Sicurella v LCOR Asset Mgt. L.P. 2025 NY Slip Op 32104(U) June 12, 2025 Supreme Court, New York County Docket Number: Index No. 161470/2019 Judge: Mary V. Rosado 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. 161470/2019 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 06/13/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice ------------------- -------------X INDEX NO. 161470/2019 GUY SICURELLA MOTION DATE 07/22/2024 Plaintiff, MOTION SEQ. NO. - - -002 --- - V -
LCOR ASSET MANAGEMENT LIMITED PARTNERSHIP, DECISION + ORDER ON MOTION Defendant. -------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 002) 36, 37, 38, 39, 40, 41,42,43,44,45,46,47,48,49, 50, 51, 52, 53, 54,55, 56, 57, 58, 59 were read on this motion to/for JUDGMENT - SUMMARY
Upon the foregoing documents, and after a final submission date of April 8, 2025,
Defendant LCOR Asset Management Limited Partnership's ("LCOR Asset Management" or
"Defendant") motion for summary judgment dismissing Plaintiffs Complaint is granted in part
and denied in part.
I. Background
On June 3, 2017, Plaintiff, a mechanic working for non-party LCOR, Inc., at 26 Federal
Plaza, New York, New York (the "Building"), was monitoring the water level in a water tank
located on the 16th floor as part of a semi-annual generator test (NYSCEF Doc. 38 at 44-45). To
monitor the water tank, Plaintiff climbed a ladder, to the top of the tank, and checked the water
level with a flashlight (NYSCEF Doc. 38 at 54). Plaintiff was descending the ladder from the top
of the water tank when he lost his footing and fell (NYSCEF Doc. 38 at 94).
Seth Landau, the general counsel for both LCOR, Inc. and Defendant, testified that LCOR,
Inc. employs individuals, such as Plaintiff, and Defendant provided property management at the
161470/2019 SICURELLA, GUY vs. LCOR ASSET MANAGEMENT Page 1 of 5 Motion No. 002
1 of 5 [* 1] INDEX NO. 161470/2019 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 06/13/2025
Building where Plaintiff was injured (NYSCEF Doc. 39 at 19 and 41 at 15). Defendant now seeks
summary judgment dismissing Plaintiffs Complaint.
II. Discussion
A. Standard
"Summary judgment is a drastic remedy, to be granted only where the moving party has
tendered sufficient evidence to demonstrate the absence of any material issues of fact." (Vega v
Restani Const. Corp., 18 NY3d 499, 503 [2012]). The moving party's "burden is a heavy one and
on a motion for summary judgment, facts must be viewed in the light most favorable to the non-
moving party." (Jacobsen v New York City Health and Hasps. Corp., 22 NY3d 824, 833 [2014]).
Once this showing is made, the burden shifts to the party opposing the motion to produce
evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact
which require a trial (See e.g., Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
B. Labor Law§ 240(1)
Defendant's motion to dismiss Plaintiffs Labor Law § 240(1) claim is granted. Routine
maintenance is not the type of activity protected under Labor Law § 240(1) (Soto v J Crew Inc.,
95 AD3d 721 [1st Dept 2012]). The First Department has instructed courts, in determining whether
an activity is routine maintenance, to consider "whether the work in question was occasioned by
an isolated event as opposed to a recurring condition" (Dos Santos v Consolidated Edison ofNew
York, Inc., 104 AD3d 606, 607 [1st Dept 2013]). Here, the activity Plaintiff was engaged in -
namely monitoring a water tank, was routine maintenance occasioned by a recurring, semi-annual
generator test (Arevalo v Nasdaq Stock Market, Inc., 28 AD3d 242, 243 [1st Dept 2006]). This
was not an emergency repair that Plaintiff was called to take part in but part of planned, recurring
maintenance that took place twice a year over numerous years (see, e.g. Cordero v SL Green Realty
161470/2019 SICURELLA, GUY vs. LCOR ASSET MANAGEMENT Page 2 of 5 Motion No. 002
2 of 5 [* 2] INDEX NO. 161470/2019 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 06/13/2025
Corp., 38 AD3d 202 [1st Dept 2007] citing Abbatiello v Lancaster Studio Associates, 3 NY3d 46,
53 [2004]). The Court of Appeals has held in such situations, a plaintiff's injuries do not fall within
the purview of Labor Law§ 240(1) (see Esposito v New York City Indus. Dev. Agency, 1 NY3d
526,528 [2003]; see also Banner v Rockland Home for the Aged Hous. Dev. Fund Co., Inc., 129
AD3d 641, 642 [1st Dept 2015]). Therefore, Plaintiff's Labor Law§ 240(1) claim is dismissed
(Caban v 1691 Fulton Ave. Hous. Dev. Fund Corp., 200 AD3d 593 [1st Dept 2021]; Monaghan v
540 Inv. Land Co. LLC, 66 AD3d 605 [1st Dept 2009]).
C. Labor Law § 241(6)
Defendant's motion to dismiss Plaintiff's Labor Law § 241(6) claim is granted. For the
same reason Plaintiff's work does not fall within the extraordinary protections of Labor Law
§ 240(1 ), his monitoring of the water tank likewise does not fall within the protections of Labor
Law § 241(6). For this section to apply, a plaintiff's injuries must occur within the context of
construction, demolition, or excavation (Nagel v D & R Realty Corp., 99 NY2d 98, 103 [2002]).
However, Plaintiff was not engaged in any of those enumerated activities and was simply
monitoring water levels in a water tank while a routine generator test was underway (see, e.g. Toro
v Plaza Const. Corp., 82 AD3d 505, 505-06 [1st Dept 2011]; Rajkumar v Budd Contracting Corp.,
77 AD3d 595 [1st Dept 2010]). Therefore, Plaintiff's Labor Law§ 241(6) claim is dismissed (see
also Castaneda v Amsterco 67, LLC, 220 AD3d 406, 406 [1st Dept 2023]; Martinez v Bauer, 121
AD3d 495,496 [1st Dept 2014]).
D. Labor Law § 200 and Common Law Negligence
Defendant's motion to dismiss Plaintiff's Labor Law § 200 claim is denied. As a
preliminary matter, Defendant is a proper Labor Law defendant, as multiple witnesses testified
that Defendant served as an agent for the Building owner (see, e.g. Kittelstad v Losco Group, Inc.,
161470/2019 SICURELLA, GUY vs. LCOR ASSET MANAGEMENT Page 3 of 5 Motion No. 002
3 of 5 [* 3] INDEX NO. 161470/2019 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 06/13/2025
92 AD3d 612, 612-13 [1st Dept 2012]). Plaintiff alleges his injury was caused by the lack of
lighting provided on the 16th floor of the Building where he monitored the water tank. Although
he had a flashlight, he could not use the flashlight to navigate the darkness effectively when he
was using both hands to use the ladder attached to the water tank. Jorge Berg, a manager for LCOR,
testified at the time of Plaintiffs accident, the room of the water tank did not have flood lights.
A jury could reasonably find that Defendant had constructive notice of the darkness of the
room where Plaintiff fell, as the generator test occurred on a semi-annual basis, and each time the
test occurred the lights in the water tank room were turned off along with the electricity to the rest
of the building.
Free access — add to your briefcase to read the full text and ask questions with AI
Sicurella v LCOR Asset Mgt. L.P. 2025 NY Slip Op 32104(U) June 12, 2025 Supreme Court, New York County Docket Number: Index No. 161470/2019 Judge: Mary V. Rosado 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. 161470/2019 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 06/13/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice ------------------- -------------X INDEX NO. 161470/2019 GUY SICURELLA MOTION DATE 07/22/2024 Plaintiff, MOTION SEQ. NO. - - -002 --- - V -
LCOR ASSET MANAGEMENT LIMITED PARTNERSHIP, DECISION + ORDER ON MOTION Defendant. -------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 002) 36, 37, 38, 39, 40, 41,42,43,44,45,46,47,48,49, 50, 51, 52, 53, 54,55, 56, 57, 58, 59 were read on this motion to/for JUDGMENT - SUMMARY
Upon the foregoing documents, and after a final submission date of April 8, 2025,
Defendant LCOR Asset Management Limited Partnership's ("LCOR Asset Management" or
"Defendant") motion for summary judgment dismissing Plaintiffs Complaint is granted in part
and denied in part.
I. Background
On June 3, 2017, Plaintiff, a mechanic working for non-party LCOR, Inc., at 26 Federal
Plaza, New York, New York (the "Building"), was monitoring the water level in a water tank
located on the 16th floor as part of a semi-annual generator test (NYSCEF Doc. 38 at 44-45). To
monitor the water tank, Plaintiff climbed a ladder, to the top of the tank, and checked the water
level with a flashlight (NYSCEF Doc. 38 at 54). Plaintiff was descending the ladder from the top
of the water tank when he lost his footing and fell (NYSCEF Doc. 38 at 94).
Seth Landau, the general counsel for both LCOR, Inc. and Defendant, testified that LCOR,
Inc. employs individuals, such as Plaintiff, and Defendant provided property management at the
161470/2019 SICURELLA, GUY vs. LCOR ASSET MANAGEMENT Page 1 of 5 Motion No. 002
1 of 5 [* 1] INDEX NO. 161470/2019 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 06/13/2025
Building where Plaintiff was injured (NYSCEF Doc. 39 at 19 and 41 at 15). Defendant now seeks
summary judgment dismissing Plaintiffs Complaint.
II. Discussion
A. Standard
"Summary judgment is a drastic remedy, to be granted only where the moving party has
tendered sufficient evidence to demonstrate the absence of any material issues of fact." (Vega v
Restani Const. Corp., 18 NY3d 499, 503 [2012]). The moving party's "burden is a heavy one and
on a motion for summary judgment, facts must be viewed in the light most favorable to the non-
moving party." (Jacobsen v New York City Health and Hasps. Corp., 22 NY3d 824, 833 [2014]).
Once this showing is made, the burden shifts to the party opposing the motion to produce
evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact
which require a trial (See e.g., Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
B. Labor Law§ 240(1)
Defendant's motion to dismiss Plaintiffs Labor Law § 240(1) claim is granted. Routine
maintenance is not the type of activity protected under Labor Law § 240(1) (Soto v J Crew Inc.,
95 AD3d 721 [1st Dept 2012]). The First Department has instructed courts, in determining whether
an activity is routine maintenance, to consider "whether the work in question was occasioned by
an isolated event as opposed to a recurring condition" (Dos Santos v Consolidated Edison ofNew
York, Inc., 104 AD3d 606, 607 [1st Dept 2013]). Here, the activity Plaintiff was engaged in -
namely monitoring a water tank, was routine maintenance occasioned by a recurring, semi-annual
generator test (Arevalo v Nasdaq Stock Market, Inc., 28 AD3d 242, 243 [1st Dept 2006]). This
was not an emergency repair that Plaintiff was called to take part in but part of planned, recurring
maintenance that took place twice a year over numerous years (see, e.g. Cordero v SL Green Realty
161470/2019 SICURELLA, GUY vs. LCOR ASSET MANAGEMENT Page 2 of 5 Motion No. 002
2 of 5 [* 2] INDEX NO. 161470/2019 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 06/13/2025
Corp., 38 AD3d 202 [1st Dept 2007] citing Abbatiello v Lancaster Studio Associates, 3 NY3d 46,
53 [2004]). The Court of Appeals has held in such situations, a plaintiff's injuries do not fall within
the purview of Labor Law§ 240(1) (see Esposito v New York City Indus. Dev. Agency, 1 NY3d
526,528 [2003]; see also Banner v Rockland Home for the Aged Hous. Dev. Fund Co., Inc., 129
AD3d 641, 642 [1st Dept 2015]). Therefore, Plaintiff's Labor Law§ 240(1) claim is dismissed
(Caban v 1691 Fulton Ave. Hous. Dev. Fund Corp., 200 AD3d 593 [1st Dept 2021]; Monaghan v
540 Inv. Land Co. LLC, 66 AD3d 605 [1st Dept 2009]).
C. Labor Law § 241(6)
Defendant's motion to dismiss Plaintiff's Labor Law § 241(6) claim is granted. For the
same reason Plaintiff's work does not fall within the extraordinary protections of Labor Law
§ 240(1 ), his monitoring of the water tank likewise does not fall within the protections of Labor
Law § 241(6). For this section to apply, a plaintiff's injuries must occur within the context of
construction, demolition, or excavation (Nagel v D & R Realty Corp., 99 NY2d 98, 103 [2002]).
However, Plaintiff was not engaged in any of those enumerated activities and was simply
monitoring water levels in a water tank while a routine generator test was underway (see, e.g. Toro
v Plaza Const. Corp., 82 AD3d 505, 505-06 [1st Dept 2011]; Rajkumar v Budd Contracting Corp.,
77 AD3d 595 [1st Dept 2010]). Therefore, Plaintiff's Labor Law§ 241(6) claim is dismissed (see
also Castaneda v Amsterco 67, LLC, 220 AD3d 406, 406 [1st Dept 2023]; Martinez v Bauer, 121
AD3d 495,496 [1st Dept 2014]).
D. Labor Law § 200 and Common Law Negligence
Defendant's motion to dismiss Plaintiff's Labor Law § 200 claim is denied. As a
preliminary matter, Defendant is a proper Labor Law defendant, as multiple witnesses testified
that Defendant served as an agent for the Building owner (see, e.g. Kittelstad v Losco Group, Inc.,
161470/2019 SICURELLA, GUY vs. LCOR ASSET MANAGEMENT Page 3 of 5 Motion No. 002
3 of 5 [* 3] INDEX NO. 161470/2019 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 06/13/2025
92 AD3d 612, 612-13 [1st Dept 2012]). Plaintiff alleges his injury was caused by the lack of
lighting provided on the 16th floor of the Building where he monitored the water tank. Although
he had a flashlight, he could not use the flashlight to navigate the darkness effectively when he
was using both hands to use the ladder attached to the water tank. Jorge Berg, a manager for LCOR,
testified at the time of Plaintiffs accident, the room of the water tank did not have flood lights.
A jury could reasonably find that Defendant had constructive notice of the darkness of the
room where Plaintiff fell, as the generator test occurred on a semi-annual basis, and each time the
test occurred the lights in the water tank room were turned off along with the electricity to the rest
of the building. Therefore, triable issues of fact as to whether Defendant knew about the darkness,
and whether it caused Plaintiffs fall, preclude dismissal of Plaintiffs Labor Law § 200 and
common law negligence claims (see also McKinney v Empire State Dev. Corp., 217 AD3d 574,
575-76 [1st Dept 2023]). Therefore, Defendant's motion for summary judgment dismissing these
claims is denied (see also Sinai v Luna Park Housing Corp., 209 AD3d 600,601 [1st Dept 2022]).
Accordingly, it is hereby,
ORDERED that Defendant's motion for summary judgment dismissing Plaintiffs
Complaint is granted in part, and Plaintiffs Labor Law §§ 240( 1) and 241 (6) claims are dismissed;
and it is further
ORDERED that Defendant's motion for summary judgment dismissing Plaintiffs Labor
Law § 200 and common law negligence claims is denied; and it is further
[The remainder of this page is intentionally left blank.]
161470/2019 SICURELLA, GUY vs. LCOR ASSET MANAGEMENT Page 4 of 5 Motion No. 002
4 of 5 [* 4] INDEX NO. 161470/2019 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 06/13/2025
ORDERED that within ten days of entry, counsel for Defendant shall serve a copy of this
Decision and Order, with notice of entry, on all parties via NYSCEF.
This constitutes the Decision and Order of the Court.
6/12/2025 DATE tv~, v~ J~ HON. MlRY V. ROSADO, J.S.C.
~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
161470/2019 SICURELLA, GUY vs. LCOR ASSET MANAGEMENT Page 5 of 5 Motion No. 002
5 of 5 [* 5]