Espinoza v. M&R Const. Group Inc. (2026)

Case details
Full caption
Kings County Angel Rafael Montero ESPINOZA v. M&R CONSTRUCTION GROUP INC
Country
United States
Jurisdiction
New York (NY)
Court
New York Court of Appeals
Decided
2026
Disposition
Motion Denied
Espinoza v. M&R Const. Group Inc., 2026 WL 880831 (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.12026 WL 880831 (N.Y.Sup.), 2026 N.Y. Slip Op. 31227(U) (Trial Order)Supreme Court of New York.Kings County**1 Angel Rafael Montero ESPINOZA, Plaintiff,v.M&R CONSTRUCTION GROUP INC., Shorewood Real Estate GroupLLC d/b/a SWDM Myrtle LLC, and Spenceran, Inc., Defendants.M&R Construction Group Inc., Shorewood Real Estate Group LLC d/b/a SWDM Myrtle LLC, and Spenceran, Inc., Third-Party Plaintiffs,v.Rise Concrete LLC, Third-Party Defendant.No. 513911/2022.March 19, 2026.*1 Editor's Note: This document contains discussion of unverified citations, likely generatedby AI tools used by a party or counsel. These citations are not attributable to the Court. Theunverified citations have been preserved as part of the official record, but links are unavailable.Part LL1MSeqs. 006, 007Decision/OrderDevin P. Cohen.Recitation, as required by CPLR 2219 (a), of the papers considered in the review of this motion, by reference to the New YorkState Courts Electronic Filing System docket numbers: NYSCEF ## 158-167, 169-203, 206-207.Upon the foregoing papers, plaintiff's motion for summary judgme/;ont (Seq. 006) and defendants' cross-motion for summaryjudgment (Seq. 007) are decided as follows:Procedural Posture and Factual BackgroundPlaintiff commenced this action to recover for damages he claims to have sustained on April 28, 2022 when he was struck by astone that fell from an excavator while performing work at 1100 Myrtle Avenue (the premises). It is undisputed that Spenceran,Inc. (Spenceran) owned **2 the premises. Shorewood Real Estate Group LLC d/b/a SWDM Myrtle LLC (Shorewood) isdesignated as an agent of the Owner in the construction management agreement (¶ 1.48). It is undisputed that M&R ConstructionGroup Inc. (M&R) was the construction manager for the project. M&R's construction management agreement, inter alia, containobligations to “directly enforce the Subcontracts and all warranties and guarantees required by the contract documents andsupervise and/or perform any work performed in connection therewith” (see ¶¶ 4.3.33.1 - 4.3.33.9). M&R sub-contracted third-party defendant Rise Concrete LLC (Rise), plaintiff's employer. That sub-contract empowers M&R to “abate any hazard orcorrect any violation” (¶ 5.3.1).
Espinoza v. M&R Const. Group Inc., 2026 WL 880831 (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.2On February 28, 2025, the court denied defendants' motion to amend their pleadings to assert an affirmative defense and acounter-claim of fraud. Now, both parties move for summary judgment.The plaintiff testified as follows: On the date of the incident, plaintiff was performing carpentry work in preparation for a cementpour (plaintiff EBT at 44). Part of this work involved building boxes or frames into which the cement could be poured (id.).Plaintiff was carrying a 10-foot long 2×8 piece of wood to the area where the box was being constructed (id. at 49). Excavationwork was ongoing at the premises, and the excavator was being operated while plaintiff was constructing the boxes (id. at 50).Plaintiff testified that he “was in the area first” to retrieve the wood he needed to perform his work and the excavator operatordrove to where plaintiff was working (id. at 59). The excavator basket was approximately 10 feet above plaintiff's head (id. at50). The operator was breaking up “cement parts that were no good anymore and . . . placing” them “in containers” when apiece of stone fell from the machine onto **3 plaintiff's head (id. at 50). The stone was a little bit bigger than a regulation #3soccer ball (id. at 54), which is slightly smaller than a standard soccer ball.Non-party Angel Suazo, the excavator operator, was also deposed. Mr. Suazo testified that it was common for debris to fallfrom the bucket onto workers and that he was not concerned because it did not “really hurt them” (Suazo EBT at 11). Mr. Suazosaw a stone hit plaintiff on the hardhat (id.).Analysis*2 On a motion for summary judgment, the moving party bears the initial burden of making a prima facie showing that thereare no triable issues of material fact (Giuffrida v Citibank, 100 NY2d 72, 81 [2003]). Once a prima facie showing has beenestablished, the burden shifts to the non-moving party to rebut the movant's showing such that a trial of the action is required(Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]).Shorewood's Status as a Labor Law DefendantAs an initial matter, Shorewood contends that it is not a proper Labor Law defendant because Shorewood was not an agent of theowner with respect to authority to supervise, control, or direct the work being performed (Russin v Louis N. Picciano & Son, 54NY2d 311, 317-318 [1981]). However, as previously noted, Shorewood is designated as an “Owner entity” in the constructionmanagement agreement (CMA at § 1.48). Furthermore, Alma Hot, project manager for M&R, testified that Shorewood was theowner's “rep” (Hot EBT at 11). In light of the uncontroverted evidence, Shorewood's arguments are unavailing.In its moving papers, Shorewood relies on the following purported authority: “Parrelli v. Temple Beth El of Great Neck, 304A.D.2d 788, 789 [2d Dept 2003])” (defendants' aff in supp at 14). However, as plaintiff's counsel notes, this case does not exist.The court can find no case **4 that contains this caption; the nearest Second Department case is Berger v Temple Beth El ofGreat Neck, a defamation action involving none of the issues at dispute in this case. The citation leads to the middle of a SecondDepartment decision in a declaratory judgment matter involving proper land use of a parcel in the County of Westchester.In light of this apparently fabricated caselaw, a sanctions hearing will be scheduled in the decretal section of this decision.Labor Law § 240 (1)Liability under Labor Law § 240 (1) is “absolute” where the failure of a safety device enumerated by the statute is a proximatecause of the plaintiff's accident (Blake v Neighborhood Hous. Services of New York City, Inc., 1 N.Y.3d 280, 287 [2003] [citingHaimes v. New York Tel. Co., 46 N.Y.2d 132, 136 (1978) and Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500(1993)]). In order to recover for an injury caused by a falling object, a plaintiff must show that the object was being hoisted,secured, or required securing for the purpose of the undertaking (Narducci v Manhasset Bay Assoc., 96 NY2d 259 [2001]). Aworker is recalcitrant if he “(1) had adequate safety devices available, (2) knew both that the safety devices were available and
Espinoza v. M&R Const. Group Inc., 2026 WL 880831 (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.3that they were expected to use them, (3) chose for no good reason not to do so, and (4) would not have been injured had theynot made that choice”; mere comparative fault is not a defense to Labor Law § 240 (1) (Biaca-Neto v Boston Rd. II Hous. Dev.Fund Corp., 34 NY3d 1166, 1167-1168 [2020]).It is undisputed that the plaintiff was struck by debris that fell from the bucket of the excavator that was working above hishead--defendants only dispute the size of the stone. Therefore, based on his testimony that he was struck by an unsecured,falling stone, plaintiff has **5 demonstrated his prima facie entitlement to summary judgment (see e.g. Kretowski v BraenderCondominium, 57 AD3d 950 [2d Dept 2008]).Defendants' arguments in opposition, and in support of their own cross-motion, are unavailing. Even if it were accepted arguendothat plaintiff was instructed not to work near the excavator (which is not supported by the record) and the court disregardedplaintiff's testimony that he was in the area working before the excavator arrived, “an instruction not to be in a particular area‘is not a safety device in the sense that plaintiff's failure to comply with the instruction is equivalent to refusing to use available,safe and appropriate equipment” (Rivera v 26 W. 56, LLC, 241 AD3d 844, 846 [2d Dept 2025]). Defendants' arguments aboutthe size of the stone and plaintiff's alleged subsequent actions do not bear on the issue of liability.*3 Therefore, plaintiff's motion is granted with respect to his Labor Law § 240 (1) claim; defendants' cross-motion is denied.Labor Law § 241 (6)To prevail on a cause of action pursuant to Labor Law § 241 (6), plaintiff must show that he was (1) on a job site, (2) engagedin qualifying work, and (3) suffered an injury, (4) a proximate cause of which was a violation of an Industrial Code provision(Moscati v Consolidated Edison Co. of N.Y., Inc., 168 AD3d 717, 718 [2d Dept 2019]). Plaintiff alleges violations of, interalia, 12 NYCRR 23-1.7 (a), 4.2 (k), and 9.5 (c). Each of these is sufficiently specific to support a cause of action under LaborLaw § 241 (6).1The testimony of plaintiff and Mr. Suazo are sufficient to demonstrate plaintiff's prima facie entitlement to summary judgmenton his Labor Law § 241 (6) claim. Mr. Suazo admitted **6 that debris frequently fell from the excavator bucket onto workers;therefore, Rule 1.7 (a)'s requirements for areas ordinarily exposed to falling materials applies. There was neither overheadprotection nor was the area beneath the excavator barricaded to prevent workers from entering the area. Additionally, sinceplaintiff was not part of an excavation crew or a pitman; therefore, Rules 4.2 (k) and 9.5 (c) were violated. Defendant has notproduced evidence that rebuts plaintiff's arguments. The arguments advanced by defendant are inconsistent. Defendant firstargues that plaintiff was the sole proximate cause because he “chose to walk in close proximity to the excavator,” but then arguesin the same section that “plaintiff was required to be in the controlled access zone (CAZ).” On defendants' own arguments, itappears that either Rule 1.7 (a) was violated due to the lack of proper protection around the excavator or Rule 4.2 (k) and 9.5(c) were violated because plaintiff was improperly required to work near the excavator.Therefore, plaintiff's motion is granted with respect to his Labor Law § 241 (6) claim; defendants' cross-motion is denied.Labor Law § 200Plaintiff's motion for summary judgment does not include Labor Law § 200, and defendants' cross-motion was filed 142 daysafter the note of issue was filed, well past the 60-day deadline. Since the plaintiff's motion does not implicate Labor Law §200, this portion of defendants' cross-motion cannot be deemed timely because it was made on a “nearly identical basis” tothe primary motion (see e.g. Grande v Peteroy, 39 AD3d 590, 592 [2d Dept 2007], as amended [Dec. 18, 2007]). “Absent asatisfactory explanation for the untimeliness, constituting good cause for the delay, an untimely summary judgment motionmust be denied without consideration of the merits” (Navarro v Damac Realty, LLC, 202 AD3d 1100, 1101 [2d Dept 2022]).
Espinoza v. M&R Const. Group Inc., 2026 WL 880831 (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.4**7 Therefore, defendant's cross-motion for summary judgment on this claim is denied.ConclusionPlaintiff's motion for summary judgment (Seq. 006) is granted.*4 Defendants' cross-motion for summary judgment (Seq. 007) is denied. A sanctions hearing is scheduled for April 10, 2026at 10:00am.This constitutes the decision and order of the court.March 19, 2026DATE<<signature>>DEVIN P. COHENJustice of the Supreme CourtFootnotes1Although the Second Department is the only Department to find 23-4.2 (k) sufficiently specific, it has consistently done so (Zaino vRogers, 153 AD3d 763, 765 [2d Dept 2017], citing, inter alia, Garcia v Silver Oak USA, 298 AD2d 555, 555 [2d Dept 2002]).End of Document© 2026 Thomson Reuters. No claim to original U.S. Government Works.
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