Introduction

This commentary examines the Second Department’s decision in Novegil-Peralta v. Rettig, a construction-accident appeal arising from a ladder fall at a residential construction site. The plaintiff, Jilver Armando Novegil-Peralta, an employee of Prestige Custom Builders (Prestige), alleged violations of Labor Law §§ 200, 240(1), and 241(6), and common-law negligence. He sued (among others) Bullrock Concrete Corp. (Bullrock), a trade contractor, and Gary Rettig, a corporate officer of the property-owning entity, Laura Rettig, Ltd. (LRL).

The appeal challenged an order that: (1) granted summary judgment to Bullrock dismissing all claims, (2) granted summary judgment to dismiss claims against Gary Rettig individually, (3) denied plaintiff’s cross-motion to compel additional discovery, and (4) in effect issued a protective order under CPLR 3103 blocking a late-served discovery demand that attempted to inject new, materially different theories.

The decision reinforces two core principles: (a) subcontractors and corporate officers are not liable as “agents” under Labor Law §§ 200/240/241 absent supervisory authority over the injury-producing work; and (b) discovery cannot be used at the summary judgment stage to pivot to new liability theories—courts may issue protective orders to preclude palpably improper demands.

Summary of the Judgment

• The court affirmed summary judgment for Bullrock: Bullrock was neither owner nor general contractor nor an “agent” with supervisory control over the plaintiff’s work; it was not present on the accident date and supplied no equipment.
• The court affirmed summary judgment dismissing claims against individual defendant Gary Rettig: his involvement was solely as a corporate officer of LRL; he had no supervisory control and was not present on the accident date.
• The court rejected plaintiff’s “premature summary judgment” argument and denied plaintiff’s motion to compel discovery, holding the plaintiff failed to show an evidentiary basis that further discovery would yield material facts within the exclusive control of the movants.
• The court, on its own motion, treated the notice of appeal from the protective-order portion as an application for leave and granted leave (CPLR 5701[c])—then affirmed the protective order under CPLR 3103 because the March 2021 discovery demand improperly sought to expand the case with new and materially different theories.
• One bill of costs awarded to respondents appearing separately and filing separate briefs.

Analysis

1) Precedents Cited and Their Influence

• Labor Law § 200 and Common-Law Negligence
  • Titov v V & M Chelsea Prop., LLC, 230 AD3d 614: Reiterates § 200 codifies the common-law duty to provide a safe workplace. The court used this to frame the § 200 analysis.
  • Rodriguez v HY 38 Owner, LLC, 192 AD3d 839: Supports the standard for safe workplace obligations under § 200.
• Labor Law §§ 240(1) and 241(6) Duties and “Agent” Liability
  • Ennis v Noble Constr. Group, LLC, 207 AD3d 703: Clarifies the nondelegable nature of § 240(1) duties on owners, GCs, and their agents.
  • Moscati v Consolidated Edison Co. of N.Y., Inc., 168 AD3d 717: Articulates nondelegable duty under § 241(6) to comply with specific industrial code provisions.
  • Mitchell v 148th St. Jamaica Condominium, 221 AD3d 596; Southerton v City of New York, 203 AD3d 977; Seem v Premier Camp Co., LLC, 200 AD3d 921: These decisions define the “agent” concept—liability attaches only where the defendant had supervisory control and authority over the injury-producing work. The court relied on these to find Bullrock and Gary Rettig were not agents.
  • Morton v State of New York, 15 NY3d 50; Thorpe v One Page Park, LLC, 208 AD3d 818: Support that §§ 200, 240, and 241 impose duties only on owners, general contractors, and their agents.
• Prematurity and Discovery Standards in Summary Judgment Context
  • Rosenblum v City of New York, 230 AD3d 1175; Malester v Rampil, 118 AD3d 855: Recognize a party’s right to a reasonable discovery opportunity before summary judgment, but not an automatic bar to adjudication.
  • Mitchell, 221 AD3d at 597; Festagallo v Mendelbaum, 213 AD3d 741; Lazarre v Gragston, 164 AD3d 574: Establish that a non-movant must present an evidentiary basis that further discovery will yield material facts within the movant’s exclusive knowledge; speculation is insufficient. The court used these to reject plaintiff’s prematurity argument.
• Protective Orders and Limiting Improper Discovery
  • Kopelevich & Feldsherova, P.C. v Geller Law Group, P.C., 222 AD3d 956; Venables v Rovegno, 195 AD3d 876: Affirm the trial court’s broad discretion and power under CPLR 3103 to issue protective orders for palpably improper, irrelevant, or overly broad demands.
  • Campbell v Ditmas Park Rehabilitation & Care Ctr., LLC, 225 AD3d 835: Holds that discovery cannot be used to pursue new and materially different theories not pleaded—directly on point for the March 2021 demand here.
  • Smulczeski v Smulczeski, 128 AD3d 671; Fried v Jacob Holding, LLC, 110 AD3d 56: Additional authority for curbing abusive discovery through protective orders.

2) The Court’s Legal Reasoning

a) No “Agent” Liability Without Supervisory Control

The lynchpin for dismissing the Labor Law and negligence claims against Bullrock and Gary Rettig was the absence of supervisory control over the injury-producing work. Through affidavits, invoices, and deposition transcripts, Bullrock showed that:

• It was neither owner nor general contractor of the project;
• It was not on-site the day of the accident;
• It provided no ladder, tools, or equipment to the plaintiff; and
• Prestige, the plaintiff’s employer, directed the plaintiff’s work and supplied the equipment.

Similarly, the Rettig defendants showed that Gary Rettig acted solely as a corporate officer of LRL, had no supervisory authority over the framing work, and was not present at the accident. Absent the authority to control the means and methods of plaintiff’s work (or the injury-producing activity), neither Bullrock nor Gary Rettig qualified as an “agent” under §§ 200, 240(1), or 241(6). The nondelegable duties imposed by §§ 240(1) and 241(6) therefore did not attach to them, and common-law negligence likewise failed for want of control.

b) Prematurity of Summary Judgment Rejected

While parties are generally entitled to a reasonable opportunity for discovery, a claim of prematurity cannot rest on conjecture. The plaintiff was required to articulate specific, material facts likely to be uncovered and show they were within the exclusive knowledge of the movants. The court found no evidentiary basis that additional discovery would yield relevant, material facts to defeat the prima facie showings. Consequently, the plaintiff’s cross-motion to compel discovery was denied.

c) Protective Order Precluding New Theories via Discovery

The plaintiff served a March 22, 2021 discovery demand contemporaneously with opposition to summary judgment motions. The demand, the court found, largely targeted new and materially different theories from those pleaded in the complaint and bill of particulars. Relying on CPLR 3103(a) and cases like Campbell and Kopelevich, the court held such a demand “palpably improper” and affirmed the issuance of a protective order. Discovery is a tool to obtain evidence on pleaded claims—not a backdoor to reframe the lawsuit during dispositive motion practice.

d) Appellate Procedure: Leave to Appeal Granted

Recognizing that the protective-order portion was not appealable as of right, the Second Department, on its own motion, deemed the notice of appeal an application for leave (CPLR 5701[c]) and granted leave. This ensured the discovery ruling received appellate review and signals the court’s willingness to address significant discovery-management issues.

3) Impact and Practice Implications

For construction litigation (Labor Law §§ 200/240/241):

• Agency requires real control. Trade contractors who neither supervise nor control the injury-producing work, and corporate officers without supervisory roles, are not liable as agents. Defendants should marshal affidavits and deposition testimony to establish lack of control.
• Equipment provision and presence matter. Evidence that the plaintiff’s employer provided the devices and directed the work, coupled with the defendant’s absence from the site at the time of the accident, is potent in defeating agency-based liability.
• Individual vs. entity liability is distinct. Suing corporate officers individually will not survive absent proof of personal supervisory authority over the work.

For discovery and motion practice:

• No late-stage pivots via discovery. Parties cannot use discovery demands served with summary judgment opposition to introduce new, materially different theories. The correct route is a motion to amend pleadings—early.
• Prematurity arguments must be concrete. Opponents to summary judgment must identify specific facts likely to emerge, explain their materiality, and show the facts lie within the movant’s exclusive knowledge. “Fishing expeditions” will be curtailed.
• CPLR 3103 protective orders are robust tools. Trial courts retain wide discretion to supervise discovery and protect against irrelevant, burdensome, or improper demands.

Complex Concepts Simplified

• Labor Law § 200: Codifies the common-law duty to provide a safe workplace. Liability typically turns on whether the defendant controlled the means and methods of the work (for activity-based hazards) or had notice of a dangerous premises condition.
• Labor Law § 240(1) (“Scaffold Law”): Imposes a nondelegable duty on owners, general contractors, and their agents to furnish adequate safety devices for elevation-related risks. To reach a non-owner/non-GC, the plaintiff must show the defendant was an “agent” with authority to supervise and control the injury-producing work.
• Labor Law § 241(6): Imposes a nondelegable duty on owners, general contractors, and their agents to comply with specific Industrial Code provisions. The “agent” concept is the same as under § 240(1).
• “Agent” under the Labor Law: A party that, though not the owner or GC, had supervisory control and authority over the injury-producing activity—enough to correct or avoid the hazard.
• Summary Judgment: A pretrial mechanism to dispose of claims where no material facts are in dispute. The movant must make a prima facie showing; the burden then shifts to the opponent to raise a triable issue of fact.
• “Premature” Summary Judgment: An objection that more discovery is needed. It fails unless the opponent identifies specific, material facts likely to be discovered that are within the movant’s exclusive control.
• Protective Order (CPLR 3103): A court order limiting or precluding discovery that is irrelevant, burdensome, confidential, overbroad, or otherwise “palpably improper.”
• Bill of Particulars: A pleading device that amplifies and clarifies the claims; parties are generally confined to theories articulated in the complaint and bill of particulars. Discovery cannot be used to introduce new theories not pleaded.
• Leave to Appeal (CPLR 5701[c]): When a ruling is not appealable as of right, the appellate court can grant leave, as it did here for the protective order, to permit review.

Conclusion

Novegil-Peralta v. Rettig strengthens a settled but crucial pair of doctrines: first, that Labor Law §§ 200, 240(1), and 241(6) attach only to owners, general contractors, and true agents—those with supervisory control over the injury-producing work—and second, that discovery is not a vehicle to re-engineer the lawsuit at the summary judgment stage. The Second Department affirmed dismissals for a trade contractor and a corporate officer who had no on-site supervisory role, and it endorsed vigorous trial court oversight of discovery by upholding a protective order against a late, theory-expanding demand.

The message is clear for practitioners: establish the control record early; confine theories to the pleadings and timely amendments; and if opposing summary judgment as premature, anchor the request in specific, material facts within the movant’s exclusive knowledge. For courts, the decision reaffirms broad discretion to keep discovery aligned with pleaded issues and to prevent tactical late-stage shifts that prejudice orderly adjudication.

Key takeaways:

• No Labor Law “agent” liability without supervisory control over the injury-producing work.
• Corporate officers are not personally liable absent personal supervisory authority.
• “Premature” summary judgment objections require concrete evidentiary showings—not speculation.
• Protective orders may bar discovery that seeks to inject new, materially different theories at the summary judgment stage.