Gomez v. Tilden Estates, LLC: Dust on Permanent Stairs as a Potential 12 NYCRR 23-1.7(d) “Slipping Hazard,” Limits on Untimely Cross-Motions, and No Automatic §240(1) Liability for Stairway Slips

Introduction

In Gomez v. Tilden Estates, LLC (2025 NY Slip Op 04706), the Appellate Division, Second Department, revisited three recurring themes in New York construction accident litigation: (1) when an untimely cross-motion may be considered; (2) how Labor Law §240(1) (the “Scaffold Law”) applies to stairway slip accidents involving heavy equipment; and (3) the reach of Labor Law §241(6)’s slipping-hazard regulation, 12 NYCRR 23-1.7(d), particularly in light of the Court of Appeals’ recent pronouncements that its list of slippery substances is non-exhaustive.

The plaintiff, an HVAC worker employed by a subcontractor, was carrying a heavy air-conditioning compressor up a permanent staircase to the roof of a four-story building when he slipped on dust, fell backward, and the compressor landed on him. The Supreme Court (Kings County) granted the worker summary judgment on liability under Labor Law §§240(1) and 241(6), struck the defendants’ comparative negligence defense, and denied the defendants’ cross-motion to dismiss the complaint. The Second Department modified: it denied the plaintiff’s motions on §§240(1) and 241(6) and reinstated comparative negligence, while affirming the denial of the defendants’ attempt to dismiss those statutory claims. It also clarified the narrow circumstances in which courts may reach the merits of an untimely cross-motion.

Summary of the Judgment

Untimely cross-motion practice: The court held it could consider the defendants’ untimely cross-motion only insofar as it addressed claims raised on “nearly identical grounds” by the plaintiff’s timely motion (here, §§240(1) and 241(6)). The court should not have considered the cross-motion as to common-law negligence and Labor Law §200, which were not raised by the plaintiff’s motion.
Labor Law §240(1): The plaintiff was not entitled to summary judgment because his testimony suggested a slip on dust—a “separate hazard” unrelated to an elevation-related risk. However, the defendants also were not entitled to dismissal; triable issues remained as to whether moving a heavy unit up several flights without other means or safety devices implicated §240(1), and whether the use of a permanent stairway categorically defeats §240(1) coverage (it does not).
Labor Law §241(6): The plaintiff failed to establish summary judgment on liability. He did not show that 12 NYCRR 23-1.7(d) definitively applied to “dust,” and 23-1.7(e) (tripping hazards) was plainly inapplicable to a slip. Nonetheless, the defendants failed to eliminate triable issues under 23-1.7(d) because, post-Bazdaric, the regulation’s list of slipping hazards is non-exhaustive and extends to “any other foreign substance” that creates slippery footing—potentially including dust on stairs.
Comparative negligence: The plaintiff was not entitled to summary judgment striking the defendants’ comparative negligence defense; he could not meet his prima facie burden by merely highlighting gaps in the defense proof.

Analysis

Precedents Cited and Their Influence

1) Timeliness and “Nearly Identical Grounds” for Untimely Cross-Motions

Brill v City of New York, 2 NY3d 648 (2004): Establishes that untimely summary judgment motions must be denied absent “good cause” for the delay. The Second Department applied Brill’s strict timeliness standard.
Munoz v Agenus, Inc., 207 AD3d 643; Gonzalez v Pearl, 179 AD3d 645: Restate the Kings County rule: summary judgment motions must be filed within 60 days after the note of issue (absent leave). Defendants here moved ~7 months after the note of issue without explanation.
Wittenberg v Long Is. Power Auth., 225 AD3d 730; Sikorjak v City of New York, 168 AD3d 778: Clarify that an untimely cross-motion may be considered if it is based on “nearly identical grounds” as a timely motion. The court used this doctrine to consider the defense cross-motion only on §§240(1) and 241(6)—the claims raised by plaintiff’s motion.
Sheng Hai Tong v K & K 7619, Inc., 144 AD3d 887; Vitale v Astoria Energy II, LLC, 138 AD3d 981; Dojce v 1302 Realty Co., LLC, 199 AD3d 647: Reinforce that courts may not use a timely motion on one set of issues to bootstrap an untimely cross-motion on different issues (here, common-law negligence and §200). The Second Department held the trial court should not have reached those parts of the cross-motion.

Together, these cases ensure that litigants cannot evade Brill by filing sprawling, untimely cross-motions; only claims and arguments that mirror the timely movant’s grounds are reachable.

2) Labor Law §240(1) (Scaffold Law): Elevation Risks vs. “Separate Hazards”

Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Nieves v Five Boro A.C. & Refrig. Corp., 93 NY2d 914: §240(1) covers a narrow class of elevation-related hazards; it does not encompass every peril somehow connected to gravity.
Runner v New York Stock Exch., Inc., 13 NY3d 599: The “single decisive question” is whether injuries flowed directly from the application of gravity across a physically significant elevation differential and inadequate protective devices.
Nicometi v Vineyards of Fredonia, LLC, 25 NY3d 90: Introduces the “separate hazard” principle: injuries caused by slipping on a substance (e.g., ice) can be unrelated to an elevation risk and therefore outside §240(1). The Second Department applied Nicometi in concluding the plaintiff’s dust-based slip precluded his own summary judgment on §240(1).
Sullivan v New York Athletic Club of City of N.Y., 162 AD3d 950; Chuqui v Amna, LLC, 203 AD3d 1018: Reinforce that not all falls implicate §240(1); the plaintiff must connect the injury to an elevation-related risk and inadequate safety devices.
Ramones v 425 County Rd., LLC, 217 AD3d 977: Supports the proposition that transporting heavy materials in a way that may require safety devices can raise triable §240(1) issues. The court relied on Ramones to deny the defense motion to dismiss §240(1).
DaSilva v Toll GC LLC, 224 AD3d 540; Gory v Neighborhood Partnership Hous. Dev. Fund Co., Inc., 113 AD3d 550: Reject a categorical rule that accidents on permanent stairways fall outside §240(1). The Second Department cited these to hold defendants failed to establish that the use of permanent stairs automatically defeats §240(1).

These authorities drove a nuanced outcome: the plaintiff’s own slip-based narrative undermined his §240(1) entitlement on summary judgment, but the defendants could not foreclose the possibility that carrying a heavy unit up multiple flights without alternative means or devices implicated elevation risks under Runner. Hence, a jury must resolve it.

3) Labor Law §241(6): Specific Industrial Code Violations and Slipping Hazards

Aragona v State of New York, 147 AD3d 808: §241(6) imposes a nondelegable duty on owners and contractors to provide reasonable and adequate protection to construction workers.
Verdi v SP Irving Owner, LLC, 227 AD3d 932; Stewart v Brookfield Off. Props., Inc., 212 AD3d 746: Liability under §241(6) requires proof of a violation of a specific, applicable Industrial Code provision that proximately caused the injury.
12 NYCRR 23-1.7(d) (slipping hazards) and 23-1.7(e) (tripping hazards):
- Shewprasad v KSK Constr. Group, LLC, 231 AD3d 762: 23-1.7(e) (tripping) does not apply where the injury is from a slip; the Second Department applied that here.
- Dyszkiewicz v City of New York, 218 AD3d 546: Confirms 23-1.7(e) inapplicability in slip scenarios.
- Bazdaric v Almah Partners LLC, 41 NY3d 310: The Court of Appeals held that the list of slippery substances in 23-1.7(d) is non-exhaustive; the regulation also covers “any other foreign substance which may cause slippery footing.” The Second Department leveraged Bazdaric to hold that dust can, in principle, fall within 23-1.7(d), creating triable issues.
- Ruisech v Structure Tone Inc., 42 NY3d 1061; DeMercurio v 605 W. 42nd Owner LLC, 172 AD3d 467: Support application of 23-1.7(d) where a foreign substance on a walking surface renders it slippery.

Applying these authorities, the court rejected the plaintiff’s bid for summary judgment because he did not conclusively show that “dust” is covered by 23-1.7(d) on these facts. But the defense likewise failed to show that “dust” could not be a “foreign substance,” particularly post-Bazdaric. Result: §241(6) survives for trial under 23-1.7(d), but not under 23-1.7(e).

4) Motion Practice Burdens

Winegrad v New York Univ. Med. Ctr., 64 NY2d 851: If the movant fails to make a prima facie showing, the motion must be denied regardless of the opponent’s papers. The court repeatedly invoked this bedrock rule to deny both sides’ requests on various branches.
C.M. v West Babylon Union Free Sch. Dist., 231 AD3d 809: A movant cannot meet its prima facie burden by merely pointing to gaps in the opponent’s proof. Applied here to reinstate the defense of comparative negligence.

Legal Reasoning Applied to the Facts

On §240(1), the court distinguished between an elevation-related accident and a “separate hazard” slip. The plaintiff’s own testimony attributed his fall to dust on the steps rather than a failure of an elevation-protective device. Under Nicometi and Runner, that undercuts a plaintiff-side summary judgment where a slip, not gravity’s force across an elevation differential, is the immediate cause.
Yet the narrative that he was instructed to carry an unusually heavy compressor up several flights, with “no other available means,” raised a fact question whether additional safety devices (e.g., hoists, pulleys, rope systems, or other means) were required to protect against gravity-related risks when transporting heavy objects vertically. Under Runner and Ramones, that sufficed to defeat the defense attempt to dismiss §240(1).
On §241(6), the tripping regulation (23-1.7[e]) plainly did not apply to a slip. But the slipping regulation (23-1.7[d]) remained in play because Bazdaric broadened its scope beyond an enumerated list to include “any other foreign substance” that creates slippery footing—potentially including dust on stairs used as a passageway. The plaintiff’s testimony that the stairs were “slippery” from dust preserved triable issues of violation and causation.
Comparative negligence: Because the plaintiff did not establish liability as a matter of law under §240(1) or §241(6), and because §241(6) permits comparative fault, the defense remained. The plaintiff could not strike it by criticizing defense proof alone.
Untimely cross-motion: The Kings County 60-day rule and Brill’s “good cause” requirement barred the court from considering defense arguments untethered to the plaintiff’s timely motion. Hence, only the §240(1) and §241(6) branches of the cross-motion were reviewable; the negligence and §200 branches were not.

Impact and Practical Implications

For owners and contractors:
- Housekeeping matters. Dust accumulation on stairs or passageways can sustain a §241(6) claim under 23-1.7(d) after Bazdaric. Routine cleaning and containment during dusty operations can be crucial.
- Permanent staircases do not categorically shield against §240(1). If heavy materials are moved vertically without adequate devices, §240(1) exposure may persist.
- Do not rely on untimely cross-motions to sweep in unrelated claims. Confine late cross-motions to the same grounds raised by your adversary’s timely motion or obtain leave with good cause shown.
For plaintiffs:
- Slip-based stair accidents rarely yield automatic §240(1) summary judgment due to the “separate hazard” doctrine. Develop the Runner narrative: show how gravity’s force on a person or heavy object across a significant elevation differential, coupled with absent/inadequate protective devices, directly caused the injury.
- On §241(6), anchor the claim to 12 NYCRR 23-1.7(d) with specifics: identify the foreign substance, show it was on a walking surface, and explain how it produced slippery footing and proximately caused the fall.
- Be prepared to meet your own prima facie burden; you cannot win by pointing to gaps in the defense’s opposition.
For trial courts:
- This decision underscores disciplined Brill enforcement: entertain untimely cross-motions only where the responding party’s timely motion raises “nearly identical grounds,” and do not expand the scope to unrelated causes of action.
- Where facts blend slip hazards with the transport of heavy materials on stairways, §240(1) issues will often be for the jury, not resolved on motion practice.

Complex Concepts Simplified

Labor Law §240(1) (Scaffold Law): Imposes strict liability on owners and contractors for elevation-related risks when safety devices are inadequate or absent. Not every fall qualifies; the injury must flow from gravity’s force across a significant elevation differential.
“Separate hazard” doctrine: If the immediate cause is a non-elevation hazard (e.g., slipping on dust or ice), a §240(1) claim may fail even if gravity is involved in some sense. The injury must be directly caused by the elevation risk the statute targets.
Labor Law §241(6): Not strict liability. Requires showing a violation of a specific, applicable Industrial Code rule that proximately caused the injury. Owners/contractors owe a nondelegable duty to comply.
12 NYCRR 23-1.7(d) vs. 23-1.7(e):
- 23-1.7(d) addresses slipping risks on walking surfaces caused by liquids, ice, grease, and, post-Bazdaric, “any other foreign substance” that creates slippery footing (the list is illustrative, not exhaustive).
- 23-1.7(e) addresses tripping hazards (e.g., scattered tools and materials). It does not apply to slips.
- Note: The opinion references “22 NYCRR” in a few places, but the relevant Industrial Code is “12 NYCRR 23-1.7.”
Prima facie showing on summary judgment: The moving party must affirmatively prove entitlement to judgment as a matter of law. If it fails, the motion is denied regardless of the opponent’s papers (Winegrad).
Brill timeliness rule: Absent leave for “good cause,” late summary judgment motions are denied. Untimely cross-motions may be considered only when anchored to nearly identical grounds raised by a timely motion.
Comparative negligence: Not a defense to §240(1) liability; but it applies to §241(6), common-law negligence, and Labor Law §200. Because §240(1) liability was not established here, comparative negligence remained in the case.
Permanent stairway: Use of a permanent staircase does not automatically remove a case from §240(1). The inquiry remains whether an elevation-related risk required protective devices that were lacking.

Conclusion

Gomez v. Tilden Estates, LLC is a careful calibration of New York’s construction accident jurisprudence. On procedure, it reaffirms Brill’s timeliness regime and confines untimely cross-motions to issues “nearly identical” to those timely raised. On substance, it resists automatic §240(1) awards in slip-on-stairs cases, invoking Nicometi’s “separate hazard” doctrine, yet preserves §240(1) exposure where the transport of heavy materials up multiple flights without safety devices may implicate Runner’s gravity-based protections. And in the §241(6) realm, the decision embraces the Court of Appeals’ broader reading of 12 NYCRR 23-1.7(d) after Bazdaric—dust on permanent stairs may be a qualifying “foreign substance” that creates slippery footing—while clarifying that tripping rules (23-1.7[e]) do not govern slip accidents.

The key takeaways: (i) dust-based stairway slips can support a §241(6) claim under 23-1.7(d) after Bazdaric; (ii) stairway slip cases seldom justify plaintiff-side §240(1) summary judgment, but defendants cannot rely on a “permanent stairway” label to defeat §240(1) outright; (iii) strict Brill enforcement limits the scope of untimely cross-motions; and (iv) comparative negligence remains in play absent established §240(1) liability. Collectively, Gomez offers a practical roadmap for motion practice and trial strategy in New York’s most litigated construction law terrain.