTORY

Plaintiff commenced this action by filing his summons and verified complaint on

November 17, 2017 (see NYSCEF DOC. NO. 1).2

Plaintiff subsequently filed an amended summons and complaint adding RCB1 and

Tishman as defendants on February 1, 2018 (see NYSCEF DOCS. NO. 5 and 6).

On January 30, 2018, all parties entered a stipulation to amend the caption naming RCB1

and Tishman as the only defendants in the instant action (see NYSCEF DOC. NO. 9).

2 Plaintiff named defendant Tishman as “Tishman Construction” in his initial summons and complaint. 160319/2017 REINHARDT, JASON vs. RCB4 NOMINEE LLC. Page 4 of 16 Motion No. 005

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Defendants RCB1 and Tishman joined issue by service of their answer on March 1, 2018 (see

NYSCEF DOC. NO. 10).

Defendants RCB1 and Tishman subsequently filed a third-party summons and complaint

against defendants Geller and Empire on April 23, 2018 (see NYSCEF DOC. NO. 23). Third-

party defendant Geller joined issue by service of its answer on June 14, 2018 (see NYSCEF DOC.

NO. 31).

Third party Empire joined issue by service of its answer on June 19, 2018 (see NYSCEF

DOC. NO. 34).

In an order dated March 6, 2019, an action with a caption of Jason Reinhardt v Pinnacle

Contracting, Concrete & Masonry Corp., Index No. 152228/2018, was consolidated under the

instant action (see NYSCEF DOC. NO. 50). Accordingly, Pinnacle was added as defendant to the

instant action (id.).

In an order dated March 23, 2022, the caption was amended to add Empire as a direct

defendant to the main action (see NYSCEF DOC. NO. 111). Subsequently, plaintiff filed a

supplemental summons and complaint on September 23, 2021, naming Empire as a direct

defendant to the instant action (see NYSCEF DOC. NO. 115 and 116).

Defendant Empire joined issue by service its answer to plaintiff’s amended complaint on

September 21, 2022 (see NYSCEF DOC. NO. 122).

Plaintiff filed his Note of Issue on September 19, 2023 (see NYSCEF DOC. NO. 150).

DISCUSSION

It is well settled that “[t]he proponent of a summary judgment motion must make a prima

facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to

eliminate any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986], citing

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Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once the movant has made a

prima facie showing, the burden shifts to the opposing party to “present evidentiary facts in

admissible form sufficient to raise a genuine, triable issue of fact” (Casper v Cushman &

Wakefield, 74 AD3d 669, 669 [1st Dept 2010], lv dismissed 16 NY3d 766 [2011] [internal

quotation marks and citation omitted]).

The court’s function on summary judgment is “issue-finding rather than issue-

determination” (Mayo v Santis, 74 AD3d 470, 471 [1st Dept 2010]). In deciding the motion, “the

court should draw all reasonable inferences in favor of the nonmoving party” and deny summary

judgment if there is any doubt as to the existence of a material issue of fact (Assaf v Ropog Cab

Corp., 153 AD2d 520, 521 [1st Dept 1989] [citations omitted]). “‘[M]ere conclusions, expressions

of hope or unsubstantiated allegations or assertions are insufficient’” to defeat a motion for

summary judgment (Siegel v City of New York, 86 AD3d 452, 455 [1st Dept 2011], quoting

Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Furthermore, since summary judgment is a drastic remedy, it should never be granted when

there is any doubt as to the existence of a triable issue of fact (Rotuba Extruders v Ceppos, 46

NY2d 223, 231 [1978]). When the existence is even arguable or debatable, summary judgment

should be denied (Stone v Goodson, 8 NY2d 8, 12 [1960]).

As a preliminary matter, Empire argues that plaintiff’s motion must be denied as

procedurally defective since plaintiff failed to annex a statement of material facts to its moving

papers (see NYSCEF DOC. NO. 161 at pg. 3-4). While defendant is correct that a failure to comply

with the Uniform Rules requiring certification of the word-count can be a basis to deny an

application, this court will, in its discretion, address the merits of the application (see Cozzolino v

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N.Y.S. Div. of Hous. & Cmty. Renewal, NYLJ, Aug. 3, 2021 at 17, col 1 [Sup Ct, NY County

2021]).

PLAINTIFF’S MOTION SEEKING SUMMARY JUDGMENT PURSUANT TO LABOR LAW § 241(6) CLAIMS

Plaintiff first seeks an order granting him summary judgment pursuant to Labor Law 241(6)

based on violations of 12 NYCRR §§ 12-1.2 and 23-1.7(d) of the Industrial Code.

As a preliminary matter, although plaintiff alleged in his bill of particulars that defendants

violated Industrial Code sections 23-1.5, 23-1.7, 23-1.15, 23-1.16, 23-1.17, 23-1.21, 23-1.24, 23-

5.1, 23-5.3, 23-5.4, 23-5.5, 23-5.6, 23-5.7, 23-5.8, 23-5.9, 23-5.10, 23-5.11, 23-5.12, 23-5.13, 23-

5.14, 23-5.15, 23-5.16, 23-5.17, 23-5.18, 23-5.19, 23-5.20, 23-5.21, 23-5.22, 23.6.1, 23-6.2, 23-

6.3, 23-7.1 and 23-7.2 (see NYSCEF DOC. NO. 57 at ¶ 12), he only claims a violation of 12

NYCRR § 23-1.2 and 12 NYCRR § 23-1.7(d) in his motion. Thus, his “failure to address [the

other rules] indicates that [he] has abandoned them as basis for liability” (Perez v Folio House,

Inc., 123 AD3d 519, 520 [1st Dept 20014] citing Gary v Flair Beverage Corp., 60 AD3d 413, 413

[1st Dept 2009]).”

Labor Law § 241(6) “imposes a nondelegable duty of reasonable care upon owners and

contractors ‘to provide reasonable and adequate protection and safety’ to persons employed in, or

lawfully frequenting all areas in which construction, excavation or demolition work is being

performed” (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 348 [1998]).

To establish entitlement to summary judgment under Labor Law § 241(6), a plaintiff “must

show that a specific Industrial Code regulation was violated and that the violation caused the

complained-of injury” (Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139, 146 [1st Dept

2012]). “The Code regulation must constitute a specific, positive command, not one that merely

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reiterated the common-law standard of negligence” (Buckley v Columbia Grammar &

Preparatory, 44 AD3d 263, 271 [1st Dept 2007], lv denied 10 NY3d 710 [2008]).

Under Labor Law § 241(6), “an owner or general contractor ‘is vicariously liable without

regard to [their] fault,’ and ‘even in the absence of control or supervision of the worksite,’ where

a plaintiff establishes a violation of a specific and applicable Industrial Code regulation” (Bazdaric

v Almah Partners LLC, 41 NY3d 310, 318 [2024]) quoting Rizzuto 91 NY2d at 348-350).

Here, p plaintiff moves for summary judgment under Labor Law § 241(6) based upon

violations of 12 NYCRR § 12-1.2 and 12 NYCRR § 23-1.7(d) (see NYSCEF DOC. NO. 132).

12 NYCRR § 23-1.7(d)

The First Department has held that Industrial Code 12 NYCRR § 12-1.2 cannot, on its own,

support an action under Labor Law § 241(6), unless incorporated by Part 23 (see Nostrom v. A.W.

Chesteron Co., 59 AD3d 159, 160 [1st Dept 2009]).

12 NYCRR § 23-1.7(d) provides as follows: (d) Slipping hazards. Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing.

This section is sufficiently specific to act as a predicate for Labor Law § 241(6) liability

(Rizzuto 91 NY2d at 348 [1998]); see also Whalen v City of NY, 270 AD2d 340. 342 [2d Dept

2000]).

Plaintiff argues that RCB1 and Tishman, as the respective owner and general contractor of

the construction site, along with Pinnacle and Empire “as statutory agents of the owner and general

contractor violated 12 NYCRR § 23-1.7(d) of the Industrial Code by permitting a slippery and

unsafe condition, within the construction site, causing [p]laintiff to fall and suffer serious and

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permanent injuries” (see NYSCEF DOC. NO. 152 at ¶ 68). Plaintiff notes that the condition was

ice, which caused plaintiff’s accident while working on the construction site (id. at pg. 81).

In opposition, defendant Empire argues that it was not a statutory agent of Tishman, the

general contractor (see NYSCEF DOC. NO. 161 at pg. 3). Empire further argues that it was neither

owner of the subject premises, nor the general contractor and that it “did not have the authority to

keep [p]laintiff out of the area where he was traversing, did not supervise him or his work and had

no responsibilities of the maintenance at the construction site” (id. at pg. 2). Empire further argues

that “the evidence in this case is that the general contractor, Tishman had the responsibility to

address icy conditions at the project” (id.).

Also, in opposition to plaintiff’s motion, defendant Pinnacle argues that it was not

responsible for the safety of the construction site, and that it was neither owner nor contractor of

the project where plaintiff’s accident occurred (see NYSCEF DOC. NO. 164 at ¶ 39). Pinnacle

adds “there has been no evidence presented to establish that Pinnacle acted as an agent of the

owner or general contractor, or that it had authority to direct or control the accident producing

work” (id.). Pinnacle also argues that the entirety of plaintiff’s motion must be denied for failure

to include “a separate statement of undisputed material facts” (id. at ¶ 30).

In the same opposition, RCB1 and Tishman argue that “it is undisputed that the icy

condition was created by Empire when its drivers used the washout bin to clean out [its] trucks,

causing water to get onto the ground and subsequently freeze” (id. at ¶ 50).

On reply, plaintiff argues that both Pinnacle and Empire “had the authority to supervise

and control the activities surrounding the washout box that resulted in the subject icy and

dangerous condition” that caused plaintiff’s accident (see NYSCEF DOC. NO. 175 at P 8).

Plaintiff adds that Pinnacle hired a vendor to supply washout bins for Empire’s trucks, and that

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Pinnacle and Tishman “jointly determined where the washout boxed would be located” and

Pinnacle had a flagman monitor for icy conditions (id. at ¶ 12). Additionally, Empire was

responsible for cleaning their trucks after dumping concrete (id.)

RCB1 AND TISHMAN

The threshold question for Labor Law § 241(6) is whether a defendant was an owner, a

general contractor, or an agent of either (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494,

501-502 [1993]). The Court of Appeals has held that an owner or general contractor “is vicariously

liable without regard to [their] fault,” and “even in the absence of control or supervision of the

worksite” in instances where a plaintiff can establish a violation of a specific and applicable

Industrial Code Violation (Rizzuto, 91 NY2d at 348-350).

Here, both RCB1 and Tishman as the owner and general contractor, respectively, are both

vicariously liable for a violation of Labor Law § 241(6) predicated upon 12 NYCRR § 1.7(d).

Plaintiff established the existence of the ice, a slippery condition, as the cause of his accident.

RCB1 and Tishman’s argument that Empire caused or created the condition is of no moment for

the purposes of assessing liability under § 241(6) of the Labor Law. As owner and general

contractor, they are vicariously liable regardless of fault (Bazdaric, 41 NY3d at 318). Their duty

to maintain a safe worksite is non-delegable and thus, RCB1 and Tishman are both vicariously

liable and the branch of plaintiff’s motion seeking summary judgment pursuant to New York Labor

Law § 241(6) is granted as to both RCB1 and Tishman. We now turn to plaintiff’s motion with

respect to the other defendants.

PINNACLE AND EMPIRE

To hold a subcontractor or statutory agent of the owner or general contractor absolutely

liable for violations of Labor Law § 241(6), there must be a showing that the subcontractor had

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the authority to supervise and control the work giving rise to the obligations imposed by these

statutes. “The determinative factor on the issue of control is not whether [defendant] furnishes the

equipment but whether he has control of the work being done and the authority to insist that proper

safety practices be followed” (Everitt v Nozkowski, 285 AD2d 442, 443-444 [2d Dept 2001];

To be treated as a statutory agent, the subcontractor must have been “delegated the

supervision and control either over the specific work area involved or the work which [gave] rise

to the injury” (Headen v Progressive Painting Corp. 160 AD2d 319, 320 [1990]). Additionally,

evidence that a subcontractor delegated the requisite supervision and control to another

subcontractor has been cited as forming part of the proof that the first subcontractor formerly

possessed that authority and may justify imposing Labor Law liability on the first subcontractor

as a statutory agent of the general contractor (Weber, 70 AD3d at 488; Everitt, 285 AD2d at 444).

Here, plaintiff has failed to eliminate the existence of triable issues of fact as to whether

Pinnacle had the authority to supervise and control the specific area where plaintiff’s accident

occurred or the work that caused plaintiff’s accident, namely the water in and around the washout

box area.

Initially, the record establishes that Pinnacle held safety meetings at this particular project

(see NYSCEF DOC. NO. 157 at pg. 50), and that it kept ice melt on site (id. at pg. 74). Testifying

on behalf of Pinnacle, Marsicano stated he did not know if it was part of Pinnacle’s job

responsibility to keep the area around the washout box free from ice (id. at pg. 74-75). However,

he specifically testified that the “parameter on the outside of the building is not Pinnacle’s

responsibility. Any walkways, I don’t know who that falls under, but it’s not my or my company’s

responsibility” (id.).

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The deposition of Tishman does not elucidate any further regarding duties delegated to

Pinnacle. When asked if there was “ever a conversation with representatives from

[Pinnacle]…regarding how to a wash out in freezing weather” Kunzelman stated “I don’t recall

any conversation back that far” (see NYSCEF DOC. NO. 154 at pg. 47-48). Moreover, Kunzelman

testified that before any wash basin was moved by Pinnacle, Tishman would have to be consulted

in some manner (id. at 91).

Here, plaintiff has failed to show, prima facie, that that Pinnacle had been delegated

supervision or control over the specific work that caused plaintiff’s accident. The record is devoid

of any contractual obligations and the fact that Tishman’s witness could not recall if any

conversation occurred with Pinnacle regarding washing in freezing weather (id. at 47-48) creates

a triable issue of fact. The determination as to whether Pinnacle had any control as to the area or

the work that caused plaintiff’s injury is a question suitable for determination by a jury. Given that

Empire was hired by Pinnacle and given that a question of fact exists as to what responsibilities

and duties Pinnace was delegated, it follows that triable issue of fact are also present with respect

to Empire and its control as to the area or work that caused plaintiff’s injury.

Accordingly, the branch of plaintiff’s motion seeking summary judgment pursuant to New

York Labor Law § 241(6) against Pinnacle and Empire is denied.

LABOR LAW § 200 AND COMMON LAW NEGLIGENCE CLAIMS

Plaintiff also seeks an order granting him summary judgment pursuant to Labor Law § 200.

Labor Law § 200 “is a codification of the common-law duty imposed upon an owner or

general contractor to provide construction site workers with a safe place to work” (Comes v New

York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]). Furthermore, it is well settled that the

authority to control the work is a precondition to establishing liability under Labor Law § 200

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where the alleged defect or dangerous condition arises from the contractor’s methods or means of

the work (Rizzuto, 91 NY2d at 352). A property owner or contractor is liable under Labor Law §

200 when he either created the dangerous condition that caused the injury or failed to remedy a

dangerous or defective condition of which he had actual or constructive notice (Eversfield v Brush

Hollow Realty, LLC, 91 AD3d 814, 816 [2d Dept 2012]).

Moreover, there are two distinct categories of Labor Law § 200 Cases: (1) where the

accident is the result of a dangerous condition that is inherent in the premises; and (2) where the

accident is the result of the means and methods used by a contractor to do its work (Ruisech v

Structure Tone, Inc., 208 AD3d 412, 414 [1st Dept 2022]; Cappabianca v Skanska USA Bldg. Inc.,

99 AD3d at 143-144).

Here, plaintiff alleges that he slipped and fell as a result of an icy condition as he was

walking to a Conex box (see NYSCEF DOC. NO. 153 at pg. 22). The condition was not the results

of the means and methods used in connection with the performance of plaintiff’s work but was

instead a dangerous condition on the work site.

“Where a premises condition is at issue, property owners may be held liable for a violation

of Labor Law 200 if the owner either created the dangerous condition that caused the accident or

had actual or constructive notice of the dangerous condition that caused the accident” (Ortega v

Puccia, 57 AD3d 54, 61 [2d Dept 2008]). “To provide constructive notice, a defect must be visible

and apparent and it must exist for a sufficient length of time prior to the accident to permit the

defendants to discover and remedy it” (Medina v La Fiura Dev. Corp., 69 AD3d 686, 686 [2d Dept

2010]). “Liability attaches if the owner or general contractor created the condition or had actual

or constructive notice of it” (Cappabianca v Skanska USA Bldg. Inc., 99 AD3d at 144).

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Here, plaintiff has failed to meet his prima facie burden in establishing that Tishman had

actual or constructive notice of the icy condition that caused plaintiff’s accident (see NYSCEF

DOC. NO. 155 at pg. 45). In support of this argument, plaintiff relies on the testimony of Palisi

who testified he notified Tishman of the icy condition that caused plaintiff’s accident. Palisi does

not recall who he spoke to at Tishman (id. NYSCEF DOC. 155 at pg. 45). Moreover, Palisi was

asked several times how long before the accident he reported the condition to Tishman, to which

he replied that he did not recall (id. at pg. 32-33, 38). He did not recall if he notified Tishman

“more than ten minutes” prior to the accident (id. at pg. 38). Palisi was later asked “how long after

[he] notified Tishman did the accident occur” to which he answered “I believe I said,

approximately, 40 minutes. I believe I said that, but yeah, I would think between 30 and 40

minutes” (id. at pg. 81). Palisi also testified that he told someone from the Empire “you’re creating

an ice situation” but did not recall who he spoke to from Empire (id. at pg. 47).

Plaintiff’s inability to establish who Palisi spoke to at Tishman is a prima facie failure to

establish actual notice. Moreover, the icy condition must have been visible and apparent, and it

must have existed for a sufficient length of time prior to the accident to allow Tishman’s employees

time to discover and remedy it (Strowman v Great Atl. & Pac. Tea Co., Inc., 252 AD2d 384, 384

[1998]). Here, plaintiff’s reliance on Palisi’s testimony of “I would think between 30 and 40

minutes” (see NYSCEF DOC. NO. 115 at pg. 47) is an issue of fact for the jury to determine.

Kunzelman testified that Tishman had a three superintendents who were responsible for inspecting

the site for safety hazards (see NYSCEF DOC. NO. 154 at pg. 118-119). Thus, whether the

condition should have been observed and corrected by Tishman or any of the defendants is a triable

issue appropriate for a determination by a jury.

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Lastly, plaintiff also fails to establish that Pinnacle and Empire were responsible for the

creation of the subject icy condition, “which was caused by the cleaning of Empire’s trucks” (see

NYSCEF DOC. NO. 152 at pg. 95). Plaintiff alleges that Empire caused the condition after it

washed it trucks on the construction site (see NYSCEF DOC. NO. 152 at ¶ 57-61). Although

plaintiff himself testified that this was the coldest day at the site, plaintiff has not established that

the icy condition was indeed caused by either Pinnacle or Empire. Even assuming that run-off

from the washing of the cement trucks was occurring, the record is devoid of any information

regarding weather conditions that eliminates any triable issues of fact that this was the cause of the

icy condition that caused plaintiff to slip and fall. A note on the incident report that reads “Weather:

Cold: Windy – 15° F” is insufficient to eliminate all triable issues of fact as to whether the icy

condition was caused as a direct consequence of any action of Empire or Pinnacle (see NYSCEF

DOC. NO. 158).

Even assuming, arguendo, that the creation of the icy condition can be inferred by the

weather and circumstances alleged by plaintiff, plaintiff’s motion must still be denied. Liability

against a subcontractor based upon a claimed violation of Labor Law 200 requires a showing that

authority was conferred on the subcontractor to supervise and control the activity which produced

the injury (Rizzuto, 91 NY2d at 352). As discussed previously, material issues of fact exist as to

whether Pinnacle and Empire had indeed been delegated with control over the area or work that

caused plaintiff’s accident. As there are triable issues of fact here, plaintiff’s motion must be

denied.

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CONCLUSION

Accordingly, it is

ORDERED, that the branch of plaintiff’s motion, seeking an order granting summary

judgment against defendants RCB1 NOMINEE LLC and TISHMAN CONSTRUCTION

CORPORATION OF NEW YORK pursuant to Labor Law § 241(6) predicated upon 12 NYCRR

1.7(d)(1) is granted; and it is further

ORDERED, that the branch of plaintiff’s motion, seeking an order granting summary

judgment against defendants PINNACLE INDUSTRIES II, LLC and EMPIRE TRANSIT MIX,

INC. pursuant to Labor Law § 241(6) predicated upon 12 NYCRR 1.7(d)(1) is denied; and it is

further

ORDERED, that the branch of plaintiff’s motion, seeking an order granting summary

judgment against defendants RCB1 NOMINEE LLC, TISHMAN CONSTRUCTION

CORPORATION OF NEW YORK, PINNACLE INDUSTRIES II, LLC and EMPIRE TRANSIT

MIX is denied; and it is further

ORDERED that, within twenty (20) days after this decision and order is uploaded to

NYSCEF, counsel for plaintiff shall serve a copy of this decision and order, with notice of entry,

on the defendants.

This constitutes the decision and order of the Court.

3/25/2025 $SIG$ DATE RICHARD G. LATIN, 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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