The opinion
Piletto v Partners Vll/535 Fourth Owner LLC
2025 NY Slip Op 31939(U)
June 1, 2025
Supreme Court, New York County
Docket Number: Index No. 150987/2020
Judge: Margaret A. Chan
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
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This opinion is uncorrected and not selected for official
publication.
INDEX NO. 150987/2020
NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 06/02/2025
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON.MARGARETA.CHAN PART 49M
Justice
-------------------------------- --------X INDEX NO. 150987/2020
RICHARD PILETTO,
12/06/2023,
MOTION DATE 02/02/2024
Plaintiff,
- V-
MOTION SEQ. NO. 001 002
PARTNERS Vll/535 FOURTH OWNER LLC,535 4TH
AVENUE DEVELOPER LLC,XYZ PROPERTIES
INC.,DYNATEC CONTRACTING INC.,NAF PAK
DECISION + ORDER ON
PLUMBING & HEATING CORP., and QUALITY FACILITY
SOLUTIONS CORP, MOTION
Defendants.
---------------------------------------------------------------X
PARTNERS Vll/535 FOURTH OWNER LLC, 535 4TH Third-Party
AVENUE DEVELOPER LLC, XYZ PROPERTIES INC., Index No. 595070/2022
DYNATEC CONTRACTING INC.
Third-Party Plaintiffs,
-against-
QUALITY FACILITY SOLUTIONS CORP
Third-Party Defendant.
--------------- --------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 67, 68, 69, 70, 71,
72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83,102,103, 104, 105, 107, 109, 111,113,120, 121,122,123,
124, 125,126,127,129,131, 135, 136
were read on this motion to/for JUDGMENT-SUMMARY
The following e-filed documents, listed by NYSCEF document number (Motion 002) 84, 85, 86, 87, 88,
89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99,100,101,106,108,110,112,114,115,116,117,118,119,
128, 130, 132, 133, 134, 137
were read on this motion to/for JUDGMENT-SUMMARY
Plaintiff, a construction site superintendent, was employed by non ·party
Slate Property Group, a developer. Plaintiff sustained injuries on April 24, 2019,
when he fell down a four-foot high temporary staircase on the construction site. In
his complaint, he alleges causes of action under Labor Law sections 200, 240(1) and
241(6) against owners/developers/partners of the construction site at 535 4th
Avenue in Brooklyn, NY, who are defendants Partners VII/535 Fourth Owner LLC,
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535 4th Avenue Developer LLC, and XYZ Properties, Inc. (collectively, Partners),
the general contractor (GC), Dynatec Contracting Inc. 1 (Dynatec or the GC),
subcontractors Naf Pak Plumbing & Heating Corp (NafPak), and Quality Facility
Solutions Corp (QFS) (NYSCEF # 115 - pltfs atty aff - ,r 12).
In MS 001, the Partners/GC jointly move for summary judgment against Naf
Pak and QFS on their contractual indemnification, breach of contract, common law
indemnification and contribution claims. Naf Pak opposes the motion, and QFS
cross moves for summary judgment dismissing all the crossclaims and third ·party
claims against it.
In MS 002, QFS moves for summary judgment to dismiss the claims and
crossclaims as against it. Plaintiff opposes QFS's motion; the Owners and GC
(together Owner/GC) jointly oppose QFS's motion for summary motion to dismiss all
the claims and crossclaims as against.
As the liability issues are addressed in MS 002, QFS's motion, and MS 001
concerns indemnification issues, MS 002 will be addressed first.
FACTS
Plaintiff was a site superintendent for non·party Slate Property Group
(Slate), which was in a partnership with defendant Dynatec 2 (NYSCEF # 90 · pltfs
depo tr at 15:16-22; 16:16·24). Plaintiff testified that he worked at the construction
site at 535 4th Avenue (535 Site) as well as the adjacent construction site at 555 4th
Avenue (555 Site) (id at 23:19·23). His supervisor was Luke Flaherty, who had
hired him for the job (id at 25:11-13, 80:9-15). On the day of the accident, plaintiff
was going to Slate's office at the 535 Site to make copies and to meet his friend for
lunch (id at 19:16·20). He fell as he went up the temporary staircase (id at 95:14-
16). He did not notice an unsafe condition or he would have reported it to the site
superintendent at Slate (id at 39:9-90:s). And except for Julani Benjamin, the
friend he was meeting for lunch, no one was there when the accident happened (id
at 85:7-15).
Plaintiff had witnessed NafPak working with pipes on the jobsite before his
accident. And "[w]henever he had previously observed a discarded pipe on the
jobsite, he would tell the plumbers to clean up after themselves" (NYSCEF # 118 -
Owners/GC's aff in opp· ,r 21). The QFS laborers were directed to clean the jobsite,
including the temporary wooden staircase, daily. And their "erroneous performance"
caused plaintiffs injury (id il 34). The Owners/GC were unaware of who built the
temporary staircase or of any complaints or violation about debris on the staircase
1 Plaintiff testified that Slate and Dynatec were a partnership (NYSCEF # 90 · pltfs tr at 16: 16·24).
2 Prior to his accident, plaintiff received a letter of termination effective April 26, 2019, from SD
Builders and Construction Co. (NYSCEF # 90 at 54:14-19)_
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(id ,r 25). But Owners/GC surmises that NafPak would be the entity using the type
of pipe at issue for its plumbing and sprinklers work (id. ir,r 25-26). "At the direction
of 'management', QFS would clean the staircases on the jobsite of construction
debris (id ,r 27).
Julani Benjamin, a site safety coordinator at the time of plaintiffs accident,
testified that usually each trade cleaned up after themselves by putting the debris
in one area for the cleaners to pick up and dispose of (NYSCEF # 94 - Benjamin tr
at 8-11, 22-23:5, 23:7-24:7). Plaintiff testified that in the week leading up to the day
of his accident, NafPak was doing plumbing work at the 535 Site (pltfs tr at 77-78).
Joseph (Joe) Cappellini, a superintendent for SD Builders at the time of
plaintiffs accident and currently SD's Site Safety Coordinator, does not recall
seeing any pipes on the wooden staircase on the day of the accident (NYSCEF # 93 -
Capellini tr at 7-8:11; 44:12-15). Cappellini testified that the work shuts down at
lunchtime but not the site (id at 50:12-15).
QFS's employee, Yidel Falkowitz, testified that QFS does office and
commercial cleaning as well as provide unskilled laborers on demand from
management. The laborers' tasks are directed by the managers (NYSCEF # 95 -
QFS tr at 12, 18:22-20:12). It is usually the contractors who direct the unskilled
laborers, and the job at 535 Site was no different; QFS has the same setup (id at
38:18-39:5). As to the indemnity insurance, Falkowitz recognized the name "SD" as
the developer or investor since QFS has dealt with them before (id. at 39:9-6).
Addressing the allegations against it, QFS argues that it is not a "covered
entity" under Labor Law §§ 240(1) and 241(6) (MS2 - NYSCEF # 100 - QFS's MOL
at 1). QFS makes clear that it worked at the site under Dynatec (the general
contractor)'s direction. And characterizing itself as the "lowest man on the totem
pole," it stresses that it has no authority, control over the work, or duty to enforce
proper safety practices (QFS's MOL at 1). To stress this point, QFS cites Woodruff v
lslandwide Carpentry Contractors, Inc., which held that a subcontractor which was
not the general contractor or the owner's agent is not liable under Labor Law§§
240(1) and 241(6) (222 AD3d 920, 921 [2d Dept 2023]) (QFS's MOL at 3). QFS
asserts, without reference to the contract provision, that its contract with the GC
"expressly stated that the construction manager did not control the means and
methods of work," and claims, also without reference, that the plaintiff himself
testified that "his employer was responsible for the safety at the job site" (id at 4).
QFS also points out that plaintiff is not a covered worker because his
presence at the 535 Site was to meet a friend for lunch; plaintiff worked at the
adjacent 555 Site (id. at 1). But even if plaintiff were a covered worker, QFS argues
that plaintiffs injury does not invoke the protections under Labor Law § 240 since
plaintiffs fall did not involve "a significant elevation related risk" (id). Plaintiff
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merely slipped on a pipe, which was incidental to the pipe work being done but did
not fall to the ground. And the staircase, which was temporary, was not inadequate
for its purpose (id).
Plaintiff opposes QFS's motion (MS2 - NYSCEF # 117 - pltfs MOL). Citing to
the contract between QFS and the GC (the QFS-GC contract), plaintiff argues that
QFS is a statutory agent of either the owners or the GC (id ,r,r 5-9). Plaintiff points
to the QFS-GC contract as evidence that the GC conferred "supervisory authority
onto QFS for their scope of work inclusive of their duty to clean the 535 Site,"
pointing out the contract says "as an independent subcontractor of Contractor,
[QFS] agrees to provide all labor, ... supervision ... work, services, paperwork, and
insurance necessary to perform the Work described in this Agreement .... " (id ,r 8
quoting NYSCEF # 97 - contract at 3 § 1). Along with the "Site Management" and
"Compliance with Laws" provisions in the QFS-GC contract, plaintiff concludes that
QFS is a statutory agent of the GC or the owners and is a covered entity liable for
plaintiffs injury (id ,r 9 citing Walls v Turner Constr. Co., 4 NY3d 861 [2005]).
Plaintiff concludes that QFS's failure to clear the wooden staircase of the metal pipe
on the step is the cause of plaintiffs accident (id ,r 10).
Plaintiff adds that because he worked for the developer, non-party Slate, he
is covered by the protections under Labor Law § 240(1) and§ 241(6). To counter
QFS's claim that plaintiff was not a covered person as he was merely on the
premises to meet a friend for lunch, plaintiff asserts that he was there as a site
superintendent for one of the owners of both the 535 and 555 Sites and he would go
between the two sites. Plaintiff testified that he was intending to meet his friend at
the 535 office for lunch, but he was also going to make copies of the time sheets at
the 535 office at the time of his accident (pltfs tr at 184).
As for his claim under Labor Law§ 200, plaintiff argues that QFS, as a
statutory agent, responsible for housekeeping or clean up, has the burden of
showing that the staircase was cleaned before plaintiff went on it (pltfs MOL ,r 47).
Plaintiff posits that he has established that QFS is a covered entity and that
plaintiff is a covered.person, hence, plaintiff claims that QFS is liable for plaintiffs
injury. And plaintiff claims QFS has not made a prima facie case that it lacked
notice of the pipe on the staircase, hence QFS's motion should be denied (id ,r 49).
DISCUSSION
Labor Law§ 240(1) and Labor Law§ 241(6)
QFS argues that it is not a covered entity for purposes of Labor Law § 240(1)
and§ 241(6). A subcontractor is an "agent" of an owner or general contractor when
the subcontractor is given the authority to supervise and control the work being
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performed at the time of the injury (Brown v Two Exchange Plaza Partners, 146
AD2d 129 [1st Dept 1989] aff'd76 NY2cd 172 [1980]).
Plaintiff claims that QFS, under the QFS-GC contract, is a statutory agent.
"An agency relationship for purposes of section 240(1) arises only when work is
delegated to a third party who obtains the authority to supervise and control the
job" (Blake v Neighborhood Hous. Serv. ofNew York City, Inc., l NY3d 280, 293
[2003]). Here, reading plaintiffs chosen provision of section ] of the contract
together with the scope of plaintiffs work does not signal that QFS has supervisory
responsibility of the GC itself. In fact, the QFS-GC contract provision for "Scope of
Work" for QFS says that "[s]ubcontractor shall provide non-skilled labor service
staff for the Facilitv as Follows: Clean Site per direction of site supervisor. Act as
flagman and perform simple deliveries. Act as hoist operators as needed and
perform other work within the scope of non-skilled labor," and that "[tlhe rate of pay
was $25.00 per hour" (QFS-GC contract at 1 [underline in original]). Nothing in the
scope of the contract hints that QFS is acting as an agent for QFS.
Thus, as stated under the QFS-GC contract, QFS agreed to clean the site as
directed by the site supervisor (see pltfs atty aff ,i,i 20 quoting contract at 2). The
site supervisor, as plaintiff identified, was Luke Flaherty (pltf tr at 18:14-17, 25:11-
13). Plaintiff himself also supervised (id at 25:14-20 ["(w)hatever trades that were
there for that day, I would supervise it ... "]).
Plaintiff relies on the Walls v Turner Constr. Co. case, but the defendant in
Walls "had such supervisory control and authority over the work being done" -
replacing a window - and "[the defendant's] broad responsibility was both that of
coordinator and overall supervisor for all the work being performed on the job site ..
. and under a contractual obligation to monitor [the] window replacement" (4 NY3d
at 864-865). In contrast to the defendant in Walls, QFS was not the site supervisor
nor did QFS controlled or supervised plaintiff, who was one of the owners/
developer's superintendent and a site supervisor as he had testified. There is no
allegation that QFS controlled or supervised the work site or directed the
installation of the sprinkler system that required the subject temporary staircase.
Notably, plaintiff does not cite any contract provision that delegates the duty
of owners and contractors to furnish or erect devices so as to give workers the
proper protection against elevation-related injury that is imposed by Labor Law §
240(1). Nor did plaintiff state that QFS had authority to supervise and control the
elevation-related job. There are also no allegations that the "nondelegable duties on
owners, as required under Labor Law§ 241(6) to 'provide reasonable and adequate
protection and safety for workers and to comply with the specific safety rules and
regulations promulgated by the Commissioner of the Department of Labor"' were
delegated to QFS, who are not owners or have an interest in the property (see
Karwowski v 1407 Broadway Real Estate, LLC, 160 AD3d 82, 85 [1st Dept 2018]).
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The contractual provisions cited by plaintiff, such as compliance with laws, is too
general to delegate these nondelegable duties to QFS. Finally, plaintiffs argument
imputing authority and control to QFS is unpersuasive given QFS's function under
the QFS-GC contract is to clean and provide unskilled laborers for cleaning. These
cleaning jobs were to be done "as directed by the site supervisor" according to the
QFS-GC contract and as testified by Cappellini, the Owners/Developers'
superintendent. As such, plaintiff, as a site supervisor present in the 535 Site, had
the authority to instruct QFS's unskilled laborers to clean the stairs.
Further, as plaintiff had testified, he did not see any defect (the pipe) before
climbing the stairs. There is no indication that QFS had constructive notice of this
defect. And even if there were, plaintiff testified that he would have reported it to
Slate's site superintendent. Finally, plaintiff also testified that except for Benjamin,
whom he was meeting for lunch, he did not see anyone when the accident.occurred.
That no one was around correlates with Cappellini's testimony that at lunchtime,
all work at the Sites stops. There is no information as to whether this piece of pipe
was noticed by anyone at the lunch break let alone QFS personnel.
In sum, there is no evidence that QFS was a statutory agent of the
owners/developers or the GC, that it had authority and control of jobs that are
handled by other subcontractors or plaintiffs job or actions. As such, QFS was not
required to provide the safety devices under Labor Law § 240(1) or adequate
protection to those workers under Labor Law§ 241(6) (see Rodrjguez v Rjvers1de
Center Sjte 5 Owner, LLC, 234 AD3d 623, 625 [1st Dept 2025]). Accordingly, QFS's
motion for summary judgment dismissing plaintiffs Labor Law§ 240(1) and§
241(6) claims as against it is granted.
Given this conclusion, the issue of whether plaintiff was a covered person
under Labor Law§ 240(1) when his purpose of going up the temporary steps then
was to make copies inside an office and to meet a friend for lunch is academic as far
as QFS is concerned. In any event, the answer is no, plaintiff was not engaged in
any enumerated function covered by§ 240(1) (see Campjsj v Epos Contrac6ng Corp.
299 AD2d 4, 5 [1st Dept 2002]). Nor was plaintiff, a superintendent, performing an
act necessary to further or assist any of the enumerated function Ud at 6
[discussing and citing cases in which§ 240(1) protections were afforded to an
architect, a civil engineer, a consultant, a supervisor and steel inspector who fell
while inspecting the construction work site]).
Labor Law§ 200
As for plaintiffs claim under Labor Law § 200 and common law negligence,
QFS asserts it had no notice of pipe debris on the temporary staircase. Plaintiff
points out that there is no evidence such as log reports or inspection sheets or any
testimony in the record to s.how when QFS cleaned the area. Plaintiff posits that
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this lack of evidence is detrimental to QFS's motion for summary judgme:µt (pltfs
atty aff ,i 9).
Labor Law§ 200 codifies an owner's or general contractor's common law duty
to maintain a safe construction site (see Comes v New York State Elec. & Gas Corp.,
82 NY2d 876, 877 [1993]). To prevail on a Labor Law§ 200 claim, plaintiff must
show, in this case, that QFS "supervised and controlled plaintiffs work or had
actual or constructive knowledge of the alleged unsafe condition (see Torkel v NYU
Hasps. Ctr., 63 AD3d 587, 591 [1st Dept 2009]; Burkoskj v Structure Tone, 40 AD3d
378, 380-381 [1st Dept 2007]). To have supervisory control, a contractor must have
controlled "how the injury-producing work was performed" (Hughes v Tjshman
Constr. Corp, 40 AD3d 305 [1st Dept 2007]). To plaintiffs point that QFS has no
evidence to show oflack of notice, it is not defendant's burden to prove lack of notice
"where the plaintiff failed to claim the existence of notice of the condition" (Frank v
Tjme Eqw'tjes, 292 AD2d 186, 186 [1st Dept 2002]).
QFS provides unskilled laborers to clean under the supervisor's direction, as
stated in the QFS-GC contract. QFS unskilled laborers functioned as directed by the
Owners/GC's supervisor. Certainly, there is no serious argument that QFS's
unskilled laborers controlled the developer's superintendent's work or the plumbing
subcontractor's work (see Rwsech v Structure Tone, Inc., 208 AD3d 412, 414·415
[1st Dept 2022]). Finally, there is no indication that QFS had or should have had
notice of the piece of pipe on the staircase around lunchtime when all work stops
and no one was around (see Ladjgnon v Lower Manhattan Dev. Corp., 128 AD3d
534, 535 [1st Dept 2015] [dismissing claims against cleaning subcontractor absent
any indication of any constructive notice of the defect). Plaintiffs Labor Law§ 200
is dismissed as against QFS.
Indemnjffoati'on/Contnhuti'on Cla1ms
Pertinent to the Owners/GC's motion is their contractual indemnity and
common law indemnity claims and contribution against QFS (NYSCEF # 118 -
Owners/GC's aff in opp). The QFS-GC contract included an "indemnification
provision requiring [QFS] to hold the Owner/GC harmless when a claim arises out
of or are connected with or are claimed to arise out of or be connected from the
performance of its work on the jobsite" Ud ,i 36).
As the finding on liability is in QFS's favor, and summary judgment is
granted dismissing plaintiffs claims against QFS, so must the Owner/GC's claims
for indemnification and contribution against QFS. As such, the Owner/GC's claim
for contractual and common law indemnification and contribution cross-claim for
indemnity and contribution is denied.
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MS 001 - Indemnification and Contribution
The Owners/GC's claims for indemnification and contribution from QFS must
be denied given the findings on liability addressed above. Consequently, QFS's
crossclaim dismissing the Owners/GC's as against QFC is granted given the
findings and decision in MS 002.
As for the Owners/GC claims for the same against N afPak, the motion is
premature (see NYSCEF # 103, NafPak's opps il 17). There is no motion or decision
as to NafPak's liability. To the extent that Owners/GC argue liability issues against
NafPak, the arguments are made in its reply, hence they are not considered. The
arguments made in its affirmation in support claim either QFS or NafPak are liable
(MS 001- NYSCEF # 68, Owners/GC's aff in support). This court declines to
venture a guess on this issue absent any evidence and based on conclusory
arguments. As such, MS 001 is dismissed as premature without prejudice as
against N afPak.
Accordingly, it is
ORDERED that third-party plaintiffs Partners VII/535 Fourth Owner LLC,
535 4th Avenue Developer LLC, and XYZ Properties, Inc. and Dynatec Contracting
Inc.'s (collectively, Owners/GC) motion (MS 001) is dismissed without prejudice as
against Naf Pak Plumbing & Heating Corp (NafPak); and it is further
ORDERED that the Owners/GC's motion (MS 001) as against third-party
defendant Quality Facility Solutions Corp is denied; consequently, Quality Facility
Solutions Corp's cross motion is in MS 001 is granted; and it is further
ORDERED that defendant/third-party defendant Quality Facility Solutions
Corp. shall serve this Decision and Order with Notice of Entry on all parties and the
Clerk of the Court within 10 days of the filing of this order; and it is further
ORDERED that the non-dismissed parties shall proceed to Part 40 for trial.
6/01/2025
DATE
~MARGARET A. CHAN, J.S.C.
~
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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