Geloso v. Port Auth. of N.Y. & N.J.

Geloso v Port Auth. of N.Y. & N.J.

2025 NY Slip Op 30560(U)

February 19, 2025

Supreme Court, New York County

Docket Number: Index No. 160166/2020

Judge: Richard Tsai

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. 160166/2020

NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 02/19/2025

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. RICHARD TSAI PART 21

Justice

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MARIO GELOSO and DAWN GELOSO,

MOTION DATE 07/19/2024

Plaintiffs,

MOTION SEQ. NO. 002

-v-

THE PORT AUTHORITY OF NEW YORK AND NEW

JERSEY, EMPIRE STATE DEVELOPMENT

CORPORATION, A/K/A EMPIRE STATE DEVELOPMENT,

MOYNIHAN STATION DEVELOPMENT CORPORATION,

LONG ISLAND RAILROAD D/B/A MTA LIRR, THE CITY OF

DECISION + ORDER ON

NEW YORK, THE NEW YORK CITY TRANSIT

AUTHORITY, METROPOLITAN TRANSPORTATION MOTION

AUTHORITY, NATIONAL RAILROAD PASSENGER

CORPORATION, D/B/A AMTRAK and MOYNIHAN TRAIN

HALL DEVELOPER LLC,

Defendants.

---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document numbers (Motion 002) 42, 55, 68-90, 92-

100

were read on this motion to/for JUDGMENT - SUMMARY .

In this action alleging violations of Labor Law § 240(1), plaintiff Mario Geloso

alleges that, on January 30, 2020, while performing construction work at the Moynihan

Train Hall Project, a metal tripod weighing between 80 and 150 pounds fell about five to

five and a half feet and struck him on the head.

Plaintiff and his wife, plaintiff Dawn Geloso, now move for summary judgment in

their favor on the issue of liability against defendants Empire State Development

Corporation A/K/A Empire State Development (ESD), Moynihan Station Development

Corporation (MSDC), and Moynihan Train Hall Developer LLC (MTHD).1 Defendants

oppose the motion.

1

The action was discontinued as against defendants The Port Authority of New York and New

Jersey, Long Island Railroad D/B/A MTA LIRR, The City of New York, The New York City

Transit Authority, Metropolitan Transportation Authority, and National Railroad Passenger

Corporation D/B/A Amtrak (see NYSCEF Doc. No. 69 [Plaintiffs’ Affirmation in Support] ¶ 2];

NYSCEF Doc. No. 42 [Stipulation of Discontinuance]; NYSCEF Doc. No. 55 [Stipulation of

Partial Discontinuance]).

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BACKGROUND

It is undisputed that, on the day of the accident, ESD was the owner of the

Moynihan Train Hall Project, located at 421 8th Avenue, New York, New York, adjacent

to 33rd Street between 8th and 9th Avenues (see NYSCEF Doc. No. 84 [Wynn Deposition

Transcript], at 16, lines 4-7]). MSDC, a subsidiary of ESD, served as the “eyes and

ears” of ESD at the construction project (Wynn Dep. Tr. at 28, lines 3-8).

It is also undisputed that, pursuant to a Development Agreement, dated June 15,

2017 (NYSCEF Doc. No. 85), ESD hired MTHD as the developer responsible for

developing and constructing Moynihan Train Hall. Pursuant to a Design-Build

Agreement, dated June 15, 2017, MTHD in turn retained non-party Skanska Moynihan

Train Hall Builders as the general contractor to carry out construction services for the

project (NYSCEF Doc. No. 86; NYSCEF Doc. No. 87 [Bellman Deposition Transcript], at

17, lines 2-3; at 36, line 14 through 37, line 6). Plaintiff was employed as a laborer by

non-party Skanska Construction (Skanska) (see NYSCEF Doc. No. 73 [Plaintiff’s

Verified Bill of Particulars] ¶¶ 32-33).

Plaintiff’s 50-H Testimony (NYSCEF Doc. No. 76)

Plaintiff testified at the 50-h hearing that he was employed by Skanska as a hand

laborer at the Moynihan Train Hall Project (NYSCEF Doc. No. 76 [Plaintiff’s 50-h

Hearing Transcript], at 15, lines 19-22; at 16, line 18 through 17, line 10). The accident

occurred outside the Moynihan Post Office building on 33rd Street (id. at 26, line 25

through 27, line 6). On the day of the accident, plaintiff’s supervisor, Chuck, assigned

plaintiff to perform patching, or filling holes with cement (id. at 29, lines 7-9; at 32, lines

4-7). When plaintiff asked what he needed for the job, his supervisor said that he only

needed a harness, because someone had already prepared everything else in place

there (id. at 32, lines 16-22).

To perform the patching job, plaintiff descended a ladder into a rectangular hole

which plaintiff described as 45-50 feet deep, and 8½ feet long (id. at 35, lines 2-24).

Positioned outside the hole was a metal tripod, a device used to pull people up from the

hole (id. at 42, line 23 through 43, line 16; at 45, lines 3-9). Plaintiff was wearing a

helmet and a harness with a cable hooked up to the tripod (id. at 50, lines 17-23; at 51,

lines 16-18; at 57, lines 21-23). Plaintiff did not know who put the tripod there or whether

the tripod was attached to anything to prevent the tripod from falling (id. at 44, lines 19-

22; at 45, lines 10-12). While plaintiff was descending the ladder, at about five feet down

into the hole, with his head still outside the hole and the rest of his body inside the hole,

the tripod hit his head, neck, and back (id. at 47, lines 6-17; at 48, lines 2-6). Plaintiff slid

about two feet and then grabbed onto the ladder to prevent himself from falling (id. at

48, line 10 through 49, line 9).

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Plaintiff’s Deposition Testimony (NYSCEF Doc. No. 97)

Plaintiff testified at his deposition that he was employed by Skanska as a laborer

at the construction project (NYSCEF Doc. No. 97 [Plaintiff’s Deposition Transcript] at

25, line 15 through 26, line 4; at 28, lines 2-5). He testified that on the day of the

accident, his supervisor from Skanska named “Chuck” and his foreman named “Vinny

Terrezza” gave him his assignment and said that he needed a harness for the task (id.

at 30, line 25 through 31, line 9; at 57, line 20 through 58, line 3). Plaintiff’s task was to

close holes with cement inside of a subway ventilation shaft, located outside of the

Moynihan Post Office building (id. at 35, line 13 through 36, line 4; at 41, line 22 through

42, line 3).

According to plaintiff, he used a ladder to access the ventilation shaft, which was

approximately 30 to 40 feet deep (id. at 44, lines 14-25; at 45, lines 6-15). A tripod was

set over the ventilation shaft to assist plaintiff with getting into and out of the shaft (id. at

49, lines 15-21). The metal tripod, which consisted of three legs, stood about seven to

seven and a half feet tall and weighed between 80 and 150 pounds (id. at 50, lines 2-5;

at 69, lines 9-15). Plaintiff was wearing a hard hat and a harness with a metal cable

attached to the tripod (id. at 51, line 25 through 52, line 9; at 53, line 25 through 54, line

3). He did not know who put the tripod in place or whether the tripod was secured in any

way to the ground (id. at 50, line 17 through 51, line 3). He did not touch the tripod or

check to see if it was secure before descending the shaft (id. at 51, lines 4-7). He had

used a tripod a few times before the date of the accident, but he did not specialize in

securing tripod equipment (id. at 51, lines 11-24).

Plaintiff testified that as he was descending the ladder inside the shaft, at about

five or six steps down the ladder and with his head still above the shaft, the accident

occurred (id. at 54, lines 12-16). “I felt the cable locked [sic] and I felt a pulling” (id. at

68, lines 17-18). Immediately after the cable locked, “[t]he tripod fell on my head. I

slipped two or three rungs and I gripped onto the ladder” (id. at 68, lines 19-23). When

asked what part of the tripod fell onto his head, plaintiff responded, “The end part. The

point of it [the tripod] hit my head and ended up on my shoulders as well” (id. at 73, lines

8-14). Plaintiff did not fall off the ladder, but gripped onto the ladder, preventing himself

from falling (id. at 56, line 22 through 57, line 2; at 74, lines 2-5). At the deposition,

plaintiff reviewed several photographs and confirmed that they depicted the accident

location and a tripod similar to the one he used on the day of the accident (id. at at 36,

lines 17-24; at 38, line 14 through 39, line 5; at 58, line 22 through 59, line 17; at 63,

lines 2-12).2

2

The photographs that were marked as Defendants’ Exhibits A-F at plaintiff’s deposition and that were shown to

plaintiff were appended to the end of the transcript of plaintiff’s deposition on July 27, 2022 (see NYSCEF Doc.

Nos. 77 and 97).

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Deposition Testimony of Kelly Davis (Senior Resident Engineer at

The Port Authority of New York and New Jersey) (NYSCEF Doc. No.

83)

Kelly Davis testified that ESD hired her employer, The Port Authority of New York

and New Jersey, for construction management of engineering services at the Moynihan

Train Hall Project (NYSCEF Doc. No. 83 [Davis Deposition Transcript], at 8, lines 10-13;

at 13, lines 14-25; at 14, lines 8-10). At the deposition, she reviewed several

photographs and confirmed that they depicted the accident location and a tripod (id. at

46, line 24 through 47, line 7; at 47, line 23 through 48, line 2; at 48, line 20 through 49,

line 14; at 50, lines 2-18; at 52, lines 4-9; at 59, lines 3-20; at 60, lines 7-12). She did

not see tripods in use at this particular project during the times when she was walking

around (id. at 53, lines 11-15). When shown a photograph that was previously marked

as Defendant’s Exhibit C, Davis testified that, above an access exhaust vent, she saw a

piece of equipment that looked like a tripod—a device for lowering people or equipment

into a ventilation shaft and a worker could attach himself or herself to the tripod as a

form of fall protection while working in the shaft (id. at 50, lines 3-6; at 52, lines 4-9; at

53, lines 5-10).

Deposition Testimony of Simon Wynn (Senior Counsel at ESD)

(NYSCEF Doc. No. 84)

Simon Wynn testified that ESD, also known as the New York State Urban

Development Corporation, was the owner of the Moynihan Train Hall Project (Wynn

Dep. Tr. at 9, lines 13-21; at 16, lines 4-7). When asked if ESD still currently owns the

Moynihan Train Station, Wynn answered, “Yes” (id. at 18, lines 20-22). Wynn testified

that MSDC, a subsidiary of ESD, was the “eyes and ears” of ESD at the construction

project (id. at 27, lines 8-18; at 28, lines 3-13). MSDC was responsible for financial

matters and providing regular reports on the project to the board of directors of ESD (id.

at 28, lines 3-13).

At the deposition, Wynn reviewed the Development Agreement between ESD

and MTHD and the Design-Build Agreement between MTHD and Skanska Moynihan

Train Hall Builders (id. at 37, lines 19-24; at 38, lines 13-23; at 47, line 13 through 48,

line 10). Wynn confirmed that, pursuant to the Development Agreement, ESD hired

MTHD, an entity comprised of Vornado and Related Companies, as the developer or

“design builder” responsible for the project (id. at 16, lines 24 through 17, line 11; at 21,

lines 2-15; at 38, lines 9-23; at 39, lines 8-13). Wynn confirmed that pursuant to the

Design-Build Agreement, the developer in turn retained a Skanska entity for

construction services (id. at 18, lines 7-13; at 21, line 16 through 22, line 2).

Deposition Testimony of David Bellman (Executive Vice President of

Vornado Realty Trust, a member of MTHD) (NYSCEF Doc. No. 87)

David Bellman testified that MTHD is comprised of two members, Vornado

Realty Trust and Related Companies (Bellman Dep. Tr. at 13, lines 3-21). At the

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deposition, Bellman reviewed the Development Agreement between ESD and MTHD

and the Design-Build Agreement between MTHD and Skanska Moynihan Train Hall

Builders (id. at 30, lines 11-17; at 31, lines 6-10; at 36, line 14 through 37, line 6).

Bellman confirmed that, pursuant to the Development Agreement, MTHD was a single

purpose entity created to oversee the management of the construction project known as

Moynihan Train Hall (id. at 12, lines 6-15; at 31, lines 3-22). Vornado Realty Trust

managed the project on behalf of MTHD (id. at 15, lines 2-7). Bellman testified that, in

his role as the developer overseeing overall developer operations, he had the authority

to stop work if he saw an unsafe work condition at the project and did so on two

occasions for improper fall prevention procedures (id. at 23, lines 6-8; at 24, lines 2-22).

Bellman also confirmed that, pursuant to the Design-Build Agreement, MTHD hired a

Skanska entity as the general contractor for the project (id. at 16, line 13 through 17,

line 3), but “the technical title they had was design builder” (id. at 18, lines 4-12; see

also id. at 36, line 20 through 37, line 6).

The Sworn Witness Statement (NYSCEF Doc. No. 88)

Jaron Bratton, a Skanska co-worker of plaintiff, provided a sworn witness

statement, dated March 21, 2024, in which he stated:

“1) I witnessed the January 30 2020 accident involving Mario Geloso. He

and I were working at the Moynihan Train Hall project for Skanska. . . . He

was struck by a tripod fall arrest device, which collapsed over onto him.

Mr. Geloso was going down a ladder in a subway ventilation shaft. His

body was in the shaft and his head was still above it, at approximately

street level. The tripod was a fall arrest device designed to prevent

workers from falling down the shaft should they slip, trip or fall from the

ladder. . .

2) . . . The tripod involved in the accident was approximately six (6’) to six

and a half (6’5) feet in height. It was made of metal (aluminum) and

weighed approximately one-hundred and fifty (150 lbs.) to two-hundred

(200 Ibs.) pounds. We were working the swing shift. The tripod was

already in position over the shaft when we went to the shaft. It was not

anchored or attached to the ground/surface. I do not know who set it up.

3) Mr. Geloso’s harness was affixed to the cable/extension drop line that is

part of the tripod, for fall protection. As he was descending, the tripod

failed and did not remain upright. It tipped over and the steeple [the central

point at the top of the tripod] struck Mr. Geloso on the head and neck

area. The steeple fell a distance of approximately five (5’) to five and a half

(5.5’) feet before it struck Mr. Geloso”

(NYSCEF Doc. No. 88 [Bratton Affirmation] ¶¶ 1-3).

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DISCUSSION

“On a motion for summary judgment, the moving party must make a prima facie

showing of entitlement to judgment as a matter of law, tendering sufficient evidence to

demonstrate the absence of any material issues of fact” (Trustees of Columbia Univ. in

the City of N.Y. v D'Agostino Supermarkets, Inc., 36 NY3d 69, 73-74 [2020] [internal

quotation marks and citation omitted]; see also CPLR 3212 [b]). “Failure to make such

showing requires denial of the motion, regardless of the sufficiency of the opposing

papers” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). If the moving

party meets its burden, the burden shifts to the non-moving party “to establish the

existence of material issues of fact which require a trial of the action” (Alvarez v

Prospect Hosp., 68 NY2d 320, 324 [1986]). “On a motion for summary judgment, facts

must be viewed ‘in the light most favorable to the non-moving party’” (Vega v Restani

Constr. Corp., 18 NY3d 499, 503 [2012], quoting Ortiz v Varsity Holdings, LLC, 18 NY3d

335, 339 [2011]). “[M]ere conclusions, expressions of hope or unsubstantiated

allegations or assertions are insufficient” to raise an issue of fact (Zuckerman v City of

New York, 49 NY2d 557, 562 [1980]).

Labor Law § 240(1), commonly known as the Scaffold Law, provides as follows:

“All contractors and owners and their agents . . . in the erection,

demolition, repairing, altering, painting, cleaning or pointing of a building or

structure shall furnish or erect, or cause to be furnished or erected for the

performance of such labor, scaffolding, hoists, stays, ladders, slings,

hangers, blocks, pulleys, braces, irons, ropes, and other devices which

shall be so constructed, placed and operated as to give proper protection

to a person so employed.”

Labor Law § 240 (1) “imposes on owners or general contractors and their agents

a nondelegable duty, and absolute liability for injuries proximately caused by the failure

to provide appropriate safety devices to workers who are subject to elevation-related

risks” (Saint v Syracuse Supply Co., 25 NY3d 117, 124 [2015]). As a preliminary matter,

the court notes that there is no dispute that ESD was the owner of the Moynihan Train

Hall Project.3 It is also undisputed that MSDC, an ESD subsidiary that was the “eyes

3

“Courts have held that the term ‘owner’ is not limited to the titleholder of the property where the

accident occurred and encompasses a person ‘who has an interest in the property and who

fulfilled the role of owner by contracting to have work performed for his [or her] benefit’”

(Scaparo v Village of Ilion, 13 NY3d 864, 866 [2009]).

Here, Wynn testified that ESD was both the owner of the Moynihan Train Hall project

and owner of Moynihan Train Station (Wynn Dep. Tr. at 16, lines 4-7; at 18, lines 18-22). To the

extent that ownership of a construction project implies that ESD has a property interest in the

premises where the alleged violations of Labor Law § 240 (1), the court notes that defendants

did not argue that ESD was not an “owner” for the purposes of Labor Law § 240 (1) in

opposition to the motion, which amounts to a concession of its status as “owner” under Labor

Law § 240 (1) (see Flores v Metro. Transportation Auth., 164 AD3d 418, 420 [1st Dept 2018]

[“There is no longer an issue as to whether the City or any of the other defendants are proper

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and ears” of ESD, and that MTHD, the developer hired by ESD, were agents of said

owner for purposes of Labor Law § 240(1) (Guryev v Tomchinsky, 20 NY3d 194, 202

[2012]; Walls v Turner Const. Co., 4 NY3d 861, 864 [2005]). Thus, Labor Law § 240 (1)

applies to ESD, MSDC, and MTHD.

To recover under the statute, the plaintiff must demonstrate a violation of the

statute, and that such violation was a proximate cause of the injuries sustained (Blake v

Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287 [2003] [“liability is contingent

on a statutory violation and proximate cause”]). However, “[w]here a plaintiff’s actions

[are] the sole proximate cause of his injuries, . . . liability under Labor Law § 240(1)

[does] not attach” (Robinson v East Med. Ctr., LP, 6 NY3d 550, 554 [2006] [internal

quotation marks and citation omitted]).

“In order to prevail on summary judgment in a section 240(1) ‘falling object’

case, the injured worker must demonstrate the existence of a hazard contemplated

under the statute ‘and the failure to use, or the inadequacy of a safety device of the kind

enumerated therein’” (Fabrizi v 1095 Ave. of the Ams., L.L.C., 22 NY3d 658, 662 [2014]

[internal quotation marks and citation omitted]). “Essentially, the plaintiff must

demonstrate that at the time the object fell, it was being hoisted or secured or required

securing for the purposes of the undertaking” (id. [internal quotation marks and citations

omitted]). In addition, “[a] plaintiff must show that the object fell . . . because of the

absence or inadequacy of a safety device of the kind enumerated in the statute”

(Narducci v Manhasset Bay Assoc., 96 NY2d 259, 268 [2001] [emphasis in original]).

Plaintiffs argue that the unsecured tripod failed and collapsed, in violation of

Labor Law § 240(1), which therefore caused the 80- to 200-pound tripod to fall five to

five and a half feet and strike plaintiff (see NYSCEF Doc. No. 70 [Plaintiffs’

Memorandum of Law] ¶ 14). Plaintiffs argue that the collapse of a safety device, such

as the tripod, constitutes a prima facie showing of a violation of Labor Law § 240(1) (see

id., ¶ 8). Plaintiffs contend that there are no issues of fact as to whether plaintiff was the

sole proximate cause of the accident (see NYSCEF Doc. No. 99 [Reply Affirmation of

Robert G. Abruzzino, Esq.] ¶¶ 4-5).

In opposition, defendants, relying on plaintiff’s deposition testimony, argue that

Labor Law § 240(1) does not apply because at the time of the accident, the tripod was

not being hoisted or secured and the tripod did not fall from a great height (see

NYSCEF Doc. No. 96 [Affirmation in Opposition of Merle Schrager, Esq.] ¶¶ 3, 23).

Defendants further argue that plaintiff was the sole proximate cause of the accident

because plaintiff, by his own admission, failed to inspect the tripod before using it (id., ¶

24). They contend that there was no issue that the tripod was sufficient because plaintiff

did not fall from the ladder, was easily extricated from the ventilation shaft, and later that

day resumed working in the same shaft using the same equipment without issue (id.).

party defendants under the Labor Law in this case, given defendants' counsel's concession at

oral argument”]).

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Here, plaintiffs have established prima facie entitlement to summary judgment

under section 240(1).

“ʻLabor Law § 240(1) was designed to prevent those types of accidents in which

the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield

the injured worker from harm directly flowing from the application of the force of gravity

to an object or person’” (Runner v New York Stock Exch., Inc., 13 NY3d 599, 604

[2009], quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]). “[T]

he single decisive question is whether plaintiff’s injuries were the direct consequence of

a failure to provide adequate protection against a risk arising from a physically

significant elevation differential” (Runner, 13 NY3d at 603). To determine whether a

height differential is physically significant, the court must consider “the weight of the

object and the amount of force it was capable of generating, even over the course of a

relatively short descent” (id., 605; see also Wilinski v 334 E. 92nd Hous. Dev. Fund

Corp., 18 NY3d 1, 10 [2011]).

Here, plaintiff was exposed to an elevation-related hazard within the meaning of

the statute. Plaintiff testified that the metal tripod, to which he was attached by a

harness, weighed between 80 and 150 pounds and stood seven to seven and a half

feet tall above the ventilation shaft (50-h Hearing Tr., at 50, lines 17-23; at 51, lines 16-

18; Plaintiff’s Dep. Tr., at 50, lines 2-5; at 51, line 25 through 52, line 9; at 69, lines 9-

15). About five feet down the shaft, with his head still outside the shaft, the steeple or

top of the tripod struck plaintiff on the head (50-h Hearing Tr., at 47, lines 6-17; at 48,

lines 2-6; Plaintiff’s Dep. Tr., at 73, lines 8-14).

Contrary to defendants’ contention, the elevation differential of five to five and a

half feet cannot be viewed as de minimis, given the weight of the tripod and the amount

of force that it was capable of generating over its descent (see Runner, 13 NY3d at 603;

see also Wilinski, 18 NY3d 1 at 10 [2011] [finding that given the amount of force that

metal pipes were able to generate, a height differential of four feet cannot be described

as de minimis]; Carranza v Mem'l Hosp. for Cancer & Allied Diseases, 225 AD3d 536,

536 [1st Dept 2024] [finding that plaintiff established a prima facie case under Labor

Law § 240(1) where plaintiff showed he was injured by a 150-pound panel that fell four

feet on his knee]). The harm to plaintiff “was the direct consequence of the application

of the force of gravity to the [tripod]” (Runner, 13 NY3d at 604); that is, that “the risk to

be guarded against is the unchecked or insufficiently checked descent of the object”

(Torres-Quito LLC v 1711 LLC, 227 AD3d 113, 116 [1st Dept 2024] [internal quotation

marks and citation omitted]).

Second, plaintiff’s deposition testimony established that the tripod fell onto his

head, neck, shoulders, and back (50-h Hearing Tr., at 48, lines 2-6; Plaintiff’s Dep. Tr.,

at 73, lines 8-14). The tripod, a safety device used to lower workers to prevent their fall,

was inadequately secured so as to prevent the tripod itself from falling, thus failing to

adequately protect plaintiff (see Ortega v City of New York, 95 AD3d 125, 130 [1st Dept

2012] [internal quotation marks and citation omitted] [“Plaintiffs made out a prima facie

case” where “a device precisely of the sort enumerated by the statute was not placed

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and operated as to provide adequate protection to plaintiff,” because “[device], which

should have been secured to the ground, but was not, failed to protect him”]; see also

Ladd v Thor 680 Madison Ave. LLC, 212 AD3d 107, 112 [1st Dept 2022] [plaintiff was

injured when the hatch door of a hoist slammed onto his head as he stood on a ladder

with his head protruding above the hatch aperture]; Gabriel v The Boldt Group, Inc., 8

AD3d 1058, 1059 [4th Dept 2004]; [plaintiff was struck by a hoisting apparatus when it

collapsed]).

Thus, plaintiffs have demonstrated a violation of the statute and that the violation

proximately caused plaintiff’s injuries.

Defendants failed to establish the existence of an issue of fact warranting denial

of plaintiffs’ motion. Contrary to defendants’ contention, the fact that the tripod was not

being hoisted or secured does exclude this case from the ambit of section 240(1),

because the tripod “‘required securing for the purposes of the undertaking’” (Fabrizi, 22

NY3d 658 at 663 [2014], quoting Outar v City of New York, 5 NY3d 731, 732 [2005]; see

also Quattrocchi v F.J. Sciame Const. Corp., 11 NY3d 757, 758-59 [2008] [“‘falling

object’ liability under Labor Law § 240(1) is not limited to cases in which the falling

object is in the process of being hoisted or secured”]; Torres-Quito, 227 AD3d 113, 120

n 2 [1st Dept 2024] [internal citation omitted] [“Plaintiff is not required to show that the

object was being hoisted or secured when it fell, since that is not a precondition to

liability pursuant to Labor Law § 240(1)”]).

Under the appellate precedent in this judicial department, “secured for the

purposes of the undertaking” has been construed to mean that the falling object must be

secured in such a way so as to not fall onto construction workers below (see McVicker v

Port Auth. of N.Y. & N.J., 195 AD3d 554, 555 [1st Dept 2021] [“no appropriate

safeguard, such as a hoisting device, barrier, or exclusion zone, was utilized];

Rutkowski v New York Convention Ctr. Dev. Corp., 146 AD3d 686, 686 [1st Dept 2017]

[citation omitted] [“The lighting bar was an object that required securing to prevent it

from becoming dislodged or falling during the work”]).

Absent any evidence that the tripod was adequately secured so as to prevent it

from falling onto plaintiff during the work, plaintiff met his prima facie burden of

establishing a violation of Labor Law § 240(1) (see Greenwood v Whitney Museum of

Am. Art, 161 AD3d 425, 425-26 [1st Dept 2018] [affirming partial summary judgment on

the plaintiff’s section 240(1) claim “inasmuch as the record establishes that plaintiff's

injury was the proximate result of the failure to take adequate steps to secure the piece

of scrap metal from falling from the height at which it was being used”]).

Although defendants argue that the tripod was sufficient, they submitted no

evidence that would raise an issue of fact as to whether the tripod was adequately

secured at the time of the accident. Plaintiff’s testimony that he had no previous

problems with the tripod is irrelevant, as a violation of Labor Law § 240(1) does not

require proof that defendants had prior notice of a defect in a safety device. Plaintiff’s

testimony that the tripod functioned without issue later in the day of the accident is

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irrelevant, as liability under section 240(1) does not require plaintiff to show that the

tripod was defective (see Cabrera v 65 Park W. Realty, LLC, 188 AD3d 520, 520 [1st

Dept 2020] [citations omitted] [“(Defendants’) contention that an issue of fact exists as to

whether the ladder was appropriate to perform the work is unavailing. Plaintiff was not

required to show [on the Labor Law § 240(1) claim] that the ladder was defective”]). It is

also irrelevant that, at the time of the accident, plaintiff did not fall from the ladder on

which he was standing, or that he was easily extricated from the ventilation shaft

thereafter, which do not controvert plaintiff’s account that the tripod fell onto plaintiff

because the tripod was inadequately secured.

Defendants’ argument that plaintiff Mario Geloso was the sole proximate cause

of the accident, because he failed to check that the tripod was secure before using it, is

unavailing.

Because plaintiffs have demonstrated a violation of the statute, plaintiff Mario

Geloso cannot be solely responsible for his injury under the statute (see Blake, 1 NY3d

at 290 [“if a statutory violation is a proximate cause of an injury, the plaintiff cannot be

solely to blame for it”]; Cazho v Urban Bldrs. Group, Inc., 205 AD3d 411, 412 [1st Dept

2022]). Any failure on plaintiff's part to ensure that that the tripod was properly set up

“would, at most, constitute comparative negligence, a defense inapplicable to a Labor

Law § 240(1) cause of action” (Concepcion v 333 Seventh LLC, 162 AD3d 493, 494

[1st Dept 2018]).

Accordingly, defendants have failed to raise any triable issue of material fact

warranting denial of plaintiffs’ motion. Thus, plaintiffs are entitled to summary judgment

in their favor as to liability under Labor Law § 240(1) as against defendants ESD,

MSDC, and MTHD.

CONCLUSION

For the foregoing reasons, it is hereby

ORDERED that plaintiffs’ motion for summary judgment against defendants

Empire State Development Corporation A/K/A Empire State Development, Moynihan

Station Development Corporation, and Moynihan Train Hall Developer LLC (Seq. No.

002) is GRANTED, and plaintiffs are granted summary judgment in their favor as to

liability for violation of Labor Law § 240(1) against defendants Empire State

Development Corporation A/K/A Empire State Development, Moynihan Station

Development Corporation, and Moynihan Train Hall Developer LLC.

This constitutes the decision and order of the court.

2/19/2025

DATE RICHARD TSAI, J.S.C.

CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

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