The opinion
Settanni v Moynihan Sta. Dev. Corp.
2025 NY Slip Op 32207(U)
June 23, 2025
Supreme Court, New York County
Docket Number: Index No. 154318/2021
Judge: Judy H. Kim
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 06/23/2025 11:56 AM INDEX NO. 154318/2021
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 06/23/2025
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. JUDY H. KIM PART 04
Justice
---------------------------------------------------------------------------------X INDEX NO. 154318/2021
MARK SETTANNI,
MOTION DATE 11/26/2024
Plaintiff,
MOTION SEQ. NO. 002
-v-
MOYNIHAN STATION DEVELOPMENT CORPORATION,
MOYNIHAN TRAIN HALL DEVELOPER, LLC, VORNADO
REALTY, L.P., VORNADO REALTY TRUST, THE DECISION + ORDER ON
RELATED COMPANIES, INC., EMPIRE STATE MOTION
DEVELOPMENT CORPORATION,
Defendants.
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The following e-filed documents, listed by NYSCEF document number (Motion 002) 32, 33, 34, 35, 36,
37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52
were read on this motion for JUDGMENT - SUMMARY .
Upon the foregoing documents, plaintiff’s motion for summary judgment as to liability on
his Labor Law §240(1) claim is denied.
FACTUAL BACKGROUND
Plaintiff testified as follows: On October 21, 2019, plaintiff was working as a carpenter for
non-party Skanska USA Civil on the Moynihan Train Hall conversion. On that date, plaintiff was
working on 31st Street between 8th and 9th Avenues, inside a “bollard pit” approximately four
feet deep, twelve feet wide and several hundred feet long, assembling forms into which concrete
would be poured. While he was working, a wooden plank weighing approximately thirty pounds
was placed vertically in the bollard pit by another Skanska employee. One of plaintiff’s coworkers
knocked the plank over and it fell onto plaintiff, who was working on his hands and knees at that
time, injuring him.
154318/2021 SETTANNI, MARK vs. MOYNIHAN STATION DEVELOPMENT CORPORATION, Page 1 of 4
Motion No. 002
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FILED: NEW YORK COUNTY CLERK 06/23/2025 11:56 AM INDEX NO. 154318/2021
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 06/23/2025
Plaintiff commenced this action on May 4, 2021, asserting violations of Labor Law §§200,
240, 241(6). Plaintiff now moves for partial summary judgment as to liability on his Labor Law
§240(1) claim. Defendants oppose the motion, arguing that no Labor Law §240(1) claim lies
because the alleged accident does not involve an object being hoisted or falling from a great height.
DISCUSSION
“The proponent of a summary judgment motion 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. Failure to make such prima facie showing requires a denial
of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been
made, however, the burden shifts to the party opposing the motion for summary judgment to
produce evidentiary proof in admissible form sufficient 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]
[internal citations omitted]).
Labor Law §240(1), also known as the “Scaffold Law,” provides that
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]).
Contrary to defendants’ position, the fact that plaintiff and the wood plank were on the
same level does not necessarily preclude this claim (see Wilinski v 334 E. 92nd Hous. Dev. Fund
Corp., 18 NY3d 1, 9 [2011]). Rather, “[w]here a load positioned on the same level as the injured
worker falls a short distance, Labor Law §240(1) applies if the load, due to its weight, is capable
of generating significant force” (Grigoryan v 108 Chambers St. Owner, LLC, 204 AD3d 534 [1st
154318/2021 SETTANNI, MARK vs. MOYNIHAN STATION DEVELOPMENT CORPORATION, Page 2 of 4
Motion No. 002
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FILED: NEW YORK COUNTY CLERK 06/23/2025 11:56 AM INDEX NO. 154318/2021
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 06/23/2025
Dept 2022] [internal citations omitted]). However, whether the wooden plank here generated such
force, given its weight and the distance it traveled, cannot be determined as a matter of law on this
motion (see Palermo v 7 W. 21 LLC, 192 AD3d 560, 561 [1st Dept 2021] [plaintiff’s motion for
summary judgment on Labor Law §240(1) properly denied where 175-200 pound wooden form
fell three to four feet onto plaintiff’s foot]; see also Lopez v 106 LPA LLC, 222 AD3d 526, 527
[1st Dept 2023] [plaintiff and defendants’ motions for summary judgment on Labor Law §240(1)
claim properly denied where four-foot by two-foot concrete form weighing approximately fifty
pounds, leaning at the same level as plaintiff fell onto plaintiff]; cf. Harris v City of New York, 83
AD3d 104, 110 [1st Dept 2011] [trial court erred in denying plaintiff’s motion for summary
judgment on Labor Law 240(1) claim involving one ton slab’s descent of three to four feet]).
Even assuming that the plank generated the requisite force, a further issue of fact would
remain “as to whether there was a safety device of the kind contemplated by Labor Law §240 (1)
that could have prevented his accident” (Palermo v 7 W. 21 LLC, 192 AD3d 560, 561 [1st Dept
2021]). No evidence has been presented on this motion to establish that one of the safety devices
enumerated in the statute should have been employed. While plaintiff relies on the testimony of
Skanska Superintendent Peter Zimmerman on this point, Zimmerman testified only that the
“proper procedure” in placing a plank in the bollard pit was for the man in the pit to “receive” the
plank and “stabilize it” (NYSCEF Doc No. 39, Zimmerman EBT tr. at p. 34). Whether this
stabilization involved a safety device was not addressed in his testimony, and it is therefore
insufficient to carry plaintiff’s burden (cf. Spero v 3781 Broadway, LLC, 214 AD3d 546, 546-47
[1st Dept 2023] [“the deposition testimony, photographic evidence and opinion of plaintiff’s safety
expert established that the heavy plywood board constituted a load that required securing for the
undertaking”]).
154318/2021 SETTANNI, MARK vs. MOYNIHAN STATION DEVELOPMENT CORPORATION, Page 3 of 4
Motion No. 002
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FILED: NEW YORK COUNTY CLERK 06/23/2025 11:56 AM INDEX NO. 154318/2021
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 06/23/2025
Accordingly, it is
ORDERED that plaintiff’s motion for summary judgment on his Labor Law §240(1) claim
is denied; and it is further
ORDERED that defendants shall serve a copy of this decision and order, with notice of
entry, upon plaintiff as well as the Clerk of the Court; and it is further
ORDERED that such service upon the Clerk of the Court and the Clerk of the General
Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on
Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the
“EFiling” page on this court’s website).
The Note of Issue having been filed on September 30, 2024, this Court notes that this action
is ready for trial in the Part 40.
This constitutes the decision and order of the Court.
6/23/2025
DATE HON. JUDY H. KIM, J.S.C.
CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
GRANTED X DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
154318/2021 SETTANNI, MARK vs. MOYNIHAN STATION DEVELOPMENT CORPORATION, Page 4 of 4
Motion No. 002
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