Ward v Times Sq. Hotel Owner LLC 2025 NY Slip Op 30661(U) February 26, 2025 Supreme Court, New York County Docket Number: Index No. 154353/2022 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. 154353/2022 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 02/26/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY
PRESENT: HON. MARY V. ROSADO PART 33M Justice ---·--------------------- -----X INDEX NO. 154353/2022 MARTIN JOSEPH WARD, MOTION DATE 05/03/2024 Plaintiff, MOTION SEQ. NO. 001 - V -
TIMES SQUARE HOTEL OWNER LLC,PAVARINI DECISION + ORDER ON MCGOVERN, LLC MOTION Defendant. --------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 18, 19, 20, 21, 22, 23,24,25,26,27,28,29, 30, 31, 32, 33, 34, 35,36, 37, 38, 39,40,41 were read on this motion to/for JUDGMENT-SUMMARY Upon the foregoing documents, and after a final submission date of December 10, 2024,
Plaintiff Martin Joseph Ward's ("Plaintiff') motion for summary judgment on the issue ofliability
on his Labor Law §§ 200, 240(1), and 241(6) claims against Defendants is granted in part and
denied in part.
I. Background
On January 12, 2022, Plaintiff was working for a concrete subcontractor of the Defendant
general contractor, Pavarini McGovern, LLC at 1568 Broadway, New York, New York (the
"Construction Site"). The Construction Site was owned by Defendant Times Square Hotel Owner.
On the date of the accident, Plaintiff walked the stairway from the fourteenth floor to the sixth
floor. After reaching the ninth floor, Plaintiff slipped on ice on the landing of the staircase. Plaintiff
seeks summary judgment on his Labor Law§§ 200, 240(1), and 241(6) claims.
154353/2022 WARD, MARTIN JOSEPH vs. TIMES SQUARE HOTEL OWNER LLC ET AL Page 1 of 5 Motion No. 001
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II. Background
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];
Pemberton v New York City Tr. Auth., 304 AD2d 340, 342 [1st Dept 2003]).
B. Labor Law§ 240(1)
Plaintiffs motion for summary judgment on the issue ofliability on his Labor Law§ 240( 1)
claim is denied. The crux of the Defendants' opposition is whether Plaintiffs accident on the
staircase constitutes an elevation related hazard or defective safety device within the ambit of
Labor Law§ 240(1 ). This Court finds there is an issue of fact as to whether the permanent staircase
constitutes a safety device within the meaning of Labor Law § 240(1 ).
Where a plaintiff is required to use a stairway to complete their work, and the stairway is
the sole means of access to the work area, the stairway constitutes a safety device under Labor
Law§ 240(1) (Conlon v Carnegie Hall Society, Inc., 159 AD3d 655 [1st Dept 2018] citing Ramirez
v Shoats, 78 AD3d 515, 517 [1st Dept 2010]). However, where the stairway is not the sole means
of reaching the work area, there is an issue of fact as to whether the staircase constitutes a safety
device (see Gamez v Sandy Clarkson LLC, 221 AD3d 453,454 [1st Dept 2023] citing Waldron v
154353/2022 WARD, MARTIN JOSEPH vs. TIMES SQUARE HOTEL OWNER LLC ET AL Page 2 of 5 Motion No. 001
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City of New York, 203 AD3d 565, 656-566 [1st Dept 2022]). Here, there is testimony that there
were three available hoists at the worksite which were used to move workers amongst the various
floors. Moreover, Plaintiff himself admitted that he used the hoist to reach the fourteenth floor the
day of his accident, but he decided to use the stairs to descend to the sixth floor because the hoist
was slow. Therefore, the stairs where Plaintiff fell were not the sole means of accessing the work
area. As the hoists may have provided alternative and adequate safety devices for Plaintiff to move
about the floors of the Construction Site, there is an issue of fact as to whether there exists a Labor
Law § 240(1) violation, and therefore summary judgment is denied as to this claim.
C. Labor Law§ 241(6)
Plaintiffs motion for summary judgment on his Labor Law § 241 (6) claim predicated on
a violation oflndustrial Code§ 23-1.7(d) is granted. As held by the Court of Appeals, Labor Law
§ 241(6) imposes a non-delegable duty upon an owner and general contractor to "respond in
damages" if a worker engaged in construction is injured due to inadequate safety and protection,
even if the worker sustains an injury because of another party's negligence (Rizzuto v L.A. Wenger
Contracting Co., 91 NY2d 343, 350 [1998]). A general contractor is not absolved of liability for
lack of notice of a dangerous condition or for lack of an opportunity to cure the dangerous
condition (Gallina v MI'A Capital Construction Company, 193 AD3d 414 [1st Dept 2021 ]).
Industrial Code 23-1. 7( d) provides that "[ e]mployers shall not suffer or permit any
employee to use a floor. .. which is in a slippery condition. Ice, snow, water, grease and any other
foreign substance which may cause slippery footing shall be removed ... ". Here, there is no dispute
that Plaintiff slipped and fell on ice on the stairs in violation of Industrial Code 23-1. 7( d) (see also
Talk v 11 West 42 Realty Investors, LLC, 201 AD3d 491 [1st Dept 2022]; Potenza v City of New
York, 189 AD3d 705 [1st Dept 2020]).
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In opposition, Defendants fail to raise an issue of fact. As a preliminary matter, that Plaintiff
may be found comparatively negligent is no bar to summary judgment on the issue of liability
under Labor Law§ 241(6) (see Rodriguez v City of New York, 31 NY3d 312 [2018]; see also
Luciano v New York City Haus. Auth., 157 AD3d 617 [1st Dept 2018]). Plaintiff's failure to take
photos of the allegedly icy condition and his failure to report immediately his incident are
insufficient to deny summary judgment where there is no evidence directly contradicting
Plaintiff's testimony he slipped and fell on ice. Defendants' attempt to attack Plaintiff's credibility
is especially insufficient in lieu of the corroborating testimony of non-party Sean Hughes, who
testified he witnessed Plaintiff fall and that the stairwell was icy (NYSCEF Doc. 27 at 15-16).
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Ward v Times Sq. Hotel Owner LLC 2025 NY Slip Op 30661(U) February 26, 2025 Supreme Court, New York County Docket Number: Index No. 154353/2022 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. 154353/2022 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 02/26/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY
PRESENT: HON. MARY V. ROSADO PART 33M Justice ---·--------------------- -----X INDEX NO. 154353/2022 MARTIN JOSEPH WARD, MOTION DATE 05/03/2024 Plaintiff, MOTION SEQ. NO. 001 - V -
TIMES SQUARE HOTEL OWNER LLC,PAVARINI DECISION + ORDER ON MCGOVERN, LLC MOTION Defendant. --------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 18, 19, 20, 21, 22, 23,24,25,26,27,28,29, 30, 31, 32, 33, 34, 35,36, 37, 38, 39,40,41 were read on this motion to/for JUDGMENT-SUMMARY Upon the foregoing documents, and after a final submission date of December 10, 2024,
Plaintiff Martin Joseph Ward's ("Plaintiff') motion for summary judgment on the issue ofliability
on his Labor Law §§ 200, 240(1), and 241(6) claims against Defendants is granted in part and
denied in part.
I. Background
On January 12, 2022, Plaintiff was working for a concrete subcontractor of the Defendant
general contractor, Pavarini McGovern, LLC at 1568 Broadway, New York, New York (the
"Construction Site"). The Construction Site was owned by Defendant Times Square Hotel Owner.
On the date of the accident, Plaintiff walked the stairway from the fourteenth floor to the sixth
floor. After reaching the ninth floor, Plaintiff slipped on ice on the landing of the staircase. Plaintiff
seeks summary judgment on his Labor Law§§ 200, 240(1), and 241(6) claims.
154353/2022 WARD, MARTIN JOSEPH vs. TIMES SQUARE HOTEL OWNER LLC ET AL Page 1 of 5 Motion No. 001
[* 1] 1 of 5 INDEX NO. 154353/2022 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 02/26/2025
II. Background
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];
Pemberton v New York City Tr. Auth., 304 AD2d 340, 342 [1st Dept 2003]).
B. Labor Law§ 240(1)
Plaintiffs motion for summary judgment on the issue ofliability on his Labor Law§ 240( 1)
claim is denied. The crux of the Defendants' opposition is whether Plaintiffs accident on the
staircase constitutes an elevation related hazard or defective safety device within the ambit of
Labor Law§ 240(1 ). This Court finds there is an issue of fact as to whether the permanent staircase
constitutes a safety device within the meaning of Labor Law § 240(1 ).
Where a plaintiff is required to use a stairway to complete their work, and the stairway is
the sole means of access to the work area, the stairway constitutes a safety device under Labor
Law§ 240(1) (Conlon v Carnegie Hall Society, Inc., 159 AD3d 655 [1st Dept 2018] citing Ramirez
v Shoats, 78 AD3d 515, 517 [1st Dept 2010]). However, where the stairway is not the sole means
of reaching the work area, there is an issue of fact as to whether the staircase constitutes a safety
device (see Gamez v Sandy Clarkson LLC, 221 AD3d 453,454 [1st Dept 2023] citing Waldron v
154353/2022 WARD, MARTIN JOSEPH vs. TIMES SQUARE HOTEL OWNER LLC ET AL Page 2 of 5 Motion No. 001
2 of 5 [* 2] INDEX NO. 154353/2022 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 02/26/2025
City of New York, 203 AD3d 565, 656-566 [1st Dept 2022]). Here, there is testimony that there
were three available hoists at the worksite which were used to move workers amongst the various
floors. Moreover, Plaintiff himself admitted that he used the hoist to reach the fourteenth floor the
day of his accident, but he decided to use the stairs to descend to the sixth floor because the hoist
was slow. Therefore, the stairs where Plaintiff fell were not the sole means of accessing the work
area. As the hoists may have provided alternative and adequate safety devices for Plaintiff to move
about the floors of the Construction Site, there is an issue of fact as to whether there exists a Labor
Law § 240(1) violation, and therefore summary judgment is denied as to this claim.
C. Labor Law§ 241(6)
Plaintiffs motion for summary judgment on his Labor Law § 241 (6) claim predicated on
a violation oflndustrial Code§ 23-1.7(d) is granted. As held by the Court of Appeals, Labor Law
§ 241(6) imposes a non-delegable duty upon an owner and general contractor to "respond in
damages" if a worker engaged in construction is injured due to inadequate safety and protection,
even if the worker sustains an injury because of another party's negligence (Rizzuto v L.A. Wenger
Contracting Co., 91 NY2d 343, 350 [1998]). A general contractor is not absolved of liability for
lack of notice of a dangerous condition or for lack of an opportunity to cure the dangerous
condition (Gallina v MI'A Capital Construction Company, 193 AD3d 414 [1st Dept 2021 ]).
Industrial Code 23-1. 7( d) provides that "[ e]mployers shall not suffer or permit any
employee to use a floor. .. which is in a slippery condition. Ice, snow, water, grease and any other
foreign substance which may cause slippery footing shall be removed ... ". Here, there is no dispute
that Plaintiff slipped and fell on ice on the stairs in violation of Industrial Code 23-1. 7( d) (see also
Talk v 11 West 42 Realty Investors, LLC, 201 AD3d 491 [1st Dept 2022]; Potenza v City of New
York, 189 AD3d 705 [1st Dept 2020]).
154353/2022 WARD, MARTIN JOSEPH vs. TIMES SQUARE HOTEL OWNER LLC ET AL Page 3 of 5 Motion No. 001
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In opposition, Defendants fail to raise an issue of fact. As a preliminary matter, that Plaintiff
may be found comparatively negligent is no bar to summary judgment on the issue of liability
under Labor Law§ 241(6) (see Rodriguez v City of New York, 31 NY3d 312 [2018]; see also
Luciano v New York City Haus. Auth., 157 AD3d 617 [1st Dept 2018]). Plaintiff's failure to take
photos of the allegedly icy condition and his failure to report immediately his incident are
insufficient to deny summary judgment where there is no evidence directly contradicting
Plaintiff's testimony he slipped and fell on ice. Defendants' attempt to attack Plaintiff's credibility
is especially insufficient in lieu of the corroborating testimony of non-party Sean Hughes, who
testified he witnessed Plaintiff fall and that the stairwell was icy (NYSCEF Doc. 27 at 15-16).
D. Labor Law § 200
Plaintiff's motion for summary judgment on his Labor Law§ 200 claim is denied. Where
an existing defect or dangerous condition causes an injury, an owner or general contractor may be
liable if they created the condition or had actual or constructive notice of it (Cappabianca v
Skanska USA Bldg. Inc., 99 AD3d 139 [1st Dept 2012]). Viewing the facts in the light most
favorable to the non-movant, the Court finds that Plaintiff has not established that Defendants had
notice of the icy condition (York v Tappan Zee Constructors, LLC, 224 AD3d 527, 528 [1st Dept
2024]; Raffa v City of New York, 100 AD3d 558 [1st Dept 2012]). Defendants' witness testified
that employees would "walk the job site and if there needs salt to be put down, they would put it
down." On this record, and given the large size of the multi-floor Construction Site, the Court finds
Plaintiff has not met his heavy burden of eliminating all issues of fact surrounding notice of the
icy condition.
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Accordingly, it is hereby,
ORDERED that Plaintiff's motion for summary judgment on the issue of liability under
his Labor Law§§ 200, 240(1), and 241(6) claims against Defendants is granted in part and denied
in part; and it is further
ORDERED that Plaintiff's motion for summary judgment against Defendants on the issue
ofliability on his Labor Law§ 241(6) claim predicated on a violation oflndustrial Code 23-1.7(d)
is granted; and it is further
ORDERED that Plaintiff's motion for summary judgment against Defendants on the issue
of liability on his Labor Law§§ 200 and 240(1) claims is denied; and it is further
ORDERED that within ten days of entry, counsel for Plaintiff 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.
2/26/2025 DATE HON. MARY V. ROSADO, 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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