Rivas-Zapata v Browne 2026 NY Slip Op 30661(U) February 18, 2026 Supreme Court, New York County Docket Number: Index No. 154303/2021 Judge: Leslie A. Stroth 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.
file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.1543032021.NEW_YORK.001.LBLX036_TO.html[03/09/2026 3:45:52 PM] FILED: NEW YORK COUNTY CLERK 02/25/2026 04:33 PM INDEX NO. 154303/2021 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 02/25/2026
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY
PRESENT: HON. LESLIE A. STROTH PART 12M Justice -------,-----------------X INDEX NO. 154303/2021 ERICKSON MANUEL RIVAS-ZAPATA, MOTION DATE 07/17/2025 Plaintiff, MOTION SEQ. NO. 004 -v- THOMAS J BROWNE, ANDREW J BOLTON, DECISION + ORDER ON MOTION Defendant. -------------------X
THOMAS BROWNE, ANDREW BOLTON Third-Party Index No. 595012/2022 Plaintiff,
-against-
S. DONADIC INC.
Defendant. -------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 004) 104, 105, 106, 107, 10~ 109,110,111,112,113, 11~ 116,117, 11~ 119 were read on this motion to/for JUDGMENT-SUMMARY
Erickson Manuel Rivas-Zapata ("Plaintiff'') commenced this action against Thomas J
Browne and Andrew J Bolton ("Defendants") to recover damages for injuries sustained while
working on a renovation of Defendants' home at 1 Sutton Place, New York, New York (the
"Premises") on February 12, 2020. Plaintiff alleges that he was standing on a joist while
removing wood floor tiles, and the joist snapped, causing Plaintiff to fall to the floor below. At
the time of the accident, Defendants owned the Premises, and Third-Party Defendant S. Donadic
Inc. ("Donadic") was the general contractor and Plaintiffs employer.
The complaint asserts claims for Labor Law§§ 240(1), 241(6), 200, and common law
negligence. Defendants' third-party complaint against Donadic asserts claims for common law
154303/2021 RIVAS-zAPATA, ERICKSON MANUEL vs. BROWNE, THOMAS JET AL Page 1 of 5 Motion No. 004
[* 1] 1 of 5 FILED: NEW YORK COUNTY CLERK 02/25/2026 04:33 PM INDEX NO. 154303/2021 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 02/25/2026
indemnity, contribution, contractual indemnity, and breach of contract for failure to procure
insurance. In their third-party answer, Donadic asserts a counterclaim for contribution.
Defendants now move for summary judgment pursuant to CPLR 3212(b), and dismissal
of the complaint in its entirety and all counterclaims.
LEGAL STANDARD
Pursuant to CPLR 3212(b), the proponent of a motion for summary judgment must tender
sufficient evidence to show the absence of any material issue of fact and the right to entitlement to
judgment as a matter oflaw (Alvarez v Prospect Hosp., 68 NY2d 320,323 [1986]). Once a party
has submitted competent proof demonstrating that there is no substance to its opponent's claims
and no disputed issues of fact, the opponent, in turn, is required to "lay bare [its] proof and come
forward with some admissible proof that would require a trial of the material questions of fact on
which [its] claims rest" (Ferber v Sterndent Corp., 51 NY2d 782, 783 [1980]). The party opposing
a motion for summary judgment is entitled to all favorable inferences that can be drawn from the
evidence submitted (see Dauman Displays, Inc. v Masturzo, 168 AD2d 204, [1st Dept 1990]).
"Since [summary judgment] deprives the litigant of his day in court it is considered a drastic
remedy which should only be employed when there is no doubt as to the absence of triable issues."
(Andre v Pomeroy, 35 NY2d 361,364 [1974]).
DISCUSSION
I. Labor Law §§ 240(1) and 241(6)
Labor Law§§ 240(1) and 241(6) specifically exempt "owners of one and two-family
dwellings who contract for but do not direct or control the work" from statutory liability (Labor
Law§§ 240[1] and 241[6]; see also Bartoo v O'Buell,81 NY2d 362 [1996]; Albrado v French
154303/2021 RIVAS-ZAPATA, ERICKSON MANUEL vs. BROWNE, THOMAS JET AL Page2of5 Motion No. 004
[* 2] 2 of 5 FILED: NEW YORK COUNTY CLERK 02/25/2026 04:33 PM INDEX NO. 154303/2021 .. NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 02/25/2026
Council LLC, 149 AD3d 581 [1st Dept 2017]; Farias v Simon, 122 AD3d 466 [1st Dept 2014];
Putnam v Karaco Industries Corp., 253 AD2d 457 [2d Dept 2008]).
Here, it is undisputed through Defendants' and Plaintiff's depositions that Defendants
owned the Premises, that the Premises is a single-family home, and that Defendants did not
direct or control the work being performed. Defendants submitted their deposition testimony
with their motion (see NYSCEF Doc. No. 112), which establishes that they were the sole
occupants of the Premises, that the Premises served as their primary and only residence, that they
purchased the property as a single-family dwelling, and that the renovations were being
completed to prepare the home for their sole residential use and occupancy. Defendants also
testified that they lived in a different apartment during the renovation, that they did not
participate in the execution of the renovation, and that they only visited the property twice during
the two-year renovation. Additionally, Defendants submitted Plaintiff's deposition testimony
with their motion (see NYSCEF Doc. No. 111 ). During Plaintiff's deposition, Plaintiff stated
that he did not know Defendants, that Defendants did not supervise his work, and that his
supervisor, Brian, was the only individual who supervised his work.
In opposition, Plaintiff does not dispute these facts, nor does he present any evidence that
creates a triable issue of fact. Plaintiff only argues that summary judgment is premature because
plaintiff's employer, Donadic, has not yet been deposed and they may create an issue of fact
regarding the scope of the project. This is insufficient to defeat Defendant's motion for summary
judgment (see Flores v City ofNY, 66 AD3d 599,600 [1st Dept 2009] ["The mere hope that
evidence sufficient to defeat a motion for summary judgment may be uncovered during the
discovery process is insufficient to deny such a motion"]).
154303/2021 RIVAS-ZAPATA, ERICKSON MANUEL vs. BROWNE, THOMAS JET AL Page 3 of 5 Motion No. 004
[* 3] 3 of 5 FILED: NEW YORK COUNTY CLERK 02/25/2026 04:33 PM INDEX NO. 154303/2021 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 02/25/2026
Third-Party Defendant Donadic also does not dispute Defendants' facts and adopts and
incorporates by reference Defendants' statement of facts (see NYSCEF Doc. No. 113). Third-
Paty Defendant Donadic only partially opposes Defendants' motion and argues that if the
complaint is not dismissed, the third-party counterclaim for contribution should not be dismissed
(see id.).
Accordingly, Defendants' motion for summary judgment on Plaintiffs Labor Law§§
240(1) and 241(6) claims is granted.
II. Labor Law § 200 and Common-Law Negligence
Liability for causes of action sounding in common-law negligence and for violations of
Labor Law §200 fall into two broad categories: "those arising from an alleged defect or
dangerous condition on the premises and those arising from the manner in which the work was
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Rivas-Zapata v Browne 2026 NY Slip Op 30661(U) February 18, 2026 Supreme Court, New York County Docket Number: Index No. 154303/2021 Judge: Leslie A. Stroth 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.
file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.1543032021.NEW_YORK.001.LBLX036_TO.html[03/09/2026 3:45:52 PM] FILED: NEW YORK COUNTY CLERK 02/25/2026 04:33 PM INDEX NO. 154303/2021 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 02/25/2026
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY
PRESENT: HON. LESLIE A. STROTH PART 12M Justice -------,-----------------X INDEX NO. 154303/2021 ERICKSON MANUEL RIVAS-ZAPATA, MOTION DATE 07/17/2025 Plaintiff, MOTION SEQ. NO. 004 -v- THOMAS J BROWNE, ANDREW J BOLTON, DECISION + ORDER ON MOTION Defendant. -------------------X
THOMAS BROWNE, ANDREW BOLTON Third-Party Index No. 595012/2022 Plaintiff,
-against-
S. DONADIC INC.
Defendant. -------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 004) 104, 105, 106, 107, 10~ 109,110,111,112,113, 11~ 116,117, 11~ 119 were read on this motion to/for JUDGMENT-SUMMARY
Erickson Manuel Rivas-Zapata ("Plaintiff'') commenced this action against Thomas J
Browne and Andrew J Bolton ("Defendants") to recover damages for injuries sustained while
working on a renovation of Defendants' home at 1 Sutton Place, New York, New York (the
"Premises") on February 12, 2020. Plaintiff alleges that he was standing on a joist while
removing wood floor tiles, and the joist snapped, causing Plaintiff to fall to the floor below. At
the time of the accident, Defendants owned the Premises, and Third-Party Defendant S. Donadic
Inc. ("Donadic") was the general contractor and Plaintiffs employer.
The complaint asserts claims for Labor Law§§ 240(1), 241(6), 200, and common law
negligence. Defendants' third-party complaint against Donadic asserts claims for common law
154303/2021 RIVAS-zAPATA, ERICKSON MANUEL vs. BROWNE, THOMAS JET AL Page 1 of 5 Motion No. 004
[* 1] 1 of 5 FILED: NEW YORK COUNTY CLERK 02/25/2026 04:33 PM INDEX NO. 154303/2021 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 02/25/2026
indemnity, contribution, contractual indemnity, and breach of contract for failure to procure
insurance. In their third-party answer, Donadic asserts a counterclaim for contribution.
Defendants now move for summary judgment pursuant to CPLR 3212(b), and dismissal
of the complaint in its entirety and all counterclaims.
LEGAL STANDARD
Pursuant to CPLR 3212(b), the proponent of a motion for summary judgment must tender
sufficient evidence to show the absence of any material issue of fact and the right to entitlement to
judgment as a matter oflaw (Alvarez v Prospect Hosp., 68 NY2d 320,323 [1986]). Once a party
has submitted competent proof demonstrating that there is no substance to its opponent's claims
and no disputed issues of fact, the opponent, in turn, is required to "lay bare [its] proof and come
forward with some admissible proof that would require a trial of the material questions of fact on
which [its] claims rest" (Ferber v Sterndent Corp., 51 NY2d 782, 783 [1980]). The party opposing
a motion for summary judgment is entitled to all favorable inferences that can be drawn from the
evidence submitted (see Dauman Displays, Inc. v Masturzo, 168 AD2d 204, [1st Dept 1990]).
"Since [summary judgment] deprives the litigant of his day in court it is considered a drastic
remedy which should only be employed when there is no doubt as to the absence of triable issues."
(Andre v Pomeroy, 35 NY2d 361,364 [1974]).
DISCUSSION
I. Labor Law §§ 240(1) and 241(6)
Labor Law§§ 240(1) and 241(6) specifically exempt "owners of one and two-family
dwellings who contract for but do not direct or control the work" from statutory liability (Labor
Law§§ 240[1] and 241[6]; see also Bartoo v O'Buell,81 NY2d 362 [1996]; Albrado v French
154303/2021 RIVAS-ZAPATA, ERICKSON MANUEL vs. BROWNE, THOMAS JET AL Page2of5 Motion No. 004
[* 2] 2 of 5 FILED: NEW YORK COUNTY CLERK 02/25/2026 04:33 PM INDEX NO. 154303/2021 .. NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 02/25/2026
Council LLC, 149 AD3d 581 [1st Dept 2017]; Farias v Simon, 122 AD3d 466 [1st Dept 2014];
Putnam v Karaco Industries Corp., 253 AD2d 457 [2d Dept 2008]).
Here, it is undisputed through Defendants' and Plaintiff's depositions that Defendants
owned the Premises, that the Premises is a single-family home, and that Defendants did not
direct or control the work being performed. Defendants submitted their deposition testimony
with their motion (see NYSCEF Doc. No. 112), which establishes that they were the sole
occupants of the Premises, that the Premises served as their primary and only residence, that they
purchased the property as a single-family dwelling, and that the renovations were being
completed to prepare the home for their sole residential use and occupancy. Defendants also
testified that they lived in a different apartment during the renovation, that they did not
participate in the execution of the renovation, and that they only visited the property twice during
the two-year renovation. Additionally, Defendants submitted Plaintiff's deposition testimony
with their motion (see NYSCEF Doc. No. 111 ). During Plaintiff's deposition, Plaintiff stated
that he did not know Defendants, that Defendants did not supervise his work, and that his
supervisor, Brian, was the only individual who supervised his work.
In opposition, Plaintiff does not dispute these facts, nor does he present any evidence that
creates a triable issue of fact. Plaintiff only argues that summary judgment is premature because
plaintiff's employer, Donadic, has not yet been deposed and they may create an issue of fact
regarding the scope of the project. This is insufficient to defeat Defendant's motion for summary
judgment (see Flores v City ofNY, 66 AD3d 599,600 [1st Dept 2009] ["The mere hope that
evidence sufficient to defeat a motion for summary judgment may be uncovered during the
discovery process is insufficient to deny such a motion"]).
154303/2021 RIVAS-ZAPATA, ERICKSON MANUEL vs. BROWNE, THOMAS JET AL Page 3 of 5 Motion No. 004
[* 3] 3 of 5 FILED: NEW YORK COUNTY CLERK 02/25/2026 04:33 PM INDEX NO. 154303/2021 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 02/25/2026
Third-Party Defendant Donadic also does not dispute Defendants' facts and adopts and
incorporates by reference Defendants' statement of facts (see NYSCEF Doc. No. 113). Third-
Paty Defendant Donadic only partially opposes Defendants' motion and argues that if the
complaint is not dismissed, the third-party counterclaim for contribution should not be dismissed
(see id.).
Accordingly, Defendants' motion for summary judgment on Plaintiffs Labor Law§§
240(1) and 241(6) claims is granted.
II. Labor Law § 200 and Common-Law Negligence
Liability for causes of action sounding in common-law negligence and for violations of
Labor Law §200 fall into two broad categories: "those arising from an alleged defect or
dangerous condition on the premises and those arising from the manner in which the work was
performed" (Cappabianca v Skanska USA Bldg., Inc., 99 AD3d 139, 144 [1st Dept 2012].
Where the injury is caused by the manner in which work is performed, liability is limited to those
who exercise control or supervision over the work (Aranda v Park East Const., 4 AD3d 315, 316
[2d Dept 2004]; see also Lombardi v Stout, 80 NY2d 290,295 [1992]). Where the injury is
caused by an alleged dangerous condition, a homeowner is liable only if they had actual or
constructive notice of the condition (Cappabianca v Skanska USA Bldg., Inc., 99 AD3d at 144).
As discussed above, Defendants met theix initial burden of demonstrating that they
exercised no actual supervision or control over Plaintiff or his work. Defendants also
demonstrated that they had no actual or constructive notice of any alleged dangerous condition
through their deposition, which established that Defendants did not live at the Premises during
the two-year renovation, that they only visited the Premises twice, and that they were not
involved in the renovation work on the Premises. In opposition, Plaintiff failed to submit any
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evidence that raises a triable issue of fact regarding Plaintiffs, or Defendants' notice of a
dangerous condition. Therefore, Defendants' motion for summary judgment on Plaintiffs Labor
Law §200 and common-law negligence claim is granted.
Accordingly, it is hereby
ORDERED that Defendants' motion for summary judgment dismissing the complaint
and all counterclaims against them is granted and the complaint is dismissed, and it is further
ORDERED that the Clerk is directed to enter judgment accordingly.
This constitutes the decision and order of the Court.
2/18/2026 DATE ~TH
~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION J.S.C. GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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