Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 5, 2026

2021-08595, (Index No. 511814/14)

Colleen D. Duffy, J.P.

Paul Wooten

Laurence L. Love

Phillip Hom, JJ.

[*1]

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Mark Partnow, J.), dated October 26, 2021. The order, insofar as appealed from, (1) granted those branches of the motion of the defendants 1719 27 ST, LLC, and 27 ST CON, LLC, which were for summary judgment dismissing the causes of action alleging common-law negligence and a violation of Labor Law § 200 insofar as asserted against them, (2) granted those branches of the motion of the defendants J. Petrocelli & Sons Construction, Inc., and J. Petrocelli Construction, Inc., which were for leave to extend the time to move for summary judgment, and thereupon, for summary judgment dismissing the causes of action alleging common-law negligence and a violation of Labor Law § 200 insofar as asserted against them, and (3) denied the plaintiff's separate cross-motions for summary judgment on the issue of liability on the causes of action alleging common-law negligence and a violation of Labor Law § 200 insofar as asserted against the defendants 1719 27 ST, LLC, and 27 ST CON, LLC, and the defendants J. Petrocelli & Sons Construction, Inc., and J. Petrocelli Construction, Inc., respectively.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting those branches of the motion of the defendants J. Petrocelli & Sons Construction, Inc., and J. Petrocelli Construction, Inc., which were for summary judgment dismissing the causes of action alleging common-law negligence and a violation of Labor Law § 200 insofar as asserted against them, and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs payable to the plaintiff by the defendants J. Petrocelli & Sons Construction, Inc., and J. Petrocelli Construction, Inc., and one bill of costs payable by the plaintiff to the defendants 1719 27 ST, LLC, and 27 ST CON, LLC.

The plaintiff commenced this action against, among others, the defendants 1719 27 ST, LLC, and 27 ST CON, LLC (hereinafter together the 27 ST defendants), and the defendants J. [*2]Petrocelli & Sons Construction, Inc., and J. Petrocelli Construction, Inc. (hereinafter together the Petrocelli defendants), to recover damages for personal injuries he alleged he sustained when he was struck by a delivery gate at a construction site at which he was working. The complaint alleged, inter alia, violations of Labor Law § 200 and common-law negligence.

In February 2020, the 27 ST defendants moved, among other things, for summary judgment dismissing the causes of action alleging common-law negligence and a violation of Labor Law § 200 insofar as asserted against them. In January 2021, the plaintiff cross-moved for summary judgment on the issue of liability on the causes of action alleging common-law negligence and a violation of Labor Law § 200 insofar as asserted against the 27 ST defendants. In January 2021, the Petrocelli defendants moved, inter alia, for an extension of time to move for summary judgment, and thereupon, for summary judgment dismissing the causes of action alleging common-law negligence and a violation of Labor Law § 200 insofar as asserted against them. In April 2021, the plaintiff cross-moved for summary judgment on the issue of liability on the causes of action alleging common-law negligence and a violation of Labor Law § 200 insofar as asserted against the Petrocelli defendants. In an order dated October 26, 2021, the Supreme Court, among other things, granted those branches of the 27 ST defendants' and the Petrocelli defendants' motions, and denied the plaintiff's cross-motions. The plaintiff appeals.

"When a claim arises out of an alleged dangerous premises condition, a property owner or general contractor may be held liable in common-law negligence and under Labor Law § 200 when the owner or general contractor has control over the work site and either created the dangerous condition causing an injury, or failed to remedy the dangerous or defective condition while having actual or constructive notice of it" (Mushkudiani v Racanelli Constr. Group, Inc., 219 AD3d 613, 616 [alteration and internal quotation marks omitted]; see Abelleira v City of New York, 120 AD3d 1163, 1164). "A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident such that it could have been discovered and corrected" (Nicoletti v Iracane, 122 AD3d 811, 812; see Gordon v American Museum of Natural History, 67 NY2d 836, 837).

Here, the 27 ST defendants established, prima facie, that they did not have the requisite control over the work site and neither created the allegedly dangerous condition nor had actual or constructive notice of its existence (see Palacios v 29th St. Apts, LLC, 110 AD3d 698, 699). In opposition, the plaintiff failed to raise a triable issue of fact.

The Supreme Court properly denied the plaintiff's cross-motion for summary judgment on the issue of liability on the causes of action alleging common-law negligence and a violation of Labor Law § 200 insofar as asserted against the 27 ST defendants as untimely because it was filed more than one year after the note of issue was filed and did not rely on nearly identical grounds as the 27 ST defendants' motion, but was instead premised upon Administrative Code of the City of New York § 7-210 (see Whitehead v City of New York, 79 AD3d 858, 860; Grande v Peteroy, 39 AD3d 590, 591-592).

The Supreme Court also properly granted that branch of the Petrocelli defendants' motion which was for leave to extend the time to move for summary judgment because they established that when the note of issue was filed, there remained significant outstanding discovery, including four party depositions, which were essential to their motion (see Navarro v Damac Realty, LLC, 202 AD3d 1100, 1101; Avezbakiyev v City of New York, 104 AD3d 888, 888-889).

However, the Supreme Court should have denied those branches of the Petrocelli defendants' motion which were for summary judgment dismissing the causes of action alleging common-law negligence and a violation of Labor Law § 200 insofar as asserted against them. While a construction manager is generally not considered a contractor responsible for the safety of the workers at a construction site pursuant to Labor Law § 200, "it may nonetheless become responsible if it has been delegated the authority and duties of a general contractor, or if it functions as an agent of the owner of the premises" (Rodriguez v JMB Architecture, LLC, 82 AD3d 949, 950; see Walls v Turner Constr. Co., 4 NY3d 861, 863-864). "A party is deemed to be an agent of an owner or [*3]general contractor under the Labor Law when it has supervisory control and authority over the work being done where a plaintiff is injured" (Lamar v Hill Intl., Inc., 153 AD3d 685, 686 [internal quotation marks omitted]). A role of general supervision "is insufficient to impose liability under the Labor Law" (Rodriguez v JMB Architecture, LLC, 82 AD3d at 951).

Here, the Petrocelli defendants failed to establish, prima facie, that they did not exercise a significant degree of control and supervision of the construction site such that it was not delegated the authority and duties of a general contractor (see id. at 950), and failed to establish that they lacked constructive notice of the allegedly dangerous condition because they did not submit any evidence to demonstrate that the "dangerous condition did not exist for a sufficient length of time to afford [them] a reasonable opportunity to discover and remedy it" (Mowla v Baozhu Wu, 195 AD3d 706, 708). Accordingly, the Supreme Court should have denied those branches of the Petrocelli defendants' motion which were for summary judgment dismissing the causes of action alleging common-law negligence and a violation of Labor Law § 200 insofar as asserted against them, regardless of the sufficiency of the papers submitted in opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Valentin v Stathakos, 228 AD3d 985, 988).

The Supreme Court properly denied as untimely that branch of the plaintiff's cross-motion which was for summary judgment on the issue of liability on the causes of action alleging common-law negligence and a violation of Labor Law § 200 insofar as asserted against the Petrocelli defendants which relied on Administrative Code § 7-210 because it relied on different grounds than the Petrocelli defendants' initial motion (see Whitehead v City of New York, 79 AD3d at 860; Grande v Peteroy, 39 AD3d at 591-592). However, the court should have evaluated the merits of that branch of the plaintiff's cross-motion which relied on nearly identical grounds as the Petrocelli defendants' motion (see Wittenberg v Long Is. Power Auth., 225 AD3d 730, 732; Sikorjak v City of New York, 168 AD3d 778, 780). In any event, the plaintiff failed to establish, prima facie, that the Petrocelli defendants had actual or constructive notice of the condition of the delivery gate (see McDonnell v Our Lady of Mercy R.C. Church, 209 AD3d 729, 730).

Accordingly, the Supreme Court properly denied the plaintiff's cross-motion for summary judgment on the issue of liability on the causes of action alleging common-law negligence and a violation of Labor Law § 200 insofar as asserted against the Petrocelli defendants.

DUFFY, J.P., WOOTEN, LOVE and HOM, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court