The opinion
Cocozza v Popkin
2025 NY Slip Op 32169(U)
June 17, 2025
Supreme Court, New York County
Docket Number: Index No. 159580/2021
Judge: Lynn R. Kotler
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.
FILED: NEW YORK COUNTY CLERK 06/18/2025 04:40 PM INDEX NO. 159580/2021
NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 06/18/2025
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. LYNN R. KOTLER PART 08
Justice
-------------------X INDEX NO. 159580/2021
THOMAS COCOZZA,
MOTION DATE 04/29/2024
Plaintiff,
MOTION SEQ. NO. 003
-v-
GREGG POPKIN, JOAN POPKIN, NEWMARK CUSTOM
DECISION + ORDER ON
HOMES, INC.,
MOTION
Defendants.
-------------------X
NEWMARK CUSTOM HOMES, INC., Third-Party
Index No. 595300/2025
Third-Party Plaintiff,
-against-
ALL POINTS PLUMBING INC.,
Third-Party Defendant.
-------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 003) 55, 56, 57, 58, 59,
60,61,62,63,64,65,66,67,68,69, 70, 71, 72, 73, 74, 75, 77,84
were read on this motion to/for PARTIAL SUMMARY JUDGMENT
This action arises from a workplace accident suffered by plaintiff in February 2021 when
he allegedly slipped on snow/ice while descending an exposed exterior staircase at a construction
project located at 25 Great Oak Way, East Hampton, New York (the "Premises"). At the time of
the accident, plaintiff was working for third-party defendant All Points Plumbing Inc. ("All
Points"), which was subcontracted to perform plumbing work at the Premises by the general
contractor, defendant Newmark Custom Homes, Inc. ("Newmark"). Plaintiff now moves
pursuant to CPLR 3212 for partial summary judgment against Newmark as to liability on his
causes of action under Labor Law§§ 200 and 241(6). Newmark opposes the motion. The motion
is denied.
159580/2021 COCOZZA, THOMAS vs. POPKIN, GREGG ET AL Page 1 ofS
Motion No. 003
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On a motion for summary judgment, the proponent bears the initial burden of making a
prima facie showing that it is entitled to summary judgment as a matter of law, providing
sufficient evidence that no material issues of triable fact exist (see Trustees ofColumbia Univ. in
the City ofN. Y. v D'Agostino Supermf!rkets, Inc., 36 NY3d 69, 74 [2020]; Alvarez v Prospect
Hosp., 68 NY2d 320,324 [1986]). Once met, the burden shifts to the opposing party to "produce
evidentiary proof in admissible form sufficient to require a trial of material questions of fact"
(Zuckerman v City ofNew York, 49 NY2d 557, 562 [1980]; see De Lourdes Torres v Jones, 26
NY3d 742, 763 [2016]). However, if the proponent fails to make out its prima facie case for
summary judgment, its motion must be denied regardless of the sufficiency of the opposing
papers (Alvarez, 68 NY2d at 324; Ayotte v Gervasio,. 81 NY2d 1062 [1993]). Summary judgment
is a drastic remedy that should not be granted where there is any doubt as to the existence of a
triable issue (see Vega v Restani Constr. Corp., 18 NY3d 499,503 [2012]). The court's function
on these motions is limited to "issue finding," not "issue determination" (see id at 505).
Labor Law § 200 codifies the common law duty of owners and general contractors to
provide workers with a reasonably safe place to work (Comes v New York State Elec. And Gas
Corp., 82 NY2d 876,877 [1993]). There are two categories of personal injury claims under
Labor Law § 200 and the common law: those arising from dangerous or defective conditions
existing on the premises and those arising from the manner or means in which the work was
performed (Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139, 143-44 [1st Dept. 2012]). As
relevant here, to demonstrate a prima facie case under the former category, plaintiff must prove
that the owner or general contractor created th~ alleged dangerous or defective condition or had
actual or constructive notice of it (id).
Labor Law§ 241(6) imposes a non-delegable duty on contractors and owners to ensure
that "[a]ll areas in which construction, excavation or demolition work is being performed'' is "so
constructed, shored, equipped, guarded, arranged, operated and conducted as to provide
reasonable and adequate protection and safety to the persons employed therein .... " The scope
of the duty imposed by Labor Law§ 241(6) is defined by the safety rules set forth in the
Industrial Code (see Garcia v 225 E. 57th Owners, Inc., 96 AD3d 88, 91 [1st Dept. 2012], citing
Ross, 81 NY2d at 501-02). Thus, to establish liability under this provision, plaintiff must
"specifically plead and prove the violation of an applicable Industrial Code regulation" (Buckley
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Motion No. 003
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v Columbia Grammar & Preparatory, 44 AD3d 263,271 [1st Dept. 2007]). Here, plaintifrs
motion seeks summary judgment on the Labor Law§ 241(6) claim based solely on Newmark's
alleged violation oflndustrial Code§ 23-l.7(d), which states that "[e]mployers 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[,]" and that "[i]ce, snow, water, grease and any
other foreign substance which may cause slippery footing shall be removed, sanded or covered to
provide safe footing."
In support of his motion, plaintiff submits and principally relies upon his own affidavit
and deposition transcript, as well as the deposition transcripts of Mark Cardone, Newmark's
owner, and Marc Keitel, plaintiff's on-site supervisor and the owner of All Points. These
submissions suffice to establish plaintiffs prima facie entitlement to summary judgment on his
"Claims under Labor Law §§ 200 and 241 (6) because they demonstrate that: plaintiff slipped on
snow/ice while carrying two bags of plumbing fixtures down an exposed exterior staircase into
the basement of the Premises; Cardone was aware, hours before plaintiff's accident, that plaintiff
was using the subject stairs and that the stairs were covered in snow and/or ice; and Cardone
nevertheless neither cleared away the snow and ice nor cordoned off the stairs to prevent their
use.
Newmark, however, raises triable issues of fact with regards to whether plaintiff's own
recalcitrance was the sole proximate cause of his injury. Specifically, Newmark points to
plaintiff's testimony that he used the stairs despite knowing they were slippery due to snow and
ice, as well as to testimony by both Cardone and Keitel that, on the day of the accident, they each
instructed plaintiff-and in Cardone's case, repeatedly instructed him-not to use the subject
stairs but to instead access the basement using a ladder installed on site for that purpose, which
Keitel and plaintiff had previously used without any problem. Newmark thus submits .evidence
that it provided plaintiff a safe and readily available alternative method of accessing the
basement, that both it and All Points specifically.instructed plaintiff to make use of this
alternative method and not to use the subject stairs, and that plaintiff ignored these instructions
and chose for no good reason to continue to use the stairs despite knowing of their slippery
condition (see Robinson v East Med. Ctr., LP, 6 NY3d 550, 553 [2006]; Montgomery v Federal
159580/2021 COCOZZA, THOMAS vs. POPKIN, GREGG ET AL Page 3of5
Motion No. 003 ·
3 of 5
[* 3]
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Express Corp., 4 NY3d 805, 806 [2005]; Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d
35, 39 [2004]; Garcia v Emerick Gross Real Est., L.P., 196 AD3d 676 [2nd Dept. 2021]).
Plaintiff contends the recalcitrant worker defense is inapplicable because Cardone's
instructions not to use the stairs was not intended as a safety directive but was instead meant to
protect the bluestone tread on the subject stairs, which had just been installed the day before.
This contention is unavailing. Cardone's_testimony regarding his desire to protect the newly
installed tread on the subject stairs did not expressly relate to his instructions to plaintiff, but
instead related to his erection of a barrier to block access to the stairs the day before the accident,
which he believed plaintiff and Keitel had removed. By contrast, Cardone testified that his
instructions to plaintiff not to use the stairs were expressly given in response to plaintiff's
complaints that the stairs were dangerously slippery.
Similarly unavailing is plaintiff's contention that the recalcitrant worker defense is
inapplicable because the available ladder was not a safe alternative method for accessing the
basement. Specifically, plaintiff asserts that he could not safely use the subject ladder while
holding the bags of plumbing fixtures in even one of his hands. However, plaintiff himself
testified that each of the bags he was carrying at the time of his accident weighed only about
eight or nine pounds. Moreover, Keitel testified that the ladder could have been used to bring
these fittings to the basement, and that plaintiff had on many previous occasions carried
materials in one hand while traversing the ladder.
Finally, plaintiff correctly notes that issues of comparative fault are not a bar to an award
of summary judgment as to liability on his Labor Law claims (see Rodriguez v City ofNew York,
31 NY3d 312 [2018]). Nevertheless, "[i]t is still necessary ... for the plaintiff to show that the
statute was violated and that the violation proximately caused his injury[,]" and thus, "where a
plaintiff's own actions are the sole proximate cause of the accident, there can be no liability"
(Cahill, 4 NY3d at 39 [emphasis added]).
Accordingly,itis
ORDERED that plaintiff's motion for partial summary judgment is denied; and it is
further
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Motion No. 003
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FILED: NEW YORK COUNTY CLERK 06/18/2025 04:40 PM INDEX NO. 159580/2021
NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 06/18/2025
ORDERED that the Clerk shall mark the file accordingly.
This constitutes the Decision and Order of the court.
6/17/2025
DATE
~
CHECK ONE: CASE DISPOSED
NON-FINAL. DISPOSITIO.N
GRANTED . 0 DENIED GRANTED IN PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
159580/2021 COCOZZA, THOMAS vs. POPKIN, GREGG ET AL Page 5 of5
Motion No. 003
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