The opinion
Figueiredo v New Line Structures Inc.
2026 NY Slip Op 30705(U)
February 24, 2026
Supreme Court, Kings County
Docket Number: Index No. 514948/20
Judge: Steven Z. Mostofsky
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.5149482020.KINGS.001.LBLX000_TO.html[03/10/2026 3:45:52 PM]
FILED: KINGS COUNTY CLERK 02/27/2026 09:34 AM INDEX NO. 514948/2020
NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 02/27/2026
At an IAS Term, Part 9 of the Supreme Court of
the State of New York , held in and for the Coun ty
of Kings, at the Courthouse, at !~d ams Street,
Brooklyn, ew York, on the ~tla y of February,
2026.
PRE S ENT :
HON. STEV EN Z. MOS TOFS KY,
Justice.
----------------------------------------------------X
WESL EY F IGUEI REDO ,
Plain tiff, DECI SION AND ORD ER
-against-
Index No. 514948/20
EW LINE STRUCTUR ES INC., and
· Mot. Seq. Nos. 5-6
BOP GREE NPOINT D, LLC ,
Defendants.
----------------------------------------------------X
The following e-filed papers read herein:
NYS CEF Doc Nos .:
Notice of Motion, Affirmations, and Exhibits Anne
xed_ __ 73-85; 94-103
Affirmations in Opposition and Exhibits Annexed _
_ _ __ 107-111; 112-116
Reply Affirmations._ _ _ _ _ _ _ _ _ _ _
_ _ __ 119; 120
In this actio n to recov er dama ges for perso nal
injuries, plain tiff Wesl ley Figu eired o
(incorrectly suing herei n as Wesl ey Figu eired o)
move d for parti al summ ary judg ment on the
issue of liability on his Labo r Law § 241 (6) claim
, as predi cated on the alleg ed viola tions of
Industrial Code § 23-1 .7 (d) and (e) (2), wher
eas defen dants New Line Struc tures &
Deve lopm ent LLC , doin g busin ess as New Line
Struc tures (inco rrect ly sued herein as New
Line Structures Inc.) (NLS), and BOP Gree npoin
t D, LLC (BOP ; colle ctive ly with NLS ,
defendants), cross -mov ed for summ ary judg ment
dism issin g the entir ety of plain tiffs Labo r
Law § 241 (6) claim , as predi cated on the alleg ed
viola tions of Indu strial Code §§ 23-1.5 , 23-
1.7 (d) and (e) (2), 23-2. 1 , 23-2 .2 , and 23-3 .3.
[* 1] 1 of 8
FILED: KINGS COUNTY CLERK 02/27/2026 09:34 AM INDEX NO. 514948/2020
NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 02/27/2026
Background
Plaintiff pleads causes of action premised on (among other legal theories) Labor Law
§ 241 (6), as predicated on the alleged violations of Industrial Code§§ 23-1.5, 23-1.7, 23-2.1,
23-2.2, and 23-3.3, 1 arising from the injuries he allegedly sustained, while working in the
basement of a building under construction located at 22 I West Street in the Greenpoint section
of Brooklyn, New York (the building). Defendant NLS was the construction manager for the
project, and defendant BOL was the owner of the building. NLS hired non party subcontractor
Highbury Concrete, Inc. (Highbury), which employed plaintiff as a carpenter on the project.
At the time and place of the accident (July 13, 2020), plaintiff was carrying on his right
shoulder a metal form measuring eight feet in length and two feet in width from one area of the
basement to another. With the metal form obstructing his vision, plaintiff "did not see the
plywood," as he "slipped [and fell] on [the] plywood form" (with "another plywood [lying]
underneath") on the basement floor. Plaintiff testified that the "piece" of plywood on which he
slipped and fell was part of "a pile of debris," which "was all spread out on the ground [of the
basement floor]," in such a way and he would not have "be[en] able to avoid it." Somewhat at
odds with the foregoing, plaintiff testified that: (1) "[i]f [he] had seen the plywood on the
ground, [he] would have avoided it"; (2) "[t]here was no . . . pile of debris [in the exact spot
where he slipped; rather], [the debris] was all spread oul on the ground;" and (3) "[the pile]
was .. . [lying on the basement floor] for a long time" and "had no function [or purpose]. " 2
1 Verified Complaint, dated August
14, 2020, 1 13; Verified Bill of Particulars, dated December 4, 2020, ~~ 21-22
(NYSCEF Doc Nos. 75 and 77, respectively).
2 Plaintiff's EBT transcript, page 113, lines 18-19
; page 114, lines 5-6 and 11; page 115, lines 4-5; page 116, lines 2-4 and
8-9; page 117, lines 16-17; page 118, lines 4-5 and 10-11; page 119, li nes 16- 18 and 22 ; page 121, lines 4-5 ; page 122,
lines 22-24; page 123, lines 6-7, 11- 12, and 23-24 (NYSCEF Doc No. 79) .
2
[* 2] 2 of 8
FILED: KINGS COUNTY CLERK 02/27/2026 09:34 AM INDEX NO. 514948/2020
NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 02/27/2026
Another inconsistency in his pretrial testimony 1s the distance which he
allegedly walked
before his slip and fa] I. At his initial EBT session, plaintif f testified that
he walked "about
maybe ... ten steps" "when [he] made the left [turn]" and "there was some
plywoo d on the
floor; and it was [there] that [his accident] happen ed." At his subseq
uent EBT session ,
however, he testified that "as soon as [he] picked . . . up [the metal fom1 which
he placed over
his right shoulder] and move[d] [his] other foot, [he] slipped [and fcll]." 3
When questioned
about this discrepancy at his subseq uent EBT session, plaintif f denied walkin
g "approximately
ten steps" before his accident. Rather, he clarified that he "walke d and turned
to the left[,] and
it was [there] when he fell," meanin g that the site of his acciden t was "[n]ot
very near" to the
start of his walk. 4 Consis tent with his thus-clarified testimony that he
walked only a short
distance before the accident, plainti ff noted (at his initial EBT session ) that
"[w]he n [he] was
removing the [metal] form, [he] was standing on regular concret e," but that
" [t]here was a lot
of plywood that ... had been left there." 5
As the result of the acciden t, plaintif f fell on his buttock s in the sitting
position, still
holding onto the metal form he had been carrying. 6 Althou gh he testifie
d that he had not
worked at the job site since his Monda y, July 13, 2020 , accident, the timeshe
ets which were
When important testimony of the only deposed, non-English-speaking witness
to the accident is taken with the aid of
an interpreter (here, a Brazilian-Purtuguese translator), his or her relevant
answers must be accurately reproduced in the
court 's decision. Plainti!T' s pretrial testimony as to how his accident happened
is the only admissible evidence in this
regard. The translated affidavit of plaintiff' s coworker Janes Matos De Oliveira
is inadmiss ible because the translator's
affidavit is that of the manager of the translation services, rather than
of the individual who actually translated
De O/iveira's affidavit (see Legal Language Services, October 19, 2022, "To
Whom It May Concern" leuer stating, in
relevant part, "Maria Victoria Portuguez, Manager with this company, certifies
that Felipe Cerdeira, who translated this
document, is fluent in Portuguese and standard North American English [,] and
qualified to trans lale" (part of NYSCEF Doc
No. 80). Further, Maria Victoria Portuguez, rather than Felipe Ccrdeira, signed
the translator's affidavit.
3 Compare Plaintiff's EBT
transcript, page IO I, lines 9-12 and 20-23 (the initial EBT session), with page
J23, lines 21-24
(the subsequent EBT session).
4 Plaintiff's EBT
transcript , page 124, line 25 to page 125, line 7; page 125, lines 15-19.
5 Plaintiff' s EBT transcript,
page 99, lines 17-19.
6 Plaintiff' s EBT transcript
, page 128, line 19 to page 130, line 20.
J
[* 3] 3 of 8
FILED: KINGS COUNTY CLERK 02/27/2026 09:34 AM INDEX NO. 514948/2020
NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 02/27/2026
introduced for identification at his pretrial deposition reflected
that he was working at the job
site (at least, on the books ) for an additional five days of Tuesd
ay through Friday of July 14,
2020 to July 17, 2020, as well as on the following Monday,
July 20, 2020. 7 As he conceded in
his pretrial testimony, "[o]ver there [i.e., at this job site,] it was
a mess, everyone would punch
the [time] card for anyone [else]. " 8
When he reached his home m New Jersey, plaint iff report
ed the accident to his
supervisor, either by cell phone or by text. 9 Currently,
plaint iff is receiving worke rs'
compensation benefits from Highbury for his accident-related,
orthopedic injuries.
Approximately one month after the accident, on August 14,
2020, plaint iff commenced
this action. Defendants joined issue. After discovery was comp
leted and a note of issue was
filed, plaint iff timely moved for partial summary judgm ent
on the issue of liability on his
Labor Law§ 241 (6) claim, as predicated on the alleged violat
ions oflnd ustria l Code § 23-1.7
(d) and (e) (2). Thereafter and beyon d the 60-day, post-Note
of Issue deadline for moving for
summary judgment, 10 defendants belatedly cross-moved for
summ ary judgm ent dismissing the
entirety of plaint iffs Labor Law § 241 (6) claim. On Febru
ary 5, 2026, the Court reserved
decision on the instant motion and cross-motion.
.}
Discussion
Contrary to defen dants ' contention, plaint iffs failure to specifically identify
subsections (d) and (e) (2) of Industrial Code § 23-1.7
in his complaint and/or bill of
7 Plaintif f's EBT
transcript, page 52, line 20 to page 60, line 10.
8 Plaintif f's EBT transcri
pt, page l35, lines 12-13.
9 Plaintif f's EBT transcri
pt, page 136, lines 20-22; page 136, line 24 to page I 37, line
3; page 137, lines 23-24.
10 See Kings County
Supreme Court Uniform Civil Tenn Rules, Part C, 1 6.
4
[* 4] 4 of 8
FILED: KINGS COUNTY CLERK 02/27/2026 09:34 AM INDEX NO. 514948/2020
NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 02/27/2026
particulars is not fatal to his claims (see Sheng Hai Tong v K&K
7619, Inc., 144 AD3d 887,
889 [2d Dept 2016]; Doto v Astori a Energy II, LLC, 129 AD3d
660, 664 [2d Dept 2015]).
Plaintiff's belated assertion of the alleged violations of subsections
(d) and (e) (2) oflndu strial
"
Code § 23-1.7 can be properly considered, since they involve no new
factual allegations, raise
no new theories of liability, and cause no prejudice or surpris
e to defendants. Rather,
defendants were put on sufficient notice that the Labor Law § 241
(6) claim, as predicated on
the alleged violations of Industrial Code § 23-1.7 (d) and (e) (2), 11
related to the slipping and
tripping hazards through plainti ff's deposition testimony and his
bill of particulars (see
Simmons v City of New York, 165 AD3d 725, 729 [2d Dept 2018];
Klimowicz v Powell Cove
Assoc., LLC, 111 AD3d 605, 607 [2d Dept 2013]).
On the merits, plaint iff is not entitled to partial summary judgm
ent on the issue of
liability on his Labor Law § 241 (6) claim, as predicated on the alleged
violation oflndu strial
Code § 23-1.7 (d). Conversely, defendants are entitled to summ
ary judgm ent dismissing
plaintiff's Labor Law§ 241 (6) claim, as predicated on the alleged
violation oflndu strial Code
§ 23-1.7 (d).
Industrial Code § 23-1.7 (d) requires 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." In particular, "[i]ce, snow,
water, grease and any
other foreign substance which may cause slippery footing shall be remov
ed, sanded or covered
to provide safe footing" (id.) (emphasis added) . Here, Industrial
Code § 23-1.7 (d) is
inapplicable because the plywo od and other debris on which plainti
ff slipped was not the type
11 As noted, plaintiff alleged in
his complai nt and bill of particulars a violation of (among others)
albeit without specifying the particular subsecti ons at issue. Industrial Code § 23-1.7,
5
[* 5] 5 of 8
FILED: KINGS COUNTY CLERK 02/27/2026 09:34 AM INDEX NO. 514948/2020
NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 02/27/2026
of foreign s~bstance contemplated by this provision (see Verdi v SP Irving
Owner, LLC,
227 AD3d 932, 934, 936 [2d Dept 2024]; Salinas v Barney Skanska Const.
Co., 2 AD3d 619,
622 [2d Dept 2003]). 12
Further on the merits, neither side is entitled to summary judgme nt on plainti
ffs Labor
Law§ 241 (6), as predicated on the alleged violation oflndu strial Code§ 1.7
(e) (2). Industrial
Code § 23-1.7 (e) (2) requires that "[t]he parts of floors, platforms and similar
areas where
persons work or pass . . . be kept free from accumulations of dirt and debris
and from scattered
tools and materials and from sharp projections insofar as may be consist
ent with the work
being performed." There is a question of fact as to whether the plywood
on which plaintif f
slipped 13 was created by (and was, by extension, integral to) the form -strippi
ng work he and
his coworkers were performing, or were preparing to perform (see Co/lay
v Press Builders,
Inc., 2025 WL 2693573 [Sup Ct, Kings County 2025, Devin Cohen, J.]). As
noted, plaintif f
testified that "[t]here was a lot of plywood that ... had been left" in (or near)
the area where he
was removing the metal form. 14
12 C'f Bazdaric v Almah Partners
LLC, 41 NY3d 310, 319 (2024) (a slippery plastic covering in the escalator
plaintiff was assigned to paint was a substance "foreign" to the escalator and area where
was not integral to his paint-job assignment);
Gomez v Tilden Estates, LLC, 24 l AD3d 791 , 796 (2d Dept 2025) ("In light
of the plaintiff's testimony that the stairs were
'slippery' due to the dust on the steps, the defendants fai led to eliminate triable
issues of fact as to whether the dust on the
steps created a slippery condition within the meaning of22 NYCRR 23-1.7
[d].") (emphasis added). Notably, in deciding
Verdi (cited in the text above), the Second Judicial Department did not address
the Court of Appeals' earlier decision in
Bazdaric (see Villa-Farez v 840 Fulton, LLC, 82 Misc 3d 125l[A], 2024
NY Slip Op 5059l[U ], *3 n 3 [Sup Ct, Kings
County 2024, Maslow, J.]) . In Villa-Farez, Justice Aaron Maslow of this court
found (at pages *3-4) "a factual issue as to
whether the piece of wood on whkh plaintiff claims to have slipped was the result
of ongoing work being performed by the
carpenters, and thus whether the wood may be deemed integral to the work
being performed," after the court credited
plaintiff's foreman's pretrial testimony that "the carpenter's drywall taping work
was performed between the time he [the
foreman] left the building to check on another job[]site and when he returned
to the building following the accident and
observed drywall debris on the stairs ."
13 The fonner distinction between
''tripping" and "slipping" as the respective triggers for the application of§ §
and 23-1.7 (e), was eliminate d by the Court of Appeals in Ruisech v Structure 23-1.7 (d)
Tone Inc., 42 NY3d I 061 , I 065 (2024 ), rearg
denied 43 NY3d 939 (2025).
14 Plaintiff's EBT transcript
, page 99, lines 17-19.
6
[* 6] 6 of 8
FILED: KINGS COUNTY CLERK 02/27/2026 09:34 AM INDEX NO. 514948/2020
NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 02/27/2026
The remaining branch of defenda nts' cross-motion which is for summary judgmen
t
dismissing plaintif fs Labor Law § 241 (6) claim, as predicat ed on the alleged violation
s of
Industrial Code§§ 23-1.5, 23-2.1, 23-2.2, and 23-3.3, is denied as untimely. The issues
raised
in the remainder of defenda nts' cross-motion were not nearly identical to the issues
raised in
plaintiff's timely motion (see Vitale v Astoria Energy II, LLC, 138 AD3d 981,
983-984
[2d Dept 2016]; see also Dojce v 1302 Realty Co., LLC, 199 AD3d 647,650 [2d Dept
2021]).
The court conside red the parties ' remaining contentions and found them either
unavailing or moot in light of its determination .
Accordingly, it is
ORDER ED that plaintiff 's motion for partial summar y judgmen t on the issue of Uability
on his Labor Law § 241 (6) claim, as predicated on the alleged violations of Industria
l Code
§ 23-1.7 (d) and (c) (2) is denied in its entirety; and it is further
ORDER ED that defenda nts' cross-motion for partial summar y judgme nt dismissi
ng
plaintif fs Labor Law § 241 (6) claim, as predicated on the alleged violations of Industri
al
Code§§ 23-1.5, 23-1.7 (d) and (e) (2), 23-2.1, 23-2.2, and 23-3.3 , is granted solely
to the
extent thal plaintif fs Labor Law § 241 (6) claim, as predicated on the alleged violatio
n of
Industiial Code § 23-1.7 (d), is dismissed, and the remaind er of their cross-motion is
denied.
Plaintif fs counsel must electronically serve a copy of this Decisio n and Order with
notice of entry on defenda nts' counsel and electronically file an affidavit thereof
with the
Kings County Clerk.
The parties are reminded of their next scheduled, in person appearance in JCP-1
on
March 30, 2026 at 10 a.m.
7
[* 7] 7 of 8
FILED: KINGS COUNTY CLERK 02/27/2026 09:34 AM INDEX NO. 514948/2020
NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 02/27/2026
The Park Clerk is directed to correct the docket to reflect the correct spelling of
plaintiffs last name as Figueir!_:do in place ofFigueirido.
The above is the court's Decision and Order.
,. /
Hon. Steve ";'"Mostofsky
Justice, Supreme Court
8
[* 8] 8 of 8