Yaucan v. Times Sq. Hotel Owner, LLC

2025 NY Slip Op 31534(U)

• Court: New York Supreme Court, New York County
• Decided: April 29, 2025
• Docket: Index No. 156271/2020
• Status: Unpublished

Opinion

Yaucan v Times Sq. Hotel Owner, LLC 2025 NY Slip Op 31534(U) April 29, 2025 Supreme Court, New York County Docket Number: Index No. 156271/2020 Judge: Arlene P. Bluth 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. 156271/2020 NYSCEF DOC. NO. 82 RECEIVED NYSCEF: 04/29/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ARLENE P. BLUTH PART 14 Justice ---------------------------------------------------------------------------------X INDEX NO. 156271/2020 FREDY YAUCAN, MOTION DATE N/A Plaintiff, MOTION SEQ. NO. 003 -v- TIMES SQUARE HOTEL OWNER, LLC,TIMES SQUARE HOTEL LP, TIMES SQUARE HOTEL REALTY DECISION + ORDER ON CORPORATION, PAVARINI MCGOVERN, LLC,SAFWAY ATLANTIC, LLC MOTION

Defendants. ---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 003) 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81 were read on this motion to/for JUDGMENT - SUMMARY .

Defendants’ motion for summary judgment is granted in part and denied in part.

Background

In this Labor Law action, plaintiff contends that he tripped and fell over a metal plank

located on a ramp. He was working for non-party Breeze Demolition Corp. (“Breeze”) at a

construction site in Manhattan in February 2020 when the accident occurred. Plaintiff testified

that he had a variety of tasks at the site, including acting as a fire watch, cleaning and removing

debris (NYSCEF Doc. No. 65 at 61). On the day of his accident, plaintiff walked up a ramp to

access a hoist in order to get to the floor he was working on that day (id. at 78). Plaintiff insisted

that the ramp was actually level with the hoist and that it was wet (id. at 79). After working for a

few hours, plaintiff stopped to take a lunch break (id.). Plaintiff testified that “We were waiting

for the hoist to go to the 7th floor. When we get out from the hoist, I was ---we were walking

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through the ramp, I was the last one. I trip, and half of my body ended up up [sic] the ramp, and

the other half on the floor with my hand stretched (id. at 83).

When asked what he tripped over, plaintiff observed that “When I looked back, I saw

there was some metal there” (id. at 89). “It was a metal plank, plank, it was 2.5 feet wide and 4

feet long. It was on top of the ramp” (id. at 90). “From the floor to the roof, there was like two

inches of height, and that is where they put that metal” (id.). The ramp itself was made of wood

(id.).

Defendants move for summary judgment on plaintiff’s causes of action based on Labor

Law §§ 241(6) and 200. They contend that the metal plank on which plaintiff tripped was

purposefully installed there to allow material the be rolled up and down the hoist ramp.

Defendants contend that the metal was placed over a two-inch gap between the end of the ramp

and the surface of the 7th floor, which renders it integral to the work done at the job site. They

detail how each of the Industrial Code sections cited by plaintiff in support of his Labor Law §

241(6) claim are inapplicable and that because they did not supervise plaintiff, his Labor Law §

200 claim should be dismissed.

In opposition, plaintiff contends that defendant Pavarini McGovern, LLC (“Pavarini”)

was the general contractor on the site and that this entity was responsible for overseeing the

means and methods of work done at the project. He claims that Pavarini was responsible for

supervising the demolition work done by plaintiff’s employer Breeze and that Pavarini had the

authority to stop unsafe work practices.

Plaintiff emphasizes that the ramp was a hazard and was not integral to plaintiff’s use of

the ramp to travel between floors. He questions why a ramp was not built without a gap that

required the installation of such a metal plank.

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Labor Law § 241(6)

“The duty to comply with the Commissioner’s safety rules, which are set out in the

Industrial Code (12 NYCRR), is nondelegable. In order to support a claim under section 241(6) .

. . the particular provision relied upon by a plaintiff must mandate compliance with concrete

specifications and not simply declare general safety standards or reiterate common-law

principles” (Misicki v Caradonna, 12 NY3d 511, 515, 882 NYS2d 375 [2009]). “The regulation

must also be applicable to the facts and be the proximate cause of the plaintiff’s injury” (Buckley

v Columbia Grammar and Preparatory, 44 AD3d 263, 271, 841 NYS2d 249 [1st Dept 2007]).

“Section 241(6) subjects owners and contractors to liability for failing to adhere to

required safety standards whether or not they themselves are negligent. Supervision of the work,

control of the worksite, or actual or constructive notice of a violation of the Industrial Code are

not necessary to impose vicarious liability against owners and general contractors, so long as

some actor in the construction chain was negligent” (Leonard v City of New York, 216 AD3d 51,

55-56, 188 NYS3d 471 [1st Dept 2023]).

Defendants move for summary judgment on this cause of action and highlight that

plaintiff identified the following Industrial Code sections in his bill of particulars: 23-1.5, 23-

1.7(b), (d), (e) and (f), 23-1.30, 23-1.32, 23-1.33, 23-2.1 and 23-5.1(h).

Plaintiff’s opposition focuses only on 23-1.7(e)(1) and (2). Therefore, the motion is

granted with respect to the remaining Industrial Code sections cited in his bill of particulars.

The two Industrial Code sections at issue provide that:

“(e) Tripping and other hazards.

(1) Passageways. All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping. Sharp projections which could cut or puncture any person shall be removed or covered.

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(2) Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed.”

Defendants contend that section (1) is inapplicable because the metal plank was an

integral part of the passageway. Where an obstruction is “an integral part of the construction,” a

Labor Law plaintiff cannot seek recovery under these Industrial Code sections (O'Sullivan v IDI

Const. Co., Inc., 7 NY3d 805, 806, 822 NYS2d 745 [2006]). The Appellate Division, First

Department has expressly held that the “integral-to-the work” defense applies to Industrial Code

sections 23-1.7(e)(1) and (2) (Krzyzanowski v City of New York, 179 AD3d 479, 480, 118

NYS3d 10 [1st Dept 2020]).

However, the Court of Appeals recently held that “The doctrine thus recognizes that

certain work assignments are, by their nature, dangerous but still permissible, and the particular

commands of the Industrial Code may not apply if they would make it impossible to conduct the

work. Thus, in Salazar it was inherent to the job of filling a trench that the plaintiff work near an

unfilled opening, an obvious falling hazard. The doctrine does not, as the Appellate Division

majority mistakenly concluded, absolve a defendant of liability for the use of an avoidable

dangerous condition or for failure to mitigate the danger, including as specifically provided by

the Industrial Code, if preventive measures would not make it impossible to complete the work”

(Bazdaric v Almah Partners LLC, 41 NY3d 310, 321 [2024]).

Under this formulation of the doctrine, the Court finds that defendants did not meet their

burden for summary judgment dismissing 23-1.7(e)(1). In this Court’s view, defendants had to

show that the failure to use the metal plank “would make it impossible to do the work” and that,

therefore, the installation of this plank was integral to the demolition work. At best, the

deposition of the Safway Atlantic, LLC (“Safway”) foreman suggests that the use of the metal

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plank was a common practice (NYSCEF Doc. No. 67 at 16). But nothing in that testimony from

the Safway witness (who was the foreman for the carpenters at the site) compels the conclusion

that the only way to move debris (the work Breeze was doing) was to include a raised metal

plank on the wood ramp.

Defendants did not point to any other witness testimony (or even expert witness

contentions) in support of their claim that the use of the metal plank was integral to the work in

that it was the only way to safely construct the ramp at this job site. Therefore, the Court denies

this branch of defendants’ motion.

However, the Court severs and dismisses plaintiff’s claim premised on 23-1.7(e)(2) as the

metal plank does not constitute “dirt or debris,” “scattered tools and materials,” or a “sharp

projection.” It is therefore inapplicable to the accident as described by plaintiff.

Labor Law § 200

Labor Law § 200 “codifies landowners’ and general contractors’ common-law duty to

maintain a safe workplace” (Ross v Curtis-Palmer Hydro-Electric Co., 81 NY3d 494, 505, 601

NYS2d 49 [1993]). “[R]ecovery against the owner or general contractor cannot be had unless it

is shown that the party to be charged exercised some supervisory control over the operation . . .

[A]n owner or general contractor should not be held responsible for the negligent acts of others

over whom the owner or general contractor had no direction or control” (id. [internal quotations

and citation omitted]).

“Claims for personal injury under this statute and the common law fall under two broad

categories: those arising from an alleged defect or dangerous condition existing on the premises

and those arising from the manner in which the work was performed” (Cappabianca v Skanska

USA Bldg. Inc., 99 AD3d 139, 143-44, 950 NYS2d 35 [1st Dept 2012]). “Where an existing

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defect or dangerous condition caused the injury, liability attaches if the owner or general

contractor created the condition or had actual or constructive notice of it” (id. at 144).

Defendants contend that this accident involves the means and methods of the work and

that plaintiff admitted that he only took direction from Breeze supervisors. They insist they

exercised no supervision and control over plaintiff’s work. Defendants also argue that even if

this could be described as a dangerous condition case, they had no notice as the metal plate was

purposefully installed by plaintiff’s employer Breeze.

The Court grants this branch of defendants’ motion as plaintiff failed to raise a material

issue of fact in opposition. Plaintiff claims that there is an issue of fact concerning constructive

notice but appears to cite to a deposition transcript from a completely separate case (NYSCEF

Doc. No. 78, ¶ 15 [“Mr. Avellini, an officer of Kings, knew Kings, as owner, hired Precast to

perform the concrete repair of the walls, knew the beams were lying parallel to the walls where

they would obstruct the cement work, knew no one should walk on the beams, received a direct

complaint, actual notice, from Rodriguez, and had the authority to stop unsafe work. See,

Avellino Tr. 7, 9-10, 16, and 19, Exhibit G, NYSCEF# 31”]).

Plaintiff then asserts that Pavarini had the obligation to inspect the work but does not cite

to any deposition testimony concerning this practice. Instead, he points to what seems to be

language from a contract between the owner and Pavarini without including any specific citation,

such as a NYSCEF Document Number, for this language (id. ¶ 16). As plaintiff did not make

any other arguments with respect to the facts of this case for his Labor Law § 200 claim, the

Court is compelled to grant this branch of defendants’ motion.

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Summary

The key question on this motion is whether the use of the metal plank was integral to the

work being performed by Breeze, plaintiff’s employer. Under the Court of Appeals’ decision in

Bazdaric, defendants had to show that, essentially, the use of the metal plank was required

because there is no other way to construct the ramp. That the metal plank may be a common

practice is not sufficient. The Court recognizes that defendants claimed in reply that Bazdaric is

inapplicable because it only relates to slipping hazards (NYSCEF Doc. No. 81, ¶ 7). However,

the First Department has applied the language set forth in Bazdaric to Labor Law cases involving

the Industrial Code sections in dispute in this action (see Lourenco v City of New York, 228

AD3d 577, 580, 215 NYS3d 6 [1st Dept 2024] [discussing the integral to the work defense in the

context of 23-1.7(e)(1) and (2)]).

The Court denies any claims by plaintiff for affirmative relief contained in his

“Wherefore” paragraph as he did not properly cross-move for such relief.

Accordingly, it is hereby

ORDERED that defendants’ motion for summary judgment is granted in all respects

except to the extent that they sought dismissal of plaintiff’s Labor Law claim premised on 23-

1.7(e)(1).

4/29/2025 $SIG$ DATE ARLENE P. BLUTH, 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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