Losurdo v. Tutor Perini Corp.

Losurdo v Tutor Perini Corp.

2026 NY Slip Op 30888(U)

March 9, 2026

Supreme Court, New York County

Docket Number: Index No. 151318/2021

Judge: James G. Clynes

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.

file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.1513182021.NEW_YORK.001.LBLX036_TO.html[03/19/2026 3:45:53 PM]

FILED: NEW YORK COUNTY CLERK 03/11/2026 09:48 AM INDEX NO. 151318/2021

NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 03/10/2026

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. JAMES G. CLYNES PART 39M

Justice

-------------------X INDEX NO. 151318/2021

ERIK LOSURDO,

MOTION DATE 09/03/2024

Plaintiff,

MOTION SEQ. NO. 004

- V -

TUTOR PERINI CORPORATION, MTA- LONG ISLAND

RAILROAD

DECISION + ORDER ON

MOTION

Defendant.

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

The following e-filed documents, listed by NYSCEF document number (Motion 004) 87, 88, 89, 90, 91,

92,93, 94,95, 96, 97,98,99, 100,101,102,103,104,105,106,115,116,117,118,119,120,121,122,

123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 134, 135, 136

were read on this motion to/for JUDGMENT-SUMMARY

Upon the foregoing documents, it is ordered that the defendants' motion and cross-

motion by plaintiff are decided as follows.

I. INTRODUCTION

Plaintiff sues to recover damages for personal injuries he sustained June 16, 2020, when

he fell into a hole in a railroad yard under construction while he was working on premises owned

by defendant MTA - Long Island Railroad on a construction project in Long Island City for

which defendant Tutor Perini Corporation was the general contractor. Plaintiff, an electrician

employed by an electrical subcontractor on the project, nonparty Five Star Electric Corp., was

standing a few feet from a hole that Tutor Perini had excavated and in which Five Star Electric or

its subcontractor had planted two conduits. He was measuring wire to make an electrical

connection, when the ground surrounding the hole gave way, causing him to fall with the

collapsed ground into the hole.

Defendants jointly move for summary judgment dismissing plaintiffs claims that

defendants violated New York Labor Law§§ 200, 240(1), and 241(6) and were negligent,

causing his injury. C.P.L.R. § 3212(b). Plaintiff cross-moves for partial summary judgment on

defendants' liability based on each of his claims. C.P.L.R. § 3212(b) and (e).

For the reasons explained below, the court grants defendants' motion to the extent of

granting summary judgment dismissing plaintiffs claim that defendants violated Labor Law §

241(6), but otherwise denies their motion. C.P.L.R. § 3212(b) and (e). The court grants

plaintiffs cross-motion for summary judgment on both defendants' liability for violation of

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Labor Law § 240(1) and on Tutor Perini' s liability for negligence and for violation of Labor Law

§ 200, but otherwise denies his cross-motion. C.P.L.R. § 3212(b) and (e).

II. SUMMARY JUDGMENT STANDARDS

To obtain summary judgment, the moving parties must present a prima facie showing of

entitlement to judgment as a matter oflaw, through admissible evidence eliminating all material

issues of fact. Bill Birds. Inc. v. Stein Law Firm. P.C., 35 N.Y.3d 173, 179 (2020); Friends of

Thayer Lake LLC v. Brown, 27 N.Y.3d 1039, 1043 (2016); Nomura Asset Capital Corp. v.

Cadwalader. Wickersham & Taft LLP, 26 N.Y.3d 40, 49 (2015); Voss v. Netherlands Ins. Co.,

22 N.Y.3d 728, 734 (2014). Only if the moving parties_meet that initial burden, does the burden

shift to the non-moving parties to rebut that prima facie showing, by producing evidence, in

admissible form, sufficient to require a trial of material factual issues. Bill Birds. Inc. v. Stein

Law Firm. P.C., 35 N.Y.3d at 179; De Lourdes Torres v. Jones, 26 N.Y.3d 742, 763 (2016);

Nomura Asset Capital Corp. v. Cadwalader. Wickersham & Taft LLP, 26 N.Y.3d at 49; Morales

v. D & A Food Serv., 10 N.Y.3d 911,913 (2008). In evaluating the evidence for purposes of

summary judgment, the court construes the evidence in the light most favorable to the non-

moving parties. Stonehill Capital Mgt. LLC v. Bank of the W., 28 N.Y.3d 439,448 (2016); De

Lourdes Torres v. Jones, 26 N.Y.3d at 763; William J. Jenack Estate Appraisers & Auctioneers.

Inc. v. Rabizedeh, 22 N.Y.3d 470,475 (2013); Vega v. Restani Constr. Corp., 18 N.Y.3d 499,

503 (2012).

III. PLAINTIFF'S CLAIM BASED ON LABOR LAW§ 240(1)

Labor Law § 240(1) requires that all owners and general contractors of structures:

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.

The statute imposes absolute liability on the owner and general contractor of a construction site

if they fail to provide adequate protection against a gravity-related or elevation-related risk, and

that failure is the proximate cause of plaintiff worker's injury. Nicometi v. Vineyards of

Fredonia. LLC, 25 N.Y.3d 90, 97 (2015); Rivas v. Seward Park Hous. Corp.• 219 A.D.3d 59, 63

(1st Dep't 2023); Hogan v. 590 Madison Ave .• LLC, 194 A.D.3d 570,571 (1st Dep't 2021);

Milligan v. Tutor Perini Corp.. 191 A.D.3d 437,437 (1st Dep't 2021).

Plaintiff claims defendants are liable under Labor Law § 240(1) because they admittedly

provided no safety device to protect him from the ground around the hole giving way and to

protect him from falling into the hole. Defendants maintain that they did not violate the statute

primarily because plaintiffs fall was not a gravity-related or elevation-related risk, since Tutor

Perini's witness, its project executive Dennis McNemey, testified at his deposition that the hole

was only two feet deep.

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Defendants also suggest that plaintiff was the sole proximate cause of his fall and

consequent injury, because he did not stand in the hole while performing his work or cover the

hole after completing his work. No evidence, however, supports either contention. Plaintiff did

not need to stand in the hole to measure wire or perform any other assigned work, nor was he

instructed to do so. Demetria v. Clune Constr. Co., 176 A.D. 621, 622 (1st Dep't 2019).

Likewise, he had not completed his work around the hole when he fell, and, even ifhe had, he

was not provided any instruction or material with which to cover the hole.

Plaintiff testified at his deposition that the hole was five feet deep, so the court assumes

for purposes of defendants' motion that the difference in elevation between the top of the hole

and its bottom was two to five feet, but for purposes of plaintiffs cross-motion that the

difference was only two feet. An excavation that caves in, causing a construction worker

outside the excavation to fall into it, is a gravity-related risk that subjects an owner and general

contractor of a construction site to liability under Labor Law § 240( I), even if the excavation is

only two or three feet deep, Haskins v. Metropolitan Transp. Auth., 227 A.D.3d 409,409 (1st

Dep't 2024); Demetria v. Clune Constr. Co., 176 A.D. at 622, and only the worker's legs sink

into it. Favaloro v. Port Auth. ofN.Y. & N.J., 191 A.D.3d 524, 524-25 (1st Dep't 2021); Sunun

v. Klein, 188 A.D.3d 507, 508-509 (1st Dep't 2020). No minimum height difference determines

a gravity-related hazard. Palumbo v. Citigroup Technology, Inc., 240 A.D.3d 455,456 (1st

Dep't 2025); Haskins v. Metropolitan Transp. Auth., 227 A.D.3d at 409. Thus, "witnesses'

varying estimates of the depth of the excavated trench [did] not present an issue of fact as to

whether plaintiffs accident resulted from a significant elevation differential." McCormick v.

DiPersia, 238 A.D.3d 562, 563 (1st Dep't 2025). See LaGrippo v. 95th & Third LLC, 237

A.D.3d 578, 579 (1st Dep't 2025); Demetria v. Clune Constr. Co., 176 A.D. at 622. McNemey's

testimony that the excavation was only two feet deep likewise does not defeat plaintiffs claim.

McCormick v. DiPersia, 238 A.D.3d at 563. Even shorter distances may be physically

significant. Palumbo v. Citigroup Technology, Inc., 240 A.D.3d at 456; LaGrippo v. 95th &

Third LLC, 237 A.D.3d at 579; Mosquera v. TF Cornerstone Inc., 230 A.D.3d 1065, 1065 (1st

Dep't 2024); Rivas v. Seward Park Hous. Corp .. 219 A.D.3d at 64.

Moreover, the rocky material that Tutor Perini had excavated lay around the hole. When

the ground around the hole collapsed under plaintiff, the material fell into the hole with him,

filling the hole up to his shin and adding to the force of gravity on his body. Runner v. New

York Stock Exch., 13 N.Y.3d 599,601 (2009); Rivas v. Seward Park Hous. Corp., 219 A.D.3d at

64. Even if plaintiffs injury "did not involve the traversal of any elevation differential," the

decisive question is "whether the harm flows directly from the application of the force of

gravity." Runner v. New York Stock Exch., 13 N.Y.3d at 604. See Palumbo v. Citigroup

Technology. Inc., 240 A.D.3d at 456; Braganca-Ferreira v. SREP 10th Ave. Venture LLC, 238

A.D.3d 656,657 (1st Dep't 2025); Rivas v. Seward Park Hous. Corp., 219 A.D.3d at 64. The

elevation difference was not de minimis particularly given the weight of the rocky soil that

caught and felled plaintiff "and the amount of force it was capable of generating, even over the

course of a relatively short descent." Runner v. New York Stock Exch., 13 N.Y.3d at 605.

Defendants do not dispute that the perimeter of the excavation caved in due to the force of

gravity. Rivas v. Seward Park Hous. Corp .. 219 A.D.3d at 64.

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Defendants admit that neither plaintiff nor anyone else was excavating the hole when he

fell into it. The excavation was completed, so "braces" or "other devices" shoring up the

surrounding ground or a guardrail around the hole would not have interfered with ongoing work.

N.Y. Labor Law§ 240(1); Rivas v. Seward Park Hous. Corp., 219 A.D.3d at 65. See

McCormick v. DiPersia, 238 A.D.3d at 563; Mannino v. Waldorf Exteriors, LLC, 235 A.D.3d

470,471 (1st Dep't 2025); Guzman-Sasquisili v. Harlem Urban Dev. Corp., 231 A.D.3d 685,

686 (1st Dep't 2024); Tejada-Rodriguez v. 76 Eleventh Ave. Prop. Owner LLC, 231 A.D.3d

419-20 (1st Dep't 2024). In fact, while the electricians may have needed access to the conduits

in the hole, no evidence indicates why the hole could not have been filled in, since the conduits

rose to the top of the hole. Defendants fail to present evidence disputing that safety devices or

measures would have prevented plaintiffs injury. Sunun v. Klein, 188 A.D.3d at 509. Although

a need to access the conduits may have precluded covering the hole completely, the risk here was

no different than had plaintiff stepped on an insecure covering that gave way, causing one or

both legs to fall into the hole, Broughton v. 553 Marcy Ave. Owners LLC, 238 A.D.3d 534, 536-

37 (1st Dep't 2020); Devlin v. Aecom, 224 A.D.3d 437,438 (1st Dep't 2024); Favaloro v. Port

Auth. ofN.Y & N.J., 191 A.D.3d at 524-25, or had he fallen off a scaffold or ladder that moved.

Ruiz v. BOP 245 Park LLC, 231 A.D.3d 683,684 (1st Dep't 2024). Yet the uncontroverted

evidence establishes that defendants failed to provide him any safety devices to prevent his fall

or any warning to stay clear of the unstable perimeter of the hole. Haskins v. Metropolitan

Transp. Auth., 227 A.D.3d at 410; Sunun v. Klein, 188 A.D.3d at 509.

For all these reasons, plaintiff is entitled to summary judgment on defendants' liability

for violation of Labor Law § 240(1 ), and defendants are not entitled to summary judgment

dismissing his Labor Law§ 240(1) claim. C.P.L.R. § 3212(b) and (e).

IV. PLAINTIFF'S CLAIM BASED ON LABOR LAW§ 241(6)

Labor Law § 241 (6) imposes absolute liability on the owner and general contractor of a

constructions site for the negligent failure of any contractor, subcontractor, or its agent or

employee on the site to ensure that "all areas in which construction, excavation or demolition

work is being performed be so constructed, shored, equipped, guarded, arranged, operated and

conducted as to provide reasonable and adequate safety and protection to persons employed

therein." See St. Louis v. Town ofN. Elba, 16 N.Y.3d 411,413 (2011); Balbuena v. IDR Realty

LLC, 6 N.Y.3d 338,361 n.8 (2006); Nagel v. D & R Realty Corp., 99 N.Y.2d 98, 102 (2002).

Defendants' supervision or control of the work or work site or their actual or constructive notice

of a violation ofthis statutory duty is unnecessary to impose liability on defendants as long as a

contractor, subcontractor, or its agent or employee on the site was negligent. Rizzuto v. L.A.

Wenger Contr. Co., Inc., 91 N.Y.2d 343, 348-49 (1998). A violation of an applicable regulation

under the statute that mandates compliance with a concrete specification establishes a violation

of the statute. Id.; Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 502-503 (1992).

Plaintiff claims violations of 12 N.Y.C.R.R. §§ 23-l.7(b)(l), 23-3.3(c), 23-4.l(b), and 23-

4.2(a). Section 23-l.7(b)(l)(ii) requires that any hazardous opening into which a person may

step or fall be guarded by a cover fastened in place or by a railing. Since plaintiff has not shown

that access to the conduits in the hole was unnecessary, nor does he claim that defendants were

required to cover it, he claims only that defendants were required to construct and install a safety

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railing around the hole. The regulation does not require, however, that the railing be installed at

any minimum distance from the hole. As the hazard lay in the very ground that gave way around

the hole, the court is at a loss to perceive how a railing around the hole would have protected the

ground in which it was installed from sinking or collapsing, causing the railing to fall into the

hole along with plaintiff. Although the term "safety railing" implies that it be safe, 12

N.Y.C.R.R. § 23-1.7(b)(l), it is not a concrete specification that the court may enforce by

reading into the regulation a requirement that the railing be set back far enough from the hole to

be on stable, secure ground.

12 N.Y.C.R.R. § 23-3.3(c) requires continuous inspections to detect loosened materials,

weakened conditions and other hazards, but applies only to ongoing demolition by hand, and

therefore is inapplicable to the completed excavation here. Section 23-4.l(b) prohibits

permitting persons to enter an excavation that may expose them to a cave-in without adequate

safeguards. Even were the court to construe this regulation to apply on the perimeter of an

excavation, as well as in the excavation itself, plaintiff failed to plead a violation of§ 23-4.l(b)

in his complaint or bills of particulars. Therefore, he may not now rely on this regulation.

Finally, 12 N.Y.C.R.R. § 23-4.2(a) applies to excavations at least five feet deep with

workers inside the excavation. Plaintiff may have raised a factual issue whether the excavation

into which he fell was five feet deep, but admits he was not in it. This regulation is intended to

protect workers in an excavation and is inapplicable to workers like plaintiff outside it.

In sum, each regulation on which plaintiff relies is either not pleaded, or would not have

protected him, or is otherwise inapplicable to his circumstances. Therefore, defendants are

entitled to summary judgment dismissing plaintiffs Labor Law§ 241(6) claim, and plaintiff is

not entitled to summary judgment on defendants' liability for violation of Labor Law§ 241(6).

C.P.L.R. § 3212(b) and (e).

V. PLAINTIFF'S CLAIMS BASED ON NEGLIGENCE AND LABOR LAW§ 200

Where a hazardous condition on the construction site caused plaintiffs injury, plaintiff

need show only that defendants caused or had actual or constructive notice of the condition and

had sufficient control over the area to correct or warn of the condition. Defendants utterly fail to

present a prima facie defense to plaintiffs negligence and Labor Law § 200 claims, because

defendants demonstrate neither an absence of actual or constructive notice of a hazardous work

site, Bradley v. NYU Langone Hosps., 223 A.DJd 509, 510-11 (1st Dep't 2024); Simo v. City

of New York, 205 A.D.3d 508,509 (1st Dep't 2022); Padilla v. Touro Coll. Univ. Sys., 204

A.D.3d 415,416 (1st Dep't 2022); Lopez v. City of New York, 203 A.D.3d 405,405 (1st Dep't

2022), nor lack of control over the excavation of the hole that left loose material around the hole

capable of sinking into it. Alberto v. DiSano Demolition Co .• Inc., 194 A.D.3d 607,609 (1st

Dep't 2021); Lemache v. MIP One Wall St. Acquisition, LLC, 190 A.D.3d 422,423 (1st Dep't

2021); Taylor v. Port Auth. ofN.Y. & N.J., 176 A.D.3d 475,476 (1st Dep't 2019). To the

contrary, Tutor Perini created the dangerous condition that caused plaintiffs injury. Lindsay v.

CG Maiden Member. LLC, 213 A.D.3d 604,605 (1st Dep't 2023). McNerney testified further

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that he, the project superintendent, and three or four subordinate superintendents each exercised

Tutor Perini's authority to walk through and inspect the construction site daily. Four Tutor

Perini field engineers also were on the site daily and responsible for ensuring that any areas that

required testing, such as for stability, were tested. Finally, Tutor Perini's safety manager was

responsible for ensuring that the entire site was safe and in compliance with the regulations

under the federal Occupational Safety and Health Act (OSHA). Therefore all these supervisory

personnel surely observed the hole and the loose material·around the hole and, had they

inspected it closely, likely would have felt the unstable, insecure ground underfoot. Even if the

instability was not palpable, as experienced construction site supervisors, they surely knew the

hazards that a hole in that condition posed. Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d at

352-53; Lemache v. MIP One Wall St. Acquisition, LLC, 190 A.D.3d at 423-24; Matter of New

York Asbestos Litig .. 146 A.D.3d 461, 461-62 (1st Dep't 2017). Yet Tutor Perini allowed Five

Star Electric' s workers to work around the hole without any protection or warning.

The site owner MTA-Long Island's witness David Cannon was chief procurement

officer and senior director of the MTA Construction and Development Company, incorporated

and formed under the MTA, when plaintiff worked on the rail yard construction project. Cannon

testified at his deposition that he visited the project occasionally and that the MTA contracted

with a nonparty to supervise the construction site daily on MTA-Long Island Railroad's behalf.

Cannon visited the project irregularly for meetings, to check its progress and to negotiate change

orders, claims, or disputes. He admitted, however, that he did not know whether anyone else

from MTA - Long Island Railroad visited the project more regularly. He did not recall ever

observing the location of plaintiffs injury, but never testified that no one from MTA-Long

Island Railroad ever observed that location or that the MTA's contractor did not report the

hazardous condition around the hole to MTA-Long-Island Railroad. Nor does plaintiff present

any other evidence of this defendant's presence at the construction site or its participation in

excavating or leaving loose material around the hole into which he fell.

In sum, after Tutor Perini excavated the hole and left loose, rocky soil around the hole,

defendants failed to shore up or compact the soil to prevent it from collapsing into the hole,

carrying plaintiff, when Tutor Perini, if not MTA - Long Island Railroad as well, knew work

was to be performed in the area. Defendants further failed to give any warning to stay a safe

distance from the hole.

These failures violated federal OSHA regulations. Defendants' violations of federal

regulations are not a basis for liability under Labor Law§ 241(6), Alberto v. Di Sano Demolition

Co .• Inc., 194 A.D.3d at 608, but are evidence of their negligence that defendants have not

rebutted. Ganci v. Port Auth. Trans-Hudson Cor,p., 258 A.D.2d 386,386 (1st Dep't 1999);

Gammons v. City of New York, 109 A.D.3d 189, 201-202 (2d Dep't 2013); Murdoch v. Niagara

Falls Bridge Commn., 81 A.D.3d 1456, 1457 (4th Dep't 2011); Khan v. Bangla Motor & Body

Shop, Inc., 27 A.D.3d 526, 528-29 (2d Dep't 2006). Although OSHA governs an employer's

conduct toward its own employees, defendants are also liable under OSHA for their conduct that

affected Five Star Electric' s employees "engaged in a common undertaking" on the construction

site. Barzaghi v. Maislin Transp .. 115 A.D.2d 679,684 (2d Dep't 1985); Flores v. Infrastructure

Repair Serv .• LLC, 52 Misc. 3d 664,670 (Sup. Ct. N.Y. Co. 2015); Brennan v. Occupational

Safety & Health Review Commn., 513 F.2d 1032, 1038 (2d Cir. 1975). See Universal Constr.

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Co., Inc. v. Occupational Health & Review Commn., 182 F.3d 726, 728 (10th Cir. 1999); United

States v. Pitt-Des Moines, Inc., 168 F.3d 976, 982-83 (7th Cir. 1999). 29 U.S.C. § 654(a)(2)

requires every employer to comply with the regulations under OSHA for the benefit of all

employees on the work site, "even employees of another employer," Universal Constr. Co., Inc.

v. Occupational Health & Review Commn., 182 F.3d at 728; "regardless of whom in a given

workplace is threatened by non-compliance," United States v. Pitt-Des Moines, Inc., 168 F.3d at

982; and without limitation to instances where a violation of a regulation exposes the employer's

own employees to a hazard. Flores v. Infrastructure Repair Serv., LLC, 52 Misc. 3d at 671;

Brennan v. Occupational Safety & Health Review Commn., 513 F.2d at 1038.

Plaintiff shows that Five Star Electric's employees were engaged in a common

undertaking with defendants on the construction project. Defendants do not contend to the

contrary. Cannon testified that Five Star Electric was "part of the Tutor Perini Corporation

family," either a subsidiary of or wholly owned by Tutor Perini. Aff. of David T. Kuk, Ex. K,

NYSCEF Doc. 99, at 29. MTA-Long Island Railroad awarded Tutor Perini the contract for the

project and reviewed all the subcontractors Tutor Perini hired, including Five Star Electric,

which MTA-Long Island Railroad found technically qualified and responsible and accepted on

the project. Therefore plaintiff may rely on defendants' violations of OSHA regulations to

establish their breach of a duty of care to him.

Plaintiff claims violations of29 C.F.R. §§ 1926.6510)(2) and (k)(l) and (2) and

1926.652(a)(l ). While defendants maintain no law requires that excavations less than six feet

deep be guarded, the federal regulations on which plaintiff relies require other protections not

provided here. Section 1926.6510)(2) requires that excavated and other materials be kept at least

two feet from the edge of an excavation or that retaining devices prevent such materials from

falling into the excavation. Section 1926.651(k)(l) and (2) require a competent person's daily

inspections of excavations and adjacent areas to check for potential cave-ins or other hazards

and, if a competent person finds a potential cave-in or other hazard, that employees be removed

from the hazardous area. Finally,§ 1926.652(a)(l) requires that employees in an excavation be

protected from cave-ins by a protective system such as shoring, shielding, benching, or sloping.

This final regulation, like 12 N.Y.C.R.R. § 23-4.2(a), applies to and is intended to protect

employees inside an excavation, but is inapplicable to employees like plaintiff who admits he

was not in an excavation. Tutor Perini, however, admits that it neither kept excavated or other

materials at least two feet from the edge of the excavation, nor used retaining devices to prevent

such materials from falling into the excavation where plaintiff fell, in violation of 29 C.F .R. §

1926.6510)(2). The evidence further establishes that Tutor Perini either failed to conduct daily

inspections by a competent person of the excavation and adjacent area to check for potential

cave-ins or other hazards or that a competent person found a potential cave-in or other hazard,

but Tutor Perini failed to remove employees from the hazardous area, in violation of29 C.F.R. §

1926.651(k)(l) or (2). Defendants fail to show that the construction site owner, MTA-Long

Island, did not commit the same violations, although plaintiff fails to show that it did.

Thus defendants are not entitled to summary judgment dismissing plaintiffs negligence

and Labor Law§ 200 claims. C.P.L.R. § 3212(b). Plaintiff, on the other hand, establishes Tutor

Perini' s negligence and liability under Labor Law § 200 and thus is entitled to summary

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judgment on Tutor Perini's liability for negligence and violation of Labor Law§ 200. C.P.L.R. §

3212(b) and (e). A factual issue remains whether the owner MTA-Long Island Railroad

received actual or constructive notice of the hazardous hole or played any part in the excavation

or maintenance of the area afterward, since neither side fully address this defendant's conduct in

this regard. C.P.L.R. § 3212(b).

VI. CONCLUSION

For all the reasons explained above, the court grants defendants' motion for summary

judgment to the extent of dismissing plaintiff's Labor Law § 241 (6) claim, but otherwise denies

defendants' motion. C.P.L.R. § 3212(b) and (e). The court also grants plaintiff's cross-motion

for summary judgment on defendants' liability for violation of Labor Law§ 240(1) and on

defendant Tutor Perini Corporation's liability for negligence and violation of Labor Law§ 200,

but otherwise denies his cross-motion. C.P.L.R. § 3212(b) and (e). If plaintiff pursues the

claim, a trial will determine MTA-Long Island Railroad's liability for negligence and violation

of Labor Law§ 200, as well as his damages due to defendants' violation of Labor Law§ 240(1),

Tutor Perini's negligence and violation of Labor Law§ 200, and MTA-Long Island Railroad's

liability for negligence and violation of Labor Law § 200, if any. Accordingly, it is

ORDERED that defendants' motion for summary judgment is granted only to the extent

of that dismissing plaintiff's Labor Law§ 241(6) claim, but is otherwise denied; and it its further

ORDERED that plaintiff's cross-motion for summary judgment is granted only to the

extent that plaintiff is awarded summary judgment on defendants' liability for violation of Labor

Law§ 240(1) and on defendant Tutor Perini Corporation's liability for negligence and violation

of Labor Law § 200 but is otherwise denied.

This constitutes the Decision and Order of the Court.

3/9/2026

DATE

~

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

151318/2021 LOSURDO, ERIK vs. TUTOR PERINI CORPORATION ET AL Page 8 of8

Motion No. 004

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