Vinson v. Ferrara Bros., LLC
This text of Vinson v. Ferrara Bros., LLC (Vinson v. Ferrara Bros., LLC) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
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Bureau Thomas J.K. Smith, State Reporter
Vinson v Ferrara Bros., LLC
2026 NY Slip Op 04448
July 15, 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.
Carnell Vinson, appellant,
v
Ferrara Bros., LLC, et al., defendants third-party defendants, Toll Bros., Inc., et al., defendants third-party plaintiffs-respondents.
Supreme Court of the State of New York, Appellate Division, Second Judicial Department
Decided on July 15, 2026
2024-07167, (Index No. 525187/18)
Lara J. Genovesi, J.P.
Lillian Wan
Lourdes M. Ventura
Susan Quirk, JJ.
Koenigsberg & Associates, P.C. (Pollack Pollack Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac], of counsel), for appellant.
Tyson & Mendes LLP (Kahana Feld LLP, New York, NY [John F. Watkins, Kaitlin Sines, and Sofya Uvadov], of counsel), for defendants third-party plaintiffs-respondents.
DECISION & ORDER
In a consolidated action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Richard Velasquez, J.), dated March 27, 2024. The order, insofar as appealed from, granted that branch of the motion of the defendants third-party plaintiffs Toll Bros., Inc., Toll Brothers Real Estate, Inc., and Toll NY II, LLC, which was for summary judgment dismissing the cause of action alleging common-law negligence insofar as asserted against them and denied, as academic, the plaintiff's cross-motion for summary judgment dismissing the third-party complaint.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the motion of the defendants third-party plaintiffs Toll Bros., Inc., Toll Brothers Real Estate, Inc., and Toll NY II, LLC, which was for summary judgment dismissing the cause of action alleging common-law negligence insofar as asserted against them is denied, and the plaintiff's cross-motion for summary judgment dismissing the third-party complaint is granted.
On November 17, 2018, the plaintiff allegedly was injured while directing concrete delivery trucks at a construction site owned and developed by the defendant third-party plaintiff Toll NY II, LLC (hereinafter Toll). Nonparty RC Structures, Inc., a subcontractor, employed the plaintiff to manage deliveries of concrete from the defendant third-party defendant Ferrara Bros., LLC. The plaintiff was managing the concrete delivery trucks when he was struck by a truck being driven in reverse by the defendant third-party defendant Jhon F. Franco, an employee of Ferrara Bros., LLC.
In December 2018, the plaintiff commenced this action against, among others, Franco and Ferrara Bros., LLC (hereinafter together the Ferrara Bros. defendants). The Ferrara Bros. defendants then commenced a third-party action against, among others, Toll Bros., Inc., and Toll Brothers Real Estate, Inc., Toll's affiliated entities. The plaintiff then amended the complaint to add Toll Bros., Inc., and Toll Brothers Real Estate, Inc., as defendants in the main action. In February 2023, this action was consolidated with a separate action commenced by the plaintiff against Toll (hereinafter collectively with Toll Bros., Inc., and Toll Brothers Real Estate, Inc., the Toll [*2]defendants).
The Toll defendants moved, inter alia, for summary judgment dismissing the amended complaint insofar as asserted against them. The plaintiff opposed the motion. In July 2023, the plaintiff settled his claims against the Ferrara Bros. defendants. The Toll defendants subsequently commenced a third-party action against the Ferrara Bros. defendants. The plaintiff then cross-moved for summary judgment dismissing the complaint in that third-party action.
In an order dated March 27, 2024, the Supreme Court, among other things, granted that branch of the Toll defendants' motion which was for summary judgment dismissing the cause of action alleging common-law negligence insofar as asserted against them and denied the plaintiff's cross-motion. The plaintiff appeals.
As an initial matter, the Supreme Court properly considered the Toll defendants' motion on its merits rather than denying it as untimely. Contrary to the plaintiff's contention, the court could consider an affirmation of the Toll defendants' attorney explaining the untimeliness, which was submitted for the first time in their reply papers, as the plaintiff had an opportunity to respond and to submit papers in surreply (see CPLR 2001; Zelenka v Hertz, 230 AD3d 539, 540).
However, the Toll defendants failed to make a prima facie showing of their entitlement to judgment as a matter of law dismissing the cause of action alleging common-law negligence insofar as asserted against them. Liability for common-law negligence in failing to provide an employee with a safe place to work "generally falls into two broad categories: instances involving the manner in which the work is performed, and instances in which workers are injured as a result of dangerous or defective premises conditions at a work site" (Abelleira v City of New York, 120 AD3d 1163, 1164; see Ortega v Puccia, 57 AD3d 54, 61). "Where . . . the plaintiff alleges that an accident involves both a dangerous condition on the premises and the means and methods of the work, the property owner moving for summary judgment . . . is obligated to address the proof applicable to both liability standards" (Venter v Cherkasky, 200 AD3d 932, 934 [internal quotation marks omitted]). However, defendants are not "required to blindly accept a plaintiff's categorization of an accident as either a method and manner case or a dangerous condition case, or both" (Poulin v Ultimate Homes, Inc., 166 AD3d 667, 673). "[T]his Court has consistently allowed a defendant moving for summary judgment to establish, as part of its prima facie showing, that the accident falls into one of the two broad categories" (id.).
"[W]hen the manner and method of work is at issue . . . the issue is whether the defendant had the authority to supervise or control the work" (Rodriguez v HY 38 Owner, LLC, 192 AD3d 839, 841 [internal quotation marks omitted]; see Ortega v Puccia, 57 AD3d at 61-62). "[A] defendant has the authority to supervise or control the work . . . when that defendant bears the responsibility for the manner in which the work is performed" (Pisculli v Tew, 238 AD3d 919, 922 [internal quotation marks omitted]).
Here, the Toll defendants established, prima facie, that the accident did not arise from a dangerous or defective premises condition but from the method and manner of the work (see Poulin v Ultimate Homes, Inc., 166 AD3d at 672).
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Vinson v. Ferrara Bros., LLC, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vinson-v-ferrara-bros-llc-nyappdiv-2026.