The opinion
Sorto v SCI Funeral Servs. of N.Y., Inc.
2026 NY Slip Op 30670(U)
February 25, 2026
Supreme Court, New York County
Docket Number: Index No. 160601/2021
Judge: Lyle E. Frank
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.1606012021.NEW_YORK.001.LBLX036_TO.html[03/09/2026 3:45:54 PM]
FILED: NEW YORK COUNTY CLERK 02/26/2026 11:52 AM INDEX NO. 160601/2021
NYSCEF DOC. NO. 184 RECEIVED NYSCEF: 02/25/2026
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. LYLE E. FRANK PART 11M
Justice
---------------------------------------------------------------------------------X INDEX NO. 160601/2021
SAUDY ADONAY ALBERTO SORTO,
MOTION DATE 08/05/2025
Plaintiff,
MOTION SEQ. NO. 004
-v-
SCI FUNERAL SERVICES OF NEW YORK, INC, SERVICE
CORPORATION INTERNATIONAL, NEW YORK FUNERAL DECISION + ORDER ON
CHAPELS, LLC D/B/A RIVERSIDE MEMORIAL CHAPEL, MOTION
Defendant.
---------------------------------------------------------------------------------X
NEW YORK FUNERAL CHAPELS, LLC D/B/A RIVERSIDE Third-Party
MEMORIAL CHAPEL Index No. 595072/2022
Plaintiff,
-against-
SKYLINE RESTORATION INC.
Defendant.
--------------------------------------------------------------------------------X
NEW YORK FUNERAL CHAPELS, LLC D/B/A RIVERSIDE Second Third-Party
MEMORIAL CHAPEL Index No. 595771/2022
Plaintiff,
-against-
Defendant.
--------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 004) 126, 127, 128, 129,
138, 139, 141, 142, 180, 182, 183
were read on this motion to/for JUDGMENT - SUMMARY .
Upon the foregoing documents, the motion is granted in part.
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YORK, INC ET AL
Motion No. 004
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Background
This motion arises out of a Labor Law case involving a fall from a scaffold platform.
Plaintiff is a painter/mechanic, and on July 8, 2021, he was working on a construction site on
premises owned by SCI Funeral Services of New York, Inc. (“SCI” or “Owner”). It was
Plaintiff’s understanding that while he was working there, he was employed by Skyline
Restoration s/h/b, Inc. (“Skyline” or “Employer”). Skyline disputes this allegation and claims
that the subcontractor Magella Construction Corp. (“Magella”) is the true employer. On July 8th,
Plaintiff and his now-deceased coworker Roberto Rivas were cleaning an area of scaffold. He
tripped over several bricks that had been removed by workers or had fallen from the building.
Plaintiff claims that Mr. Rivas was supposed to place the bricks in a removal bag but that this
had not been done.
Relevant Procedural Background
Plaintiff filed this underlying proceeding in November of 2021. That January, Riverside
filed an answer with cross-claims. Riverside has filed a second third-party complaint asserting
claims against OneTeam, who has answered and in turn filed a third third-party complaint
against Magella. Magella has been properly served but has failed to answer or appear in this
action. The Workers Compensation Board has issued a determination stating that Skyline is the
Plaintiff’s employer. This determination was affirmed on appeal.
Standard of Review
Under CPLR § 3212, a party may move for summary judgment and the motion “shall be
granted if, upon all the papers and proof submitted, the cause of action or defense shall be
established sufficiently to warrant the court as a matter of law in directing judgment in favor of
any party.” CPLR § 3212(b). Once the movant makes a showing of a prima facie entitlement to
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Motion No. 004
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judgment as a matter of law, the burden then shifts to the opponent to “produce evidentiary proof
in admissible form sufficient to establish the existence of material issues of fact which require a
trial of the action.” Stonehill Capital Mgt. LLC v. Bank of the W., 28 N.Y.3d 439, 448 [2016].
The facts must be viewed in the light most favorable to the non-moving party, but conclusory
statements are insufficient to defeat summary judgment. Id.
Discussion
In this motion, Riverside and Skyline (collectively, the “Movants”) move for summary
judgment in their favor, dismissing the complaint and granting them contractual indemnification
against OneTeam and Magella (or, alternatively, a default judgment against Magella). Plaintiff
opposes the motion, and OneTeam partially opposes the motion to the extent that it seeks
contractual indemnification against them. For the reasons that follow, the motion is granted to
the extent that it seeks dismissal of the Labor Law § 240 claim in its entirety and dismissal of the
claims asserted by Plaintiff against his employer Skyline, and the motion is otherwise denied.
The Labor Law § 241(6) Claim Is Not Barred by the Integral to the Work Doctrine as That
Doctrine Has Not Been Shown to Apply Here
Plaintiff has asserted a claim against the Movants pursuant to Labor Law § 241(6). This
provision states that all construction areas “shall be so constructed, shored, equipped, guarded,
arranged, operated and conducted as to provide reasonable and adequate protection and safety to
the persons employed therein.” Movants seek summary judgment dismissing Plaintiff’s § 241(6)
claim on the grounds that this provision does not apply to a worker injured by bricks that were
removed from a jobsite if the bricks in question were an inherent or integral part of the work.
Plaintiff opposes this portion of the motion and argues that there are issues of fact going to
whether the bricks were integral to the work.
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Motion No. 004
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Movants rely on a Second Department case for the proposition that if the bricks were
integral to the work, there could be no 241(6) liability. Smith v. New York City Hous. Auth., 71
A.D.3d 985 [2nd Dept. 2010]. They do not cite to any First Department or Court of Appeals
cases on this issue. Plaintiff cites to a recent Court of Appeals case as controlling. Bazdaric v.
Almah Partners LLC, 41 N.Y.3d 310 [2024]. In Bazdaric, the plaintiff was a painter who slipped
on an unsecured plastic covering he had placed on the jobsite. Id., at 314. The Court of Appeals
held that the plaintiff was entitled to summary judgment on his § 241(6) claim because the
integral to the work doctrine did not apply. Id., at 320. The court stated that this doctrine only
applies “when the dangerous condition is inherent to the task at hand, and not, as is the case here,
when a defendant or third party’s negligence created a danger that was avoidable without
obstructing the work or imperiling the worker.” Id. As there the plaintiff had established that
there were other, safer methods to prevent paint from falling on machinery, the integral to the
work doctrine did not apply because a condition is not integral to the job if “a safer alternative
would have accomplished the same goal.” Id., at 321.
Here, Movants have not shown that there are no disputed areas of fact going to whether
the brick disposal method employed on the site in question did not have a safer alternative.
Therefore, under the Bazdaric precedent, it has not been shown that the integral to the work
doctrine applies. That bricks naturally fell from the façade as part of the work being performed
does not make the condition of bricks laying on the ground integral to the work. Rather, it would
need to be established that there was no safer alternative to the brick disposal method employed
that day in order for the 241(6) claim to be barred. As there are disputed areas of fact going to
how the bricks were supposed to be disposed of and whether there were any safer methods
available, this claim cannot be dismissed under the integral to the work doctrine. See also Tighe
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Motion No. 004
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v. Hennegan Constr. Co., Inc., 48 A.D.3d 201, 202 [1st Dept. 2008] (holding that debris that
accumulated as part of the demolition work was not an integral part of the work performed);
Lourenco v. City of New York, 228 A.D.3d 577, 580 [1st Dept. 2024].
The Movants Have Not Established Prima Facie Entitlement to Summary Judgment Dismissing
the Labor Law § 200 Claim
Plaintiff has pled a claim under Labor Law § 200. This provision states that all places that
the chapter applies to are to be “so constructed, equipped, arranged, operated, and conducted as
to provide reasonable and adequate protection to the lives, health and safety of all persons
employed therein.” It codifies the common law duty to provide employees with a safe workplace
but has an exception for “hazards which are part of or inherent in the very work which the
contractor is to perform.” Gasper v. Ford Motor Co., 13 N.Y.2d 104, 110 [1963]. Movants seek
summary judgment dismissing the Labor Law § 200 claim asserted against them on the grounds
that the hazard was inherent to the work Plaintiff was hired to perform, and/or it was readily
observable. Whether a condition was readily observable is determined by reference to the
worker’s age, intelligence, and experience. See, e.g., Bombero v. NAB Constr. Corp., 10 A.D.3d
170, 171 [1st Dept. 2004].
Plaintiff in opposition argues that there are issues of fact here going to whether the debris
in question constituted a dangerous condition and if the Movants had notice. If an injury arises
from “the condition of the workplace created by or known to the contractor, rather than the
method of plaintiff’s work”, then it is not necessary to establish supervision and control over the
plaintiff. Murphy v. Columbia Univ., 4 A.D.3d 200, 202 [1st Dept. 2004]. Furthermore, there are
triable issues of fact going to actual or constructive notice of a condition when a party does not
introduce testimony stating lack of actual knowledge or evidence going to constructive
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Motion No. 004
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knowledge such as a cleaning or maintenance schedule. Lourenco, at 583. Movants argue that
there is no proof of their notice. But while this might suffice in order to oppose a motion for
summary judgment by Plaintiff, this not sufficient in order to establish a prima facie entitlement
to summary judgment dismissing a § 200 claim. Therefore, the Movants have not met their
burden for summary judgment dismissing the Labor Law § 200 claim.
Labor Law § 240 Claim Should Be Dismissed
The Movants seek to dismiss Plaintiff’s Labor Law § 240 claim as unavailable in this
matter. This portion of the Labor Law covers scaffolding and states that scaffolds must be “so
constructed, placed and operated as to give proper protection to a person so employed.” This
scaffold law was intended to prevent against “elevation-related hazards” and is applied when a
scaffold 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” (emphasis in
original). Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500 – 01 [1993]. The Movants
argue that this provision of the Labor Law is inapplicable here, where the Plaintiff tripped over
debris on a scaffold. In opposition, Plaintiff does not address the arguments related to dismissal
of the § 240 claim. Therefore, dismissal of this claim is proper as the Movants have established
prima facie entitlement to summary judgment.
Workers’ Compensation Law Bars Both the Claims Asserted Here Against Skyline by Plaintiff
and Default Judgment Against Magella
The Movants argue that New York’s Workers’ Compensation Law bars a suit against
Skyline, Plaintiff’s employer. They also argue that Skyline is not Plaintiff’s employer, and that
the Workers’ Compensation Board erred in so finding, moving for a default judgment against
Magella (the entity they claim is Plaintiff’s actual employer) to recover the sums paid under
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Motion No. 004
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Workers’ Compensation. In opposition, Plaintiff points to the obvious and inherent inconsistency
in the Movants’ position. Because Plaintiff has already been paid from the Workers’
Compensation Board due to the finding there that Skyline was his employer, the claims asserted
here against that employer must be dismissed. See N.Y. Work. Comp. § 29. But while Magella
has failed to answer or appear in this action, to the extent that Movants also seek a default
judgment against Magella for sums paid under Workers’ Compensation Law on a theory that
Magella is Plaintiff’s employer, such a request is denied for failure to establish prima facie
entitlement to such relief. Movants cannot have it both ways – either the claims against Skyline
are dismissed because as Plaintiff’s employer the only remedy is the Workers’ Compensation
Law, or Skyline is entitled to indemnification against Magella because Magella was Plaintiff’s
employer.
The Delay in Medical Treatment Does Not Defeat Plaintiff’s Claims
The Movants argue that because Plaintiff did not seek medical treatment for 41 days after
the incident in question, his claims should be dismissed for failure to establish causation.
Plaintiff in opposition points to the lack of any medical testimony offered by the Movants going
to causation, the finding by Plaintiff’s doctors that his injuries were caused by the incident, and
the findings by the Workers’ Compensation Board that the injuries were caused by the incident.
The Movants have failed to establish prima facie entitlement to dismissal on this ground, as they
have offered nothing other than counsel’s conjecture that such a delay defeats any finding of
causation.
Granting Contractual Indemnification Against OneTeam Would Be Premature
Movants also move for summary judgment on their claim for contractual indemnification
against OneTeam, who opposes this branch of the motion. The Movants argue that should it be
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determined that they are liable under Plaintiff’s Labor Law claims, then they are entitled to
contractual indemnification against OneTeam because there is no evidence here establishing
their own negligence. Under the terms of the contractual indemnification provision, OneTeam
would only be required to indemnify the Movants if it is determined that they were not negligent.
OneTeam points to the issues of fact going to the Movants’ negligence and argue that granting
contractual indemnification would be premature at this point. As addressed above, there are
issues of fact going to the extent that the Movants’ were negligent in creating the debris
conditions. Under these circumstances, granting Movants contractual or common-law
indemnification against OneTeam would be premature. See, e.g., Spielmann v. 170 Broadway
NYC LP, 187 A.D.3d 492, 494 [1st Dept. 2020]. Therefore, that portion of the motion should be
denied. Accordingly, it is hereby
ADJUDGED that the motion for summary judgment dismissing Plaintiff’s claims is
granted as to the fourth cause of action in its entirety and as to the claims asserted against
defendant Skyline Restoration, Inc., and denied as to the rest; and it is further
ADJUDGED that the motion for default judgment against third-party defendant Magella
Construction Corp. is denied; and it is further
ADJUDGED that the portion of the motion seeking indemnification against OneTeam is
denied as premature.
2/25/2026
DATE LYLE E. FRANK, J.S.C.
CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
□ □
GRANTED DENIED X GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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Motion No. 004
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