Figueiredo v. New Line Structures Inc.

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.

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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

FILED: KINGS COUNTY CLERK 02/27/2026 09:34 AM INDEX NO. 514948/2020 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 02/27/2026

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

FILED: KINGS COUNTY CLERK 02/27/2026 09:34 AM INDEX NO. 514948/2020 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 02/27/2026

FILED: KINGS COUNTY CLERK 02/27/2026 09:34 AM INDEX NO. 514948/2020 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 02/27/2026

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.

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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

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Footnotes

[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 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

[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 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 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