Polanco v. Brooklyn Rose LLC (2026)

Case details
Full caption
Kings County Kennedy Perez POLANCO v. BROOKLYN ROSE LLC
Country
United States
Jurisdiction
New York (NY)
Court
New York Court of Appeals
Decided
2026
Polanco v. Brooklyn Rose LLC, 2026 WL 1847680 (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.12026 WL 1847680 (N.Y.Sup.) (Trial Order)Supreme Court of New York.Kings CountyKennedy Perez POLANCO, Plaintiff,v.BROOKLYN ROSE LLC, Record 13 Construction Corp., and Homecore Inc., Defendants.Brooklyn Rose LLC and Record 13 Construction Corp., Third-Party Plaintiffs,v.East Coast Bulkheading Inc., Third-Party Defendant.No. 532850/2021.June 16, 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.Seq. 006Part LL1MDecision/OrderDevin P. Cohen.As required by CPLR 2219 (a), the following e-filed documents, listed by NYSCEF document numbers, were considered onthis motion: 65-77, 79-82.Upon the foregoing papers, plaintiff's motion for summary judgment on his Labor Law § 240 (1) claim (Seq. 006) is decidedas follows:Introduction & Factual BackgroundPlaintiff commenced this action to recover for damages he claims to have sustained on December 16, 2021 while performingwork at 661 Driggs Avenue, Brooklyn, NY. It is undisputed that Brooklyn Rose LLC (Brooklyn Rose) owned the premisesand Record 13 Construction Corp. (Record) was the general contractor at the premises. Record sub-contracted with East CoastBulkheading Corp. (East Coast) to perform concrete super-structure work at the premises. The plaintiff was employed by EastCoast.Plaintiff testified as follows: On the date of the incident, plaintiff was working on a column on the third floor of the premises(Polanco EBT at 33). During the day, plaintiff was instructed to use wooden “stairs,” also translated as “ladder,” to travel fromthe third floor to the first floor to sign the daily log, or sign-in sheet, because it had not been out when he arrived that morning(id. at 35-36, 47). The stairs were temporary and only intended to be a means of moving between floors while the project wasongoing (id. at 46). After signing the sheet, while walking back up the stairs, one of the steps broke beneath the plaintiff (id.at 56). When the step broke, plaintiff fell to his right into the handrail, which also broke, and plaintiff fell from approximatelythe sixth step to the landing of the first floor (id. at 56, 58).
Polanco v. Brooklyn Rose LLC, 2026 WL 1847680 (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.2AnalysisOn a motion for summary judgment, the moving party bears the initial burden of making a prima facie showing that there are notriable issues of material fact (Giuffrida v Citibank, 100 NY2d 72, 81 [2003]). Once a prima facie showing has been established,the burden shifts to the non-moving party to rebut the movant's showing such that a trial of the action is required (Alvarez vProspect Hospital, 68 NY2d 320, 324 [1986]).Labor Law § 240 (1)Liability under Labor Law § 240 (1) is “absolute” where the failure or absence of a safety device enumerated by the statuteis a proximate cause of the plaintiff's accident (Blake v Neighborhood Hous. Services of New York City, Inc., 1 N.Y.3d 280,287 [2003] [citing Haimes v. New York Tel. Co., 46 N.Y.2d 132, 136 (1978) and Ross v Curtis-Palmer Hydro-Elec. Co., 81N.Y.2d 494, 500 (1993)]).Plaintiff's testimony is sufficient to make out his prima facie entitlement to summary judgment as a matter of law. The failureof a step and of the handrail constitute failures of safety devices intended to protect plaintiff from an elevation-related risk (seeJaimes-Gutierrez v 37 Raywood Drive, LLC, 233 AD3d 761 [2d Dept 2024]; see also Esquivel v 2707 Creston Realty LLC, 149AD3d 1040 [2d Dept 2017]). Even if the stairs were a permanent wooden staircase, the Second Department has recently heldthat permanent staircases and defective handrails may fall within the ambit of Labor Law § 240 (1) under certain circumstances(see Cagua v Bushwick Holdings, LLC, 238 AD3d 698, 700 [2d Dept 2025]; see also Gomez v Tilden Estates, LLC, 241 AD3d 791 [2d Dept 2025]).*2 Defendants' opposition is unavailing. On the merits, the defendants' opposition does not raise a material issue of factsufficient to rebut the plaintiff's testimony. The defendants offer multi-layer hearsay statements that, without other admissibleevidence, are inadmissible and insufficient to resist summary judgment. Likewise, the alleged hearsay statements of the plaintiffin the hospital record do not appear germane to treatment and are similarly inadmissible (see Pillco v 160 Dikeman Street, LLC,245 AD3d 49 [2d Dept 2025]).Beyond being merely unpersuasive, defense counsel's papers contain a panoply of apparently fake, miscited, or irrelevant cases.Of the approximately 38 cases cited by counsel, 14 either do not exist or are not located at the citation provided by counsel.1 Someof these apparently fabricated citations have case names that are similar to real cases, but none of the citations correlate with thecaptions attributed to them. Furthermore, 10 of the correct citations are offered in support of propositions that are inconsistentwith or wholly unrelated to their actual holdings.2 The court notes that defense counsel, at oral argument, acknowledged “acouple” of inaccurate citations that she did not notice and correct when reviewing the papers before filing. However, the quantityof apparently fabricated or miscited caselaw far exceeds “a couple.” Accordingly, a sanctions hearing will be scheduled by thecourt to investigate this extensive issue in counsel's papers.ConclusionPlaintiff's motion for summary judgment on his Labor Law § 240 (1) claim (Seq. 006) is granted. A sanctions hearing will bescheduled by the court; parties will be notified of the date via email and through eCourts.This constitutes the decision and order of the court.June 16, 2026
Polanco v. Brooklyn Rose LLC, 2026 WL 1847680 (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.3DATE<<signature>>DEVIN P. COHENJustice of the Supreme CourtFootnotes1The purported by apparently fabricated citations are as follows: O'Grady v City of New York, 179 AD3d 1052 (2d Dept 2020);Marquez v 1710 Realty, LLC, 111 AD3d917 (2d Dept 2013); Rosas v 34th St. Partnership, Inc., 89 AD3d 841 (2d Dept 2011); Pinedav 1748 E. 172nd St. LLC, 84 AD3d 676 (2d Dept 2011); Henriquez v Clarence Piping, Inc., 67 AD3d 681 (2d Dept 2009); Riverav Home Depot U.S.A., Inc., 16 AD3d 667 (2d Dept 2005); Antonie v Town of Hempstead, 85 AD3d1079 (2d Dept 2011); Katsanisv ADCO Electrical Corp., 143 AD3d 851 (2d Dept 2016); Borenkoff v Old Navy LLC, 18 AD3d 411 (2d Dept 2005); Klein v Cityof New York, 89 AD3d 1068 (2d Dept 2011); Pena v Edgewater Construction Co., 133 AD3d 917 (2d Dept 2015); Viduarre v 1334York Ave. Realty Co., 40 AD3d 501 (2d Dept. 2007); Esquivel v The City of New York, 160 AD3d 735 (2d Dept. 2018); Muhammadv New York City Transit Authority, 52 AD3d 450 (2d Dept 2008).2These citations are: Davis v Wyeth Pharmaceuticals, Inc., 86 AD3d 907 (2d Dept. 2011); Jackson v Heitman Funds/191 ColonieLLC, 111 AD3d 1208 (2d Dept. 2013); Melchor v Singh, 90 AD3d 866 (2d Dept. 2011); Delahaye v Saint Ann's School, 40 AD3d679 (2d Dept. 2007); Gomez v City of New York, 63 AD3d 511 (2d Dept. 2009); Pichardo v Aurora Contractors, Inc., 29 AD3d879 (2d Dept. 2006); Gonzalez v 1225 Ogden Deli Grocery Corp., 158 AD3d 652 (2d Dept. 2018); Diaz v New York DowntownHospital, 99 N.Y.2d 542 (2002); Cruz v Cablevision Systems Corp., 120 AD3d 744 (2d Dept. 2014); Sanchez v Metro Builders Corp.,136 AD3d 957 (2d Dept. 2016).End of Document© 2026 Thomson Reuters. No claim to original U.S. Government Works.
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