Opinion

Clarke v. UWS Prop. Owner, LLC

  • 2026 NY Slip Op 31031(U)
Court
New York Supreme Court, New York County
Filed
Mar 17, 2026
Status
Unpublished
Author
Lynn R. Kotler
Cited by
0 cases
Authority
More cited than 39.7%

The opinion

Clarke v UWS Prop. Owner, LLC

2026 NY Slip Op 31031(U)

March 17, 2026

Supreme Court, New York County

Docket Number: Index No. 156214/2021

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.

file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.1562142021.NEW_YORK.001.LBLX000_TO.html[03/25/2026 3:45:48 PM]

INDEX NO. 156214/2021

NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 03/18/2026

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. LYNN R. KOTLER PART 08

Justice

·--------------·----- -X INDEX NO. 156214/2021

MICHAEL CLARKE, YVONNE CLARKE,

12/05/2025,

MOTION DATE 12/05/2025

Plaintiffs,

- V -

MOTION SEQ. NO. 001 002

UWS PROPERTY OWNER, LLC, BRAVO BUILDERS, LLC,

CAULDWELL WINGATE COMAPNY, LLC, DECISION + ORDER ON

MOTION

Defendants.

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

The following e-filed documents, listed by NYSCEF document number (Motion 001) 43, 44, 45, 46, 47,

48,49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59,60, 74, 75, 76, 77, 78, 79, 80

were read on this motion to/for JUDGMENT-SUMMARY

The following e-filed documents, listed by NYSCEF document number (Motion 002) 61, 62, 63, 64, 65,

66,67,68,69, 70, 71, 72, 73,81, 82

were read on this motion to/for DISMISSAL

This labor law action arises from injuries sustained by plaintiff Michael Clarke on July 1,

2020, while working as a welder for non-party The Moore Group ("Moore") at a construction

project located at 2505 Broadway in Manhattan (the "Premises"). Defendant UWS Property

Owner, LLC ("UWS") owned the Premises and retained defendants Bravo Builders, LLC and

Cauldwell Wingate Company, LLC, which merged in 2019 (together, "Cauldwell"), as the

general contractors for a new residential construction project thereat. Moore was hired as the

foundation and concrete subcontractor for the project. On the date of his accident, Clarke was

working in the basement of the Premises cutting out rakers and walers-temporary structural

support elements previously installed to support the basement excavation-which were no longer

needed after the concrete foundation was poured. He was allegedly injured when a heavy, four-

foot section of I-beam he had cut free fell from a height of approximately six feet, ricocheted off

a piece of equipment, and struck him in the thigh/groin.

Clarke now moves pursuant to CPLR 3212 for partial summary judgment as to liability

on his Labor Law§ 240(1) claim (MOT SEQ 001). Defendants oppose the motion and separately

move pursuant to CPLR 3212 for partial summary judgment dismissing Clarke's negligence and

Labor Law§§ 200 and 241(6) claims (MOT SEQ 002), which motion is in turn opposed by

Clarke. Clarke's motion is granted and defendants' motion is granted in part.

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Motion No. 001 002

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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 of Columbia Univ. in

the City of NY v D'Agostino Supermarkets, 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 of New York, 49 NY2d 557, 562 [1980]; see De Lourdes Torres v Jones, 26

NY3d 742, 763 [2016]).

PLAINTIFF'S MOTION (MOT SEQ 001)

'"Whether a plaintiff is entitled to recovery under Labor Law § 240(1) requires a

determination of whether the injury sustained is the type of elevation-related hazard to which the

statute applies'" (Rivas v Seward Park Haus. Corp., 219 AD3d 59, 63-64 [1st Dept. 2023],

quoting Wilinski v 334 E. 92nd Haus. Dev. Fund Corp., 18 NY3d 1, 7 [2011]). "'[T]he single

decisive question [in this connection] is whether plaintiffs injuries were the direct consequence

of a failure to provide adequate protection against a risk arising from a physically significant

elevation differential"' (id. at 64, quoting Runner v New York Stock Exch., Inc., 13 NY3d 599,

603 (2009]). "This single decisive question 'center[s] around a core premise: that a defendant's

failure to provide workers with adequate protection from reasonably preventable, gravity-related

accidents will result in liability"' (id., quoting Wilinski, 18 NY3d at 7).

Clarke principally relies upon his deposition testimony that, while cutting out rakers and

walers in the basement of the Premises, a heavy, four-foot section ofl-beam he had cut free from

a waler on the wall, which was not secured by any sort of hoist or rigging to hold it in place

and/or control its descent, fell from a height of approximately six feet, ricocheted off a piece of

equipment, and struck him in the thigh/groin. Clarke testified that Moore provided him all the

equipment he used for this job, but that Moore did not provide a "chain fall"-a type of

rigging/hoist-to hold the section ofl-beam and prevent it from falling once it was cut free from

the waler. Clarke further testified that he spoke to a Moore employee about the need for a chain

fall to safely perform the work, that he had been instructed at a prior OSHA training that a chain

fall was necessary when cutting steel at an elevation of six feet or more off the ground, and that

he had previously used a chain fall, prior to his employment with Moore, when doing similar

work to lower cut steel beams down to the ground in a controlled manner. This testimony is

sufficient to demonstrate, prima facie, a violation of Labor Law § 240( 1) (see Linares v City of

New York, 209 AD3d 468,469 [1st Dept. 2022]; Hyatt v Queens W Dev. Corp., 194 AD3d 548,

548-49 [1st Dept. 2021]; Diaz v Raveh Realty, LLC, 182 AD3d 515, 515-16 [1st Dept. 2020];

Bonaerge v Leighton House Condominium, 134 AD3d 648,649 [1st Dept. 2015]; see generally

Fabrizi v 1095 Ave. ofAmericas, L.L.C., 22 NY3d 658, 662-63 [2014]; Runner v New York Stock

Exch., Inc., 13 NY3d 599, 604-05 [2009]).

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Motion No. 001 002

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NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 03/18/2026

Defendants fail to raise a triable issue of fact in opposition. Defendants submit no

evidence in support of their conclusory contention that safety devices were not needed to control

the descent of the I-beam sections cut by Clarke. Their contention that Clarke was the sole

proximate cause of his injuries is unavailing, as Clarke's injuries "were caused at least in part by

the lack of safety devices to check the beam's descent" and "comparative negligence is no

defense to [a] Labor Law§ 240(1) claim" (Bonaerge, 134 AD3d at 649-50). Similarly, it is

immaterial whether, as defendants contend, it could not have been anticipated that the subject I-

beam would ricochet off an adjacent piece of equipment and strike Clarke. It was indisputably

expected that the subject section ofl-beam would fall after Clarke cut it free from the waler, and

Clarke's unrebutted testimony suffices to establish that "statutorily enumerated safety devices

could have prevented the accident" by securing the beam in place and/or controlling its descent

(id. at 649; see Aramburu v Midtown W B, LLC, 126 AD3d 498, 499-500 [1st Dept. 2015]).

Therefore, Clarke's motion for partial summary judgment as to liability on his Labor Law

§ 240( 1) claim is granted.

DEFENDANTS' MOTION (MOT SEO 002)

A. Labor Law § 200 & Common-Law Negligence

Defendants establish their prima facie entitlement to summary judgment dismissing

Clarke's Labor Law§ 200 and common-law negligence claims, which relate to alleged defects or

dangers arising from the means and methods of Clarke's work for Moore at the Premises, via the

submission of the parties' deposition transcripts, which demonstrate that defendants did not

supervise, direct, or control Clarke's work (see Singh v 1221 Ave. Holdings, LLC, 127 AD3d

607,608 [1st Dept. 2015]; Alonzo v Safe Harbors of the Hudson Haus. Dev. Fund Co., Inc., 104

AD3d 446,449 [1st Dept. 2013]; Burkoski v Structure Tone, Inc., 40 AD3d 378, 381 [1st Dept.

2007]; Hughes v Tishman Const. Corp., 40 AD3d 305, 306 [1st Dept. 2007]). Clarke, in

opposition, fails to raise a triable issue of fact.

Clarke submits no evidence to demonstrate that defendants exercised supervision and

control over his work. His argument that defendants regularly inspected the job site and had the

authority to stop the work of subcontractors is unavailing. "Regular inspection of the site to

ensure that work is progressing according to schedule or the authority to stop any work perceived

to be unsafe constitutes a general level of supervision that is not sufficient to warrant holding

defendants liable under Labor Law§ 200 [or common-law negligence]" (Singh, 127 AD3d at

608). Nor does Clarke submit evidence to support his contention that he complained to

Cauldwell employees about the lack of a chain fall and/or requested that Cauldwell provide him

one. Indeed, this contention is contrary to the evidence submitted, including Clarke's own

deposition testimony, which establishes that Moore alone provided Clarke with his work

equipment and that Clarke discussed the need for a chain fall only with other Moore employees.

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Motion No. 001 002

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Therefore, defendants' motion is granted to the extent that it seeks summary judgment

dismissing Clarke's Labor Law§ 200 and common-law negligence claims.

B. Labor Law§ 241(6)

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, a plaintiff must

"specifically plead and prove the violation of an applicable Industrial Code regulation" (Buckley

v Columbia Grammar & Preparatory, 44 AD3d 263,271 [1st Dept. 2007]).

Clarke's Supplemental Verified Bill of Particulars, dated December 13, 2023, alleges

violations oflndustrial Code sections 23-1.4, 23-1.5, 23-1.7, 23-1.17, 23-1.19, 23-1.25, 23-1.30,

23-1.33, 23-2.3, 23-2.6, and 23-6.2. However, with the sole exception of 12 NYCRR 23-1.25(d),

Clarke's opposition fails to respond to defendants' arguments that these various Industrial Code

sections are inapplicable or were not violated. As such, except for 12 NYCRR 23-1.25(d), Clarke

is deemed to have abandoned reliance on all the Industrial Code sections referenced in his

Supplemental Verified Bill of Particulars (see Linares v Massachusetts Mut. Life Ins. Co., 225

AD3d 520, 521 [1st Dept. 2024]; Kempisty v 246 Spring St., LLC, 92 AD3d 474,475 [1st Dept.

2012]).

Section 23-1.25( d) requires, as relevant here, that workers engaged in welding or flame-

cutting "shall be provided where necessary with proper scaffolds[.]" Defendants do not

demonstrate that they did not violate this regulation or that it is inapplicable to the facts of this

case. It is undisputed that Clarke was engaged in welding or flame-cutting at the time of his

accident and that he was not provided with a scaffold while conducting this work. Further, there

is a question of fact as to whether a scaffold should have been provided to prevent the subject I-

beam from falling once cut free, and whether the failure to provide such a scaffold was a

proximate cause of Clarke's injuries. Therefore, defendants' motion is denied to the extent it

seeks summary judgment dismissing the Labor Law§ 241(6) claim insofar as predicated upon an

alleged violation of 12 NYCRR 23-1.25(d).

In addition to maintaining his reliance on 12 NYCRR 23-1.25(d), Clarke also, for the first

time in his opposition, alleges violations of the following Industrial Code sections as predicates

for his Labor Law§ 241(6) claim: 23-2.l(b), 23-3.3(c), and 23-3.3(e)(2). However, 23-2.l(b)

"'does not sufficiently set forth a specific standard of conduct as opposed to a general reiteration

of common-law principles for its violation to qualify as a predicate for a Labor Law§ 241(6)

cause of action'" (Quinlan v City of New York, 293 AD2d 262, 263 [1st Dept. 2002], quoting

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Motion No. 001 002

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Mendoza v Marche Libre Assocs., 256 AD2d 133, 133 [1st Dept. 1998]; see Dyszkiewicz v City

of New York, 218 AD3d 546, 548-49 [2nd Dept. 2023 ]).

As for 23-3.3(c) and (e)(2), these sections are inapplicable to the facts of this case.

Section 23-3.3(c) requires continuing inspections during ongoing demolition work to detect, as

relevant here, "loosened material." This does not, however, "encompass material which is being

loosened deliberately" (Garcia v 225 E. 57th St. Owners, Inc., 96 AD3d 88, 92 [1st Dept. 2012]),

and is thus inapplicable where, as here, "[t]he hazard which injured the plaintiff was the actual

performance of the demolition work, not structural instability caused by the progress of the

demolition" (Campoverde v Bruckner Plaza Assocs., L.P., 50 AD3d 836, 837 (2nd Dept. 2008]).

Section 23-3.3(e)(2) is likewise inapplicable, "as that regulation requires buckets and hoists to be

used in the removal of demolition debris from the interior of structures, not in the removal of

material from its original place in a wall or ceiling" (id.; see also Freitas v New York City Transit

Auth., 249 AD2d 184, 185 [1st Dept. 1998]; Dyszkiewicz, 218 AD3d at 550).

Accordingly, it is

ORDERED that plaintiffs' motion pursuant to CPLR 3212 for partial summary judgment

as to liability on their Labor Law§ 240(1) claim (MOT SEQ 001) is granted; and it is further

ORDERED that the branch of defendants' motion pursuant to CPLR 3212 for partial

summary judgment dismissing plaintiffs' Labor Law§ 200 and common-law negligence claims

(MOT SEQ 002) is granted; and it is further

ORDERED that the branch of defendants' motion pursuant to CPLR 3212 for partial

summary judgment dismissing plaintiffs' Labor Law§ 241(6) claim (MOT SEQ 002) is granted

except to the extent that the claim is predicated upon an alleged violation of 12 NYCRR 23-

1.25(d); and it is further

ORDERED that the Clerk shall mark the file accordingly.

This constitutes the Decision and Order of the court.

3/17/2026

DATE LYNN R. KOTLER, J.S.C.

~

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

156214/2021 CLARKE, MICHAEL ET AL vs . UWS PROPERTY OWNER, LLC ET AL Page 5 of 5

Motion No. 001 002

5 of 5

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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