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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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

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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.

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[* 3] 3 of 8 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

[* 4] 4 of 8 FILED: KINGS COUNTY CLERK 02/27/2026 09:34 AM INDEX NO. 514948/2020 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 02/27/2026 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 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 of 8 FILED: KINGS COUNTY CLERK 02/27/2026 09:34 AM INDEX NO. 514948/2020 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 02/27/2026 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

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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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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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