# Carvalho v. Lotus Residence LLC

> New York Supreme Court, Kings County · May 14, 2025 · 2025 NY Slip Op 31764(U)

URL: https://www.frixlaw.com/law-library/cases/11053284

## Case

- **Court:** New York Supreme Court, Kings County
- **Decided:** May 14, 2025
- **Citations:** 2025 NY Slip Op 31764(U)
- **Precedential status:** Unpublished
- **Opinion:** Opinion by Steven Z. Mostofsky
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Carvalho v Lotus Residence LLC
2025 NY Slip Op 31764(U)
May 14, 2025
Supreme Court, Kings County
Docket Number: Index No. 523886/2020
Judge: Steven Z. Mostofsky
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.
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At an IAS Term, Part 9, of the Supreme Court of the
State
of New York, held in and for the Coun ty of Kings,
at the
Courthouse, at 360 Adam s Street, Brooklyn, New York
on
the 14th Day of May, 2025.

PRE S ENT :
HON . STEV EN Z. MOS TOF SKY ,
Justice.
---------------- ------ --- --- ------ --- --- ------ ------ ------ -X
VINI CIUS COU TO CAR VAL HO,

Plaintiff,

-against-
Inde x No.: 523886/2020

LOTUS RES IDEN CE LLC AND
RIVE RSID E DEV ELO PER S USA INC. ,

Defe ndan ts.
------------------------------------- ------ --- ------ --- --- -X

The following e-filed papers read herein:
NYS CEF Doc Nos.:
Notice of Moti on/O rder to Show Cause/ I
Petition/Cross Motion and
Affidavits (Affirmations) Anne xed
Opposing Affid avits (Affirmations)- ----- 72-131
_ _ _ __ 103-121
Affid avits / Affirmations in Reply_ _ _ _ __
Exhibits 126-128
--------------- Var.

Vinicius Cout o Carvalho ("pla intiff ') commenced
an action against defen dants , Lotus
Residences LLC ("Lotus"), and Riverside Developer
s USA Inc., ("Riverside"), alleging that
defen dants violated Labo r Law § 240(1 ), and § 241
(6). I
Defe ndan ts, Lotus and Riverside, cross-move, seeki
ng summary judg ment dismissing
plaintiff's complaint that they violated Labo r Law
§ 240(1), § 241(6), and § 200.

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Statement of Facts
On September 6th, 2019, plaintiff alleges that while emplo
yed by Magellan Concrete
Structures Inc., ("Magellan"), he sustained injuries as a result
of slipping and falling down a
portable wood en ladde r while going from the first floor to
the basement. Lotus was the owner of
the worksite, 3 78 Flushing A venue, Brooklyn, New York,
and the general contractor onsite was
Riverside. Plaintiff was employed by Magellan as a gener
al carpe nter setting up decks and
staircases, as well as working with cement. Plaintiff allege
s that the ladde r was maintained in a
wet and slippery condition due to rain on the day of the
alleged incident. After the alleged
incident, plaintiff was taken to Wood ull Medical Center,
Brooklyn, New York.

Legal Standard
'"[S]ummary judgm ent is a drastic remedy and should not
be granted where there is any
doubt as to the existence of a triable issue"' (Rotuba Extru
ders, Inc v Ceppos, 46 NY2d 223, 231
[1978], quoting Moskowitz v Garlock, 23 AD2d 943 [3rd
Dept 1965]). "[T]he proponent of a
summary judgment motion must make a prima facie show
ing of entitlement to judgment as a
matter of law, tendering sufficient evidence to demonstrat
e the absence of any material issues of
fact" (Alvarez v Prospect Hospital, 68 NY2d 320,3 24 [1986
], citing Winegrad v New York Univ
Med Center, 64 NY2 d 851 [1985]) and "facts must be viewe
d 'in the light most favorable to the
non-moving party "' (Vega v Restani Const Corp, 18 NY3
d 499, 503 [2012]). The court's
function is to determine "material triable issues of fact (or
point to the lack thereof)" (Vega v
Restani Const Corp, 18 NY3 d at 505).

Labor Law § 240(1)
Labor Law§ 240(1), which provides, in pertinent part, as
follows::
"All contractors and owners and their agents ... who contr
act for but do not direct or
control the work, in the erection, demolition, repairing, [or]
altering ... 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, hange
rs, blocks, pulleys, braces,
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irons, ropes, and other devices which shall be so constructed
, placed and operated as to
give proper protection to a person so employed."
I
It is, by now, well established that the duty imposed by
Labo r Law§ 240(1) is non-
delegable and that an owne r or contractor who breaches
that duty may be held liable for damages
regardless of wheth er it has exercised supervision or contr
ol over the work (Ross v Curtis-
Palmer Hydro-Electric Co., 81 NY2d 494, 500 [1993 ]).
The purpose of Labo r Law §240(1) is to
protect construction workers "from the pronounced risks
arising from construction work site
elevation differentials" (Runner v New York Stock Exch.,
Inc., 13 NY3 d 599, 603 [2009]). The
worker's injuries have to be a direct consequence of failur
e to adequately protect against risk
arising from physically significant elevation differential
(Id.). In other words, Labor 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 (Ross v Curtis-Palmer
Hydro-Electric Co., 81 NY2d 494,5 01 [1993]). The right
ofrec overy affor ded by the statute
does not extend to other types of harm, even if the harm
in question was caused by an
inadequate, malfunctioning, or defectively designed scaffo
ld, stay, or hoist (Id.).
Whether a device provides proper protection is a question
of fact, except when the device
collapses, moves, falls, or otherwise fails to support the
plaintiff and his or her materials
(Melchor v Singh, 90 AD3 d 866, 868 [2d Dept 2011]). A
fall from a ladder, by itself, is not
sufficient to impose liability unde r Labor Law § 240 (1)
(Id.). There must be evidence that the
subject ladde r was defective or inadequately secured and
that the defect, or the failure to secure
the ladder, was a substantial facto r in causing the plaintiff's
injuries (Id.).
Plain tiff was engaged in one of the enumerated activities
I
unde r Labor Law 240(1 ), as he
was performing construction work while on a ladder. Plain
tiff's accident was gravity related as
he fell from a height from the second or third rung of the
ladder, which was approximately ten
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(10) feet (NYSCEF Doc. No. 96 at p. 2). Plaintiff allege
s that his injuries were sustained as a
direct result of failing to provide adequate protection again
st the risk of falling from the ladder,
which became slippery and dirty from the rain (NYSCEF
Doc. No. 111 at p. 45-46).
In Milligan v Tutor Perini Corp., 191 AD3 d 437 [1st Dept
2021], the court held that
plaintiff established prima facie that plaintiff's work expos
ed him to an elevation-related risk
against which defen dants failed to provide him with prope
r prote ction, as required by Labor Law
§ 240(1 ). Plain tiff testified that he was injured when he
fell while using a wet and slippery
wooden ladde r provided by defen dants for him to move
betwe en the tenth and eleventh floors of
the construction site to perform his work (Id.). Therefore, I
Plain tiff was not required to show that
the ladde r was inherently defec tive (Id.; see McCarthy v
Turner Constr., Inc., 52 AD3 d 333 [1st
Dept 2008]).

Plain tiff established that he was going from the first floor
to the basement using a
wood en ladde r (NYS CEF Doc. No. 111 at p. 44-45), the
ladde r was wet due to the rain (Id.),
and as plaintiff was coming down the ladder, he slipped
and fell from a height of approximately
ten (10) feet (Id. at 46) as a result. While plaintiff was weari
ng a harness, hard hat, and synthetic
gloves (NYSCEF Doc. No. 75 at p. 45), plaintiff's emplo
yer still sent plain tiff out in the rain to
work on a wet ladde r despite the known risk of falling while
working at height of approximately
ten (10) feet in inclement weather. Given the weather condi
tions, plaintiff should not have been
using the ladder. Therefore, plain tiff was exposed to an
elevation-related risk against which
defendants failed to provide him with proper protection.

Defen dants contend that their lack of supervision of plain
tiff at the worksite exculpates it
from the absolute liability for failure to furnish or erect safety
devices that are necessary to
protect workers from sustaining fall-related injuries. Aaron
Goldberger, the project manager for
Riverside, testified that he did not recall any issues with
the job-built ladders, that the decision to

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work in the rain was at Magellan's discretion, and that he
was not responsible for determining
whether Magellan workers should stop work due to the rain
(NYSCEF Doc. No. 74 at p. 4).
Furthermore, defen dants argue that plaintiff's accident and
resulting claims arose from his use
own use of the ladder, that all necessary safety equipment,
including a harness, hardhat, gloves,
and goggles, were available, and plaintiff has failed to establ
ish that he fell from any significant
height. However, the defen dants ' contentions fail, and while
plain tiff has established a prima
facie case, the defen dant has failed to show that a mater
ial issue of fact exists. In Blake v.
Neighborhood Haus. Servs. ofN. Y City, Inc., 1 N.Y.3d 280,2
87 [2003], the Court of Appeals
held:

Liability unde r Labor Law § 240 (1) as "absolute" in the
sense that owners or contractors
not actually involved in construction can be held liable (see
Haimes v New York Tel. Co.,
46 NY2 d 132, 136 [1978]), regardless of whether they exerc
ise supervision or control
over the work (see Ross v Curtis-Palmer Hydro-Elec. Co.,
81 NY2 d 494,5 00
[1993]). Intending the same meaning as absolute liability
in Labor Law§ 240 (1)
contexts, the Court in 1990 introduced the term "strict liabili
ty" (Cannon v Putnam, 76
NY2d 644,6 49 [1990]) and from that point on used the
terms interchangeably.
Furthermore, once a court determines that an owner or contr
actor has failed to furnish or
erect the requisite safety devices, absolute liability results
even where the owne r or contractor
has exercised little or no supervision, control, or direction
over the injury-producing work
(Haimes v. New York Telephone Co., 46 N.Y.2d 132, 137
[1978]. Therefore, defendants, Lotus
and Riverside, have failed to meet their prima facie burde
n under Labor Law § 240 (1) that their
lack of supervision of plaintiff at the work site exculpates
them from the absolute liability for
failing to provide safety devices.

Plaintiff has therefore met its prima facie burden under 240(1
), as the papers before the
I
court do not indicate that plaintiff was provided with an
appropriate ladder, safety netting, or any
other device that would have prevented him from falling
by the defendants. Therefore, the court
grants plaintiff's motion seeking summary judgment (Mot.
Seq. 4) on the issue of liability under
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Labor Law § 240(1), and defen dants ' motion for summary
judge ment (Mot Seq.3) under Labor
Law § 240(1) is denied.

Labor Law § 241(6)
Labor Law§ 241(6) "imposes a [non-delegable] duty ofrea
sonab le care upon owners and
contractors to provide reasonable and adequate protection
and safety to persons employed in, or
lawfully frequenting, all areas in which construction, excav
ation, or demolition work is being
perfonned" (Song v. CA Plaza, LLC, 208 AD3d 760, 761
[2d Dept 2022] [internal quotation
marks omitted]). "To establish liability, a plaintiff must demo
nstrate that his injuries were
proximately caused by a violation of an applicable Indus I
trial Code provision" (Graziano v.
Source Builders & Consultants, LLC, 175 AD3 d 1253,
1258 [2d Dept 2019], quoting Arag ona v.
State ofNew York, 147 AD3d 808, 809 [2d Dept 2018]
).
A party must breach a "specific, positive command" rather
than a "reiteration of
common-law standards" (Ross v Curtis-Palmer Hydro-Elec
. Co., 81 NY2 d 494, 502 [1993]).
Ross distinguished betwe en Code provisions "mandatin
g compliance with concrete
specifications and those that establish general safety stand
ards" (Id. at 505).
In their motion to dismiss, defendants, Lotus and Riverside,
have made a prima facie
showing that the following industrial codes were not violat
ed:
Industrial Code § 23-1.5: References "General responsibil
ity of employers." Defendants
have established that Industrial Code § 23-1.5 cannot be
a basis for liability, as the standard of
liability unde r§ 241(6) requires that a plaintiff must demo
nstrat e that his or her injuries were
proximately caused by a violation of a New York State Indus I
trial Code provision that is
applicable given the circumstances of the accident and sets
forth a concrete standard of conduct
rather than a mere reiteration of common-law principles
(Ross v Curti s-Pal mer Hydro-Elec. Co.,
81 NY2d 494, 501-502 [1993]). Furthermore, Industrial
Codes 23-1.2, 23-1.3, and 23-1 .5-ar e

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too general to support a Labor Law § 241 (6) claim
(Huether v New York Times Bldg., LLC, 24
Misc 3d 634, 648 [Sup Ct 2009]). The court notes that I
plaintiff did not raise this section in their
papers.

Industrial Code § 23-1.7(e): References "Tripping and
other hazards." Defendants have
established that this section is inapplicable, as plaintiff
slipped while descending a wet ladder.
Additionally, defendants have established that the alleg
ed incident did not result from the
accumulation of dirt and debris or from any other obstr
uctions or conditions which could cause
tripping, as plain tiff slipped while descending a wet
ladde r.
Industrial Code § 23-1.11: References "Lumber and
nail fastenings." Defendants have
established that this section is inapplicable as there is
no testimony suggesting any defect in the
wood, lumbar, or nails used for the ladder. The court
notes that plaintiff did not raise this section
in their papers.

Industrial Cod e§ 23-1.15: References "Safe ty railin
gs." Defendants have established
that this section is inapplicable as safety railings were
not in use for plaintiff's work. The ladde r
that plaintiff was using was built specifically by his
employers, and plaintiff did not testify to
using any safety railings for the work being performed I
. The court notes that plaintiff did not raise
this section in their papers.

Industrial Code § 23-1.16: References "Safety belts,
harnesses, tail lines, and lifelines",
but "does not specify when such safety devices are requi
red" (Thompson v Sithe/lndep., LLC,
107 AD3 d 1385, 1388 [4th Dept 2013]). Plaintiff testif
ied that he was wearing his harness, a
hard hat, and synthetic gloves while descending the
ladde r (NYSCEF Doc. No. 75 at p. 45),
therefore, this section is inapplicable.

Industrial Cod e§ 23-1.21: References "Lad ders and
ladderways," including general
ladde r maintenance and when such ladders should be
used. Plaintiff testified that he did not have

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any difficulty going up and down the ladde r before
the alleged accident and the ladde r had been
in the same position for four days (NYSCEF Doc. No.
75 at p. 46, 49). Additionally, plaintiff did
not testify that there had been any defects regarding
the ladde r he used. Furthermore, while the
footings might have been on a slippery surface becau
se of the rain, the proximate cause of the
accident was due to the plaintiff slipping off of a wet
ladder. Therefore, this section is
inapplicable.

Industrial Cod e§ 23-1.30: References "Illumination."
Defendants have established that
the alleged accident occurred in the afternoon between
3:30 and 4:30 P.M. (NYSCEF Doc. No.
75 at p. 43), and there is no testimony of poor illuminatio I
n. The court notes that plaintiff did not
raise this section in their papers.

Industrial Code § 23-2.1: References "Maintenance
and housekeeping." The accident did
not involve the obstruction of a "passageway, walkway,
stairway or other thoroughfare" by a
material pile and, therefore, 23-2 .l(a) (l) is not appli
cable (Ginter v Flushing Terrace, LLC, 121
AD3 d 840, 844 [2d Dept 2014]). 23-2 .l(a)( 2) provi
des, in relevant part, that "material and
equipment shall not be placed or stored so close to any
edge of a floor, platform or scaffold as to
endanger any person beneath such edge." Industrial
Code 23-2.l(a)(2) is inapplicable because
plaintiff was not struck by an object that fell from store
d material on the floor above him.
Plaintiff claims he was struck by an item he had just
passed up, not which was stored at the edge
of a floor (See Mahoney v Madeira Assoc., 32 AD3 d
1303, 1305 [4th Dept 2006]). Lastly, 23-
2 .1 (b) is inapplicable because the disposal of debris
was not involved in the instant matter.
Industrial Code § 23-2.2: References "Concrete work
." The defendants have established
that this section is inapplicable, because plaintiff does
not claim he was injured because a form,
shore, or re-shore was improperly "braced or tied toget
her to maintain position or shape."

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Plaintiff was injured due to falling off of a ladder. The court
notes that plain tiff did not raise this
section in their papers.
I
Industrial Code 23-2.7: References "Stairway requiremen
ts during the construction of
buildings." Specifically, 23-2.7(e), requires protective railing
s on stairways. The defendants have
established plaintiff's alleged accident occurred on a ladde
r, not a stairway.
Industrial Code § 23-3.3: References "Demolition by hand.
" The defen dants have
established that this section is inapplicable as the building
was not being demolished. The court
notes that plaintiff did not raise this section in their paper
s.
OSH A Regulations: Defendants have established that OSH
A Regulations are
inapplicable, as OSH A Regulations do not provide a basis
of liability under Labor Law 241(6)
(Greenwood v Shearson, Lehm an & Hutton, 238 AD2d
311, 313 [2d Dept 1997]). The court
notes that plaintiff did not raise this section in their paper
s.
Plaintiff has made a prima facie showing that the defend
ants, Lotus and Riverside,
violated the following New York Industrial Code Rule:

Industrial Code § 23-1.7: References "Protection from gener
al hazards." More
specifically, § 23-l. 7(d) "Slipping hazards" states:

"Employers shall not suffer or permit any employee to use
a floor, passageway, walkway,
scaffold, platform or other elevated working surface which
is in a slippery condition. Ice,
snow, water, grease, and any other foreign substance which
may cause slippery footing
shall be removed, sanded, or covered to provide safe footin
g."
Plaintiff has established that he slipped off the wet ladde
r because it was raining (NYSCEF Doc.
No. 91 at p. 45-46), the rain began before the incident and I
workers were told to continue working
unless the rain got worse (NYS CEF Doc. No. 98 at p. 3).

Therefore, defen dants ' motion seeking summary judgm ent
(Mot. Seq. 3) on Plaintiff's
Labor Law§ 241(6) is denied except that the court holds
that defen dant did not violate the

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following Indus trial Code secti ons:§ 23-1.5; § 23-1.
7(e); § 23-1.11; § 23-1.15; § 23-1.16; § 23-
1.21; § 23-1.30; § 23-2.1; § 23-2.2; § 23-2.7; § 23-3.
3; and OSH A Regulations. Plain tiff's
motion seeking summary judg ment on the issue of
liability unde r Labo r Law § 241(6) (Mot. Seq.
4) is granted to Indus trial Code secti on§ 23-1.7(d).

Labor Law § 200
"'Lab or Law § 200 is a codification of the common-la
w duty imposed on owners,
contractors and their agents to prov ide workers with
a safe place to work "' (Mondragon-Moreno
v Sporn, 189 AD3 d 1574, 1576 [2d Dept 2020], quoti
ng Doto v Astoria Energy 11, LLC, 129
AD3 d 660, 663 [2d Dept 2015]). '"Cas es involving
Labo r Law § 200 fall into two broad
categories, namely, those where workers are injure
d as a result of dangerous or defec tive
premises conditions at a work site and those involving
the manner in which the work is
perfo nned "' (Southerton v City of New York, 203 AD3
d 977, 979-98 [2d Dept 2022], quoting
Torres v City of New York, 127 AD3 d 1163, 1165 [2d
Dept 2015]).
Where plaintiffs allege that their injuries result from
the means or meth ods by which
work is perfo rmed , "to be held liable unde r Labo r
Law § 200, 'a defen dant must have the
authority to exercise supervision and control over the I
work "' (Narvarra v Hannon, 197 AD3 d
474, 476 [2d Dept 2021], quoting Torres v City of
New York, 127 AD3 d at 1165). "Alth ough
property owners often have a general authority to overs
ee the progress of the work, mere general
supervisory authority at a worksite for the purpose
of overseeing the progress of the work and
inspecting the work prod uct is insufficient to impo
se liability unde r Labo r Law § 200" (Medina-
Arana v Henry Street Property Holdings, LLC , 186
AD3 d 1666, 1668 [2d Dept 2020], quoting
Ortega v Puccia, 57 AD3 d 54, 62 [2d Dept 2008])).
Wher e a plaintiff's injuries stem not from
the manner in whic h the work was being performed
, but, rather, from a dangerous condition on
the premises, an owne r may be held liable in comm
on-law negligence and unde r Labo r Law §

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200 if it had contr ol over the work site and eithe r
creat ed the dang erous cond ition that cause d the
accid ent or had actua l or const ructi ve notic e of the I
dang erous cond ition that cause d the accid ent
(Azad v 270 5th Realty Corp., 46 AD3 d 728, 730 [2d
Dept 2007]).
Defe ndan ts have made a prim a facie show ing of
entitl emen t for summ ary judgm ent on
their Labo r Law § 200 claim, and plain tiff does not
oppo se the relief. Here , defen dants , Lotu s
and Rive rside established entitl emen t to summ ary
judgm ent becau se Aaro n Gold berge r, the
project mana ger on beha lf of Rive rside , did not have
actual or const ructiv e notic e of the
dang erous cond ition that cause d the accident. Mr.
Gold berge r testif ied that he did not hear abou t
the accid ent on the day of the accid ent but withi n I
a mont h of testif ying at the depo sition
(NYS CEF Doc. No. 76 at p. 19). Addi tiona lly, Mr.
Gold berge r testif ied that he hims elf had
walk ed on that ladde r and neve r recalled any probl
em with the job-b uilt ladde rs (Id. at 28). Lotu s
and Rive rside neith er contr olled the mann er or meth
od in whic h plain tiff work ed. Mr.
Gold berge r testif ied that it was Mage llan's decis ion
in controlling their mean s and meth ods of
work to decid e whet her to work if it rained or not
(Id. at 28-30). The c
Therefore, the court grant s the defen dants motio n
for summ ary judg ment (Mot. Seq. 3)
dismissing the Labo r Law § 200 claim.

Conclusion
Plain tiff's moti on seeki ng summary judg ment on
the issue of liability unde r Labo r Law §
240(1) (Mot. Seq. 4) against the defen dants ' is grant
ed. Plain tiff's motio n seeki ng summary
judg ment on the issue of liability unde r Labo r Law
§ 241(6 ) (Mot. Seq. 4) is grant ed to Indus trial
Code secti on§ 23-1. 7(d).
I
Defe ndan ts' moti on seeki ng summ ary judg ment
(Mot. Seq. 3) on Plain tiff's Labo r Law §
241(6) is denie d excep t that the court holds that defen
dant did not viola te the follo wing Indus trial
Code secti ons:§ 23-1.5; § 23-1.7(e); § 23-1. 11; §
23-1.15; § 23-1. 16; § 23-1. 21; § 23-1. 30; § 23-

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2.1; § 23-2.2; § 23-2.7; § 23-3.3; and OSHA Regulations. Defendants' motion seeking summary

judgment dismissing plaintiff's Labor Law§ 200 claim is granted (Mot. Seq. 3).

Any other claims not specifically addressed in this decision are denied.

This constitutes the decision and order of the Court.

ENT~ --

J.S.C

Hon. Steven z. Mostofsky
Justice, Supreme Court

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11053284. Public record. Not legal advice.