Morales v. 88th Avenue Owner, LLC: Overhead Sparks, Ordinary Construction Risks, and the Limits of Labor Law §240(1) and 12 NYCRR 23‑1.8(a)

I. Introduction

The Appellate Division, Second Department’s decision in Morales v 88th Avenue Owner, LLC, 2025 NY Slip Op 07295 (Dec. 24, 2025), is a significant clarification of New York construction accident law in three distinct respects:

It further narrows the circumstances under which eye injuries from overhead work qualify as “elevation-related” accidents protected by Labor Law §240(1) (New York’s “Scaffold Law”).
It construes 12 NYCRR 23‑1.8(a) (Industrial Code eye protection rule) as inapplicable where the injured worker is not personally performing the hazardous operation, even if injured by its by-products (such as sparks) from nearby work.
It emphasizes that dismissals of third‑party and second third‑party complaints under CPLR 1010—based on undue delay and case‑management concerns—must be without prejudice.

The case arises from an eye injury suffered by a construction foreman who was struck by a spark from ironwork being done on a floor above him. The plaintiff sued the owner and general manager of the project under New York Labor Law §§240(1) and 241(6), among other theories, alleging that they failed to protect him from gravity‑related risks and from eye hazards covered by the Industrial Code.

The Supreme Court (Kings County) granted the plaintiff summary judgment on liability under §240(1) and under the §241(6) claim premised on 12 NYCRR 23‑1.8(a), and it also dismissed a second third‑party action brought by the owner and manager against two subcontractors with prejudice. The Second Department reversed in substantial part, denying the plaintiff’s summary judgment motion, searching the record to grant summary judgment to the owner and general manager on these statutory claims, and modifying the third‑party dismissal to be without prejudice.

This commentary analyzes the opinion’s reasoning, its reliance on prior precedent, the legal principles it clarifies, and the likely impact on New York construction accident litigation.

II. Summary of the Opinion

A. Parties and Roles

Plaintiff: Elihu Romero Morales, a foreman employed by Construction Directions, LLC, an excavation and concrete subcontractor.
Defendants / Second Third‑Party Plaintiffs:
- 88th Avenue Owner, LLC – the property owner;
- NY Developers & Managers, Inc. – the general manager of the construction project.
Second Third‑Party Defendants:
- Feinstein Iron Works, Inc. – ironwork subcontractor;
- Construction Realty Safety Group, Inc. – safety consultant/safety entity on the project.

B. Key Facts

Date of accident: May 11, 2017.
Location: A construction site in Queens.
Mechanism of injury: The plaintiff, working on one floor, was struck in the eye by a spark from ironwork being performed on the floor above.
Employment: Plaintiff was foreman for Construction Directions, LLC (excavation/concrete subcontractor), not an ironworker or welder.

C. Procedural History

2018: Plaintiff commenced an action against the owner (88th Avenue) and general manager (NY Developers), alleging:
- Labor Law §240(1) (elevation‑related liability), and
- Labor Law §241(6), premised in part on a claimed violation of 12 NYCRR 23‑1.8(a) (eye protection).
February 2019: 88th Avenue and NY Developers served their answer in the main action.
July 2023: They commenced a second third‑party action against Feinstein and Construction Realty, seeking contribution and common-law and contractual indemnification.
Motion practice in Supreme Court:
- Plaintiff moved for summary judgment on:
  - Liability under Labor Law §240(1); and
  - Liability under §241(6) to the extent based on 12 NYCRR 23‑1.8(a).
- Feinstein and Construction Realty separately cross‑moved under CPLR 1010 to dismiss the second third‑party complaint.
- Supreme Court (Sheares, J.) granted the plaintiff’s motion on the statutory liability issues and, effectively granting the cross‑motions, dismissed the second third‑party complaint with prejudice.
Appeal: 88th Avenue and NY Developers appealed.

D. Holdings of the Appellate Division

Labor Law §240(1):
- The plaintiff did not establish entitlement to summary judgment under §240(1).
- The court went further, “searching the record” under CPLR 3212(b), and granted 88th Avenue and NY Developers summary judgment dismissing the §240(1) claim, holding that:
  - Sparks from ironwork are not “objects that required securing,” and
  - The plaintiff’s injury did not arise from an “elevation-related risk” as contemplated by the statute, but rather from the “usual and ordinary dangers of a construction site.”
Labor Law §241(6) – 12 NYCRR 23‑1.8(a):
- The plaintiff failed to show that 12 NYCRR 23‑1.8(a) (eye protection requirement) applied to him, because he was not personally engaged in:
  - welding, burning, or cutting operations,
  - chipping, cutting, or grinding from which particles may fly, or
  - “any other operation which may endanger the eyes” within the meaning of the rule.
- Again, the court searched the record and granted defendants summary judgment dismissing the §241(6) claim insofar as predicated on 12 NYCRR 23‑1.8(a).
CPLR 1010 – Dismissal of Second Third‑Party Complaint:
- Supreme Court properly exercised its discretion under CPLR 1010 to dismiss the second third‑party complaint, due to the significant delay (over four years after the main answer) and the potential for undue delay of the main action.
- However, the Second Department held that CPLR 1010 authorizes dismissal only without prejudice; it does not permit a with prejudice dismissal.
- The order was therefore modified to specify that the second third‑party complaint is dismissed without prejudice.

III. Precedents and Authorities Cited

1. Labor Law §240(1) – Elevation‑Related Risk Jurisprudence

The court situates its holding within a longstanding line of New York Court of Appeals and Appellate Division cases defining the scope of Labor Law §240(1). Key citations include:

Rocovich v Consolidated Edison Co., 78 NY2d 509 (1991)
- Defined §240(1) as addressing “special hazards” arising from significant elevation differentials:
  “a significant risk inherent in the particular task because of the relative elevation at which the task must be performed or at which materials or loads must be positioned or secured.”
- Morales quotes this formulation indirectly via later authorities (Ramones), reinforcing that §240(1) is not a general workplace safety statute.
Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 (1993)
- Clarified that §240(1) covers only those accidents where a protective device (scaffold, hoist, ladder, etc.) has proved inadequate to protect against harm flowing directly from gravity.
- Morales quotes Ross’s key language: the statute is limited to accidents where a protective device “proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity.”
Narducci v Manhasset Bay Assoc., 96 NY2d 259 (2001)
- Held that not every falling object accident is within §240(1); the object must:
  - almost always be in the process of being hoisted or secured, or
  - be one that should have been but was not secured.
- Morales cites Narducci (via Ramones) to reinforce that “not every object that falls on a worker” triggers §240(1).
Ortiz v Varsity Holdings, LLC, 18 NY3d 335 (2011)
- Restated the distinction between ordinary construction risks and extraordinary elevation risks covered by §240(1).
- Morales cites Ortiz for the principle that courts must distinguish “usual and ordinary dangers” of a construction site from the “extraordinary elevation risks” contemplated by §240(1).
Cruz v 451 Lexington Realty, LLC, 218 AD3d 733 (2d Dept 2023)
- Involved debris or particles falling and addressed whether such items are “objects that required securing.”
- Morales relies on Cruz to hold that sparks from ironwork are not objects that “required securing for the purpose of the undertaking.”
Moncayo v Curtis Partition Corp., 106 AD3d 963 (2d Dept 2013)
- Discussed when smaller items, tools, or debris qualify as objects requiring securing under §240(1).
- Morales cites Moncayo to support the notion that certain small, incidental materials (or here, sparks) do not fall within §240(1)’s scope.
Giraldo v Highmark Ind., LLC, 226 AD3d 874 (2d Dept 2024)
- Applied the distinction between ordinary risks and elevation risks; Morales follows this case to characterize plaintiff’s injury as an “ordinary” construction hazard.
Whitehead v City of New York, 79 AD3d 858 (2d Dept 2010)
- Another application of the ordinary vs. elevation hazard distinction.
- Morales cites Whitehead to reinforce that some site accidents, even with an elevation dimension, are not §240(1) events.
Ramones v 425 County Rd., LLC, 217 AD3d 977 (2d Dept 2023)
- Provides the modern articulation of §240(1) standards used in Morales—specifically, the requirement of “significant risk” and the limitation to gravity‑related harms.
Grabowski v Consolidated Edison Co. of N.Y., Inc., 72 AD3d 888 (2d Dept 2010)
- Supports the court’s authority under CPLR 3212(b) to search the record and grant summary judgment to a nonmovant when the record clearly demonstrates that §240(1) does not apply.

2. Labor Law §241(6) and 12 NYCRR 23‑1.8(a)

Regarding the §241(6) claim based on eye protection, the court relies on cases defining the reach of that statute and the specific Industrial Code provision:

Guaman v 178 Ct. St., LLC, 200 AD3d 655 (2d Dept 2021)
- Restates the basic §241(6) framework: owners and contractors have a nondelegable duty to provide “reasonable and adequate protection and safety,” but liability arises only where:
  - a specific, applicable Industrial Code provision is violated, and
  - the violation proximately causes the injury.
- Morales quotes Guaman to frame the general test.
Aragona v State of New York, 147 AD3d 808 (2d Dept 2017)
- Also articulates the requirement of a concrete, applicable Industrial Code regulation as a predicate for §241(6) liability.
Chuqui v Cong. Ahavas Tzookah V'Chesed, Inc., 226 AD3d 960 (2d Dept 2024)
- Addresses the scope of 12 NYCRR 23‑1.8(a) and emphasizes that it applies where the injured worker is personally involved in certain hazardous operations (e.g., welding, cutting) or in “any other operation which may endanger the eyes.”
- Morales cites Chuqui in concluding that the plaintiff here did not demonstrate such personal engagement.
Zamajtys v Cholewa, 84 AD3d 1360 (2d Dept 2011)
- Supports the proposition that, where the record establishes that an Industrial Code section is inapplicable as a matter of law, the court may grant summary judgment dismissing the §241(6) claim premised on that section.
- Morales relies on Zamajtys to justify searching the record and awarding summary judgment to defendants on the 23‑1.8(a) theory.
Giraldo v Highmark Ind., LLC, 226 AD3d 874 (2d Dept 2024)
- Cited again, this time to support the authority to search the record and dismiss inapplicable §241(6) theories.

3. Summary Judgment Standards and “Searching the Record”

Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 (1985)
- Stands for the familiar proposition that if the movant fails to establish entitlement to judgment as a matter of law, the motion must be denied “regardless of the sufficiency of the opposing papers.”
- Morales cites Winegrad for denying the plaintiff’s motion once the court concludes that the prima facie showing was not made.
CPLR 3212(b)
- The statute expressly allows the court to “search the record” when a motion for summary judgment is made and grant summary judgment to any party, even a nonmovant, where it appears that the party is entitled to judgment as a matter of law.
- Morales uses CPLR 3212(b) to grant judgment to the owner and general manager dismissing the §240(1) claim and the §241(6) theory based on 23‑1.8(a).

4. CPLR 1010 – Third‑Party and Second Third‑Party Practice

The dismissal of the second third‑party complaint is grounded in the trial court’s discretion under CPLR 1010, and the Second Department’s clarification of the scope of that discretion.

George Cohen Agency, Inc. v Perlman Agency, Inc., 69 AD2d 725 (1st Dept 1979)
- A leading interpretation of CPLR 1010, emphasizing that the statute is designed as a case‑management tool: the court may dismiss a third‑party claim, order separate trials, or make other just orders to avoid undue delay or prejudice.
- Morales quotes its description of CPLR 1010 as a “safety valve” (via later cases).
Soto v CBS Corp., 157 AD3d 740 (2d Dept 2018)
- Confirms that the court may dismiss a third‑party complaint when it would unduly delay resolution of the main action or prejudice substantial rights.
- Also explains that deliberate or knowing delay in commencing third‑party actions justifies dismissal under CPLR 1010.
- Morales heavily relies on Soto to uphold the dismissal of the second third‑party complaint due to the four‑year delay.
Annanquartey v Passeser, 260 AD2d 517 (2d Dept 1999)
- Another application of CPLR 1010, reinforcing that third‑party practice should not be allowed to unduly complicate or delay the main action.
Skolnick v Max Connor, LLC, 89 AD3d 443 (1st Dept 2011)
- Supports dismissal where the third‑party plaintiff deliberately delays in bringing the third‑party action.
- Morales invokes this principle: the record showed that the owner and manager delayed without showing ignorance of the necessary facts.
Range v Trustees of Columbia Univ. in the City of N.Y., 130 AD3d 515 (1st Dept 2015)
- Cited in Morales by way of contrast: in Range, dismissal was not warranted where the third‑party plaintiff had a legitimate lack of knowledge regarding necessary facts.
- By contrast, in Morales, the defendants did not claim lack of knowledge.
Cipollina v Kent, 52 AD2d 632 (2d Dept 1976)
- Authority for the specific point that CPLR 1010 dismissals should be without prejudice.
- Morales follows Cipollina in modifying the Supreme Court order to reflect a dismissal without prejudice.

IV. The Court’s Legal Reasoning

1. Labor Law §240(1): Why the Eye Injury from Overhead Sparks Is Not an Elevation‑Related Risk

The central question under Labor Law §240(1) was whether the plaintiff’s eye injury, caused by a spark from ironwork overhead, fell within the category of gravity‑related hazards contemplated by the statute.

a. No “Object Requiring Securing”

The plaintiff contended, in effect, that the spark or particles descending from above constituted a falling object hazard. The Second Department rejected this, holding:

“the plaintiff failed to establish, prima facie, that the sparks resulting from the ironwork were objects that required securing for the purpose of the undertaking (see Cruz …; Moncayo …).”

This reflects two intertwined doctrinal points from Narducci and its progeny:

For §240(1) to apply in a falling object scenario, the object must be one that, due to the nature of the work, was required to be hoisted or secured.
Incidental by‑products of work—like sparks, small debris, or fragments not part of the materials being hoisted or secured—are generally not “objects” that the statute was designed to address.

In Morales, the ironwork above generated a spark that hit the plaintiff. The court treated such sparks as a typical by‑product of metal work, not as an independent “object” requiring elevation safety devices.

b. Ordinary Construction Risk vs. Extraordinary Elevation Hazard

The court also held that the injury did not arise from a qualifying elevation risk:

“[The plaintiff did not establish] that his alleged injuries arose from an elevation-related risk contemplated by Labor Law §240(1), as opposed to the usual and ordinary dangers of a construction site (see Giraldo …; Whitehead …).”

This tracks the Court of Appeals’ framework in Rocovich, Ross, and Ortiz—§240(1) is not a broad workplace safety statute; it is limited to:

Significant height differentials, or
Protecting workers from gravity‑induced harm to people or loads being hoisted or positioned at elevation, where safety devices fail or are absent.

In Morales, although there was an upper floor and a lower floor, the injury was not caused by the failure of a scaffold, ladder, hoist, or other enumerated device, nor by the fall of a hoisted load or worker. It resulted from a typical by‑product of overhead metal work. The court thus categorized it under “usual and ordinary dangers of a construction site” – outside the ambit of §240(1).

C. Denial of Plaintiff’s Motion and Grant of Summary Judgment to Defendants

Applying Winegrad, the court held that since the plaintiff failed to show, as a matter of law, that his accident fell within §240(1), his summary judgment motion had to be denied “regardless of the sufficiency of the opposition papers.”

Importantly, the court then used its CPLR 3212(b) power to:

“search the record,” and
award summary judgment to 88th Avenue and NY Developers dismissing the §240(1) cause of action, finding as a matter of law that the statute was inapplicable.

This is a strong, defendant‑favorable ruling: not only does the plaintiff lose his motion, he loses the §240(1) claim entirely at the appellate stage.

2. Labor Law §241(6) and 12 NYCRR 23‑1.8(a): Personal Engagement in Hazardous Operations

The §241(6) claim at issue was premised on an alleged violation of 12 NYCRR 23‑1.8(a), which provides, in relevant part, that:

“Every person who is engaged in any welding, burning or cutting operations or in any chipping, cutting or grinding operation from which particles may fly or in any other operation which may endanger the eyes shall be provided with and shall wear approved eye protection.”

The key interpretive question: Did this provision apply to a foreman performing different work who was injured by sparks from welding or cutting being done by others on a floor above?

a. Requirement That the Worker Be “Engaged In” the Hazardous Operation

The court held:

“the plaintiff failed to establish, prima facie, a violation of 12 NYCRR 23-1.8(a), as he did not demonstrate that he was personally engaged in welding, burning, or cutting operations, or in chipping, cutting, or grinding any material from which particles may fly, or was engaged in ‘any other operation which may endanger the eyes’ (id.; see Chuqui …).”

Two important limits emerge:

Personal engagement requirement: The phrase “every person who is engaged in” is read strictly. It is not enough that:
- someone nearby is performing welding or cutting, or
- the plaintiff is in proximity to the hazardous operation.
The plaintiff must be personally performing or engaged in such a task to fall under the rule’s protection.
“Any other operation which may endanger the eyes” is not boundless:
- That catch‑all provision is interpreted in context—alongside welding, burning, cutting, chipping, grinding—meaning similar inherently eye‑endangering operations that the worker is himself performing.
- Merely being in an area where such work is ongoing is insufficient, at least in the Second Department’s reading.

Thus, because Morales was not the ironworker or welder, and was not personally carrying out any comparable operation, 23‑1.8(a) was held inapplicable to him.

b. Summary Judgment and Record Search

As with §240(1), the court:

denied plaintiff’s summary judgment motion for failing to make a prima facie showing of a violation, and
searched the record under CPLR 3212(b) and granted summary judgment to the owner and general manager dismissing the §241(6) claim insofar as it relied on 23‑1.8(a).

The court cited Zamajtys v Cholewa to stress that when an Industrial Code provision is inapplicable as a matter of law, that component of a §241(6) claim must be dismissed.

The decision does not address other Industrial Code predicates the plaintiff may have alleged under §241(6) – it narrows its ruling to the 23‑1.8(a) theory.

3. CPLR 1010 and the Dismissal of the Second Third‑Party Action

The owner and general manager commenced a second third‑party action in July 2023—more than four years after answering the complaint in February 2019—against Feinstein (ironwork) and Construction Realty (safety). Both second third‑party defendants invoked CPLR 1010, which provides:

“The court may dismiss a third-party complaint without prejudice, order a separate trial of the third-party claim or of any separate issue thereof, or make such other order as may be just.”

a. Justification for Dismissal Under CPLR 1010

The court, echoing Soto and related cases, characterizes CPLR 1010 as:

“a safety valve for cases in which the third-party claim will unduly delay the determination of the main action or prejudice the substantial rights of any party.”

The record showed:

88th Avenue and NY Developers waited over four years after their answer to file the second third‑party complaint.
They offered no claim that they were unaware of the facts necessary to bring the claims earlier (distinguishing Range).

Relying on Soto and Skolnick, the court concluded:

“Where the record indicates that a third-party plaintiff knowingly and deliberately delayed in commencing the third-party action, the Supreme Court acts within its discretion to dismiss the third-party complaint.”

Thus, the Supreme Court’s decision to dismiss the second third‑party complaint, in order to avoid undue delay in resolving the main action, was affirmed as a proper exercise of discretion.

b. Correction: Dismissal Must Be “Without Prejudice”

However, the trial court’s order stated that the dismissal was “with prejudice.” The Second Department corrected this:

CPLR 1010 expressly authorizes dismissal “without prejudice.”
Precedent (Cipollina v Kent) makes clear that this discretionary, case‑management‑driven dismissal is not an adjudication on the merits.

Accordingly, the order was modified to:

“direct that the dismissal of the second third-party complaint is without prejudice.”

This distinction is critical: a “with prejudice” dismissal would bar those indemnity or contribution claims as res judicata; “without prejudice” permits the owner and general manager to pursue such claims in a separate action, subject to any applicable limitations or defenses.

V. Complex Concepts Simplified

1. Labor Law §240(1) – The “Scaffold Law” in Practice

Labor Law §240(1) requires owners and contractors to provide certain safety devices (scaffolds, ladders, hoists, etc.) for workers performing tasks at height or involving elevation risks. However, courts have consistently held:

It is not a general workplace safety statute.
It applies only to accidents where:
- a worker falls from a height, or
- an object falls on a worker, in circumstances where:
  - the object was being hoisted or secured (or should have been), and
  - a safety device failed or was missing.

In other words, if a worker is injured by an ordinary hazard on a job site—like tripping, or being hit by minor flying particles that are not hoisted materials—§240(1) generally does not apply.

2. “Elevation‑Related Risk” vs. “Ordinary Construction Risk”

Elevation‑related risk: Dangers specifically tied to height differences, such as:
- falling off a ladder or scaffold;
- being struck by a heavy beam that falls while being hoisted.
Ordinary construction risk: General job‑site hazards (debris, minor falling particles, equipment in use) that do not involve the distinct risk of working at significant elevation.

Morales places flying sparks from overhead ironwork firmly in the “ordinary construction risk” category.

3. Labor Law §241(6) and Industrial Code Provisions

Section 241(6) creates liability when:

There is a specific, concrete Industrial Code regulation applicable to the situation, and
That regulation is violated, and
The violation causes the worker’s injury.

12 NYCRR 23‑1.8(a) is such a regulation. It requires eye protection for workers engaged in particular hazardous operations such as welding, burning, cutting, or grinding.

Morales clarifies that:

Being simply present near such operations is not enough.
The injured worker must personally be performing the hazardous operation, or a recognized equivalent, to invoke 23‑1.8(a).

4. “Summary Judgment” and “Searching the Record”

Summary judgment is a procedural device used to resolve a case or claim without trial when there are no genuine issues of material fact and one party is entitled to judgment as a matter of law.

The moving party must first make a prima facie showing that it is entitled to judgment.
If it fails to do so, the motion is denied regardless of what the opposing side submits (Winegrad).

Under CPLR 3212(b), if any party moves for summary judgment, the court can:

“search the record” – meaning it can look beyond the arguments of the movant and consider whether some other party (even one that did not move) is clearly entitled to summary judgment based on the evidence in the record.

In Morales, the plaintiff’s motion opened the door for the court to examine whether the defendants were actually entitled to judgment as a matter of law on the statutory claims—and the court found that they were.

5. Third‑Party and Second Third‑Party Actions; CPLR 1010

In New York practice:

A third‑party action is when a defendant brings in another party, asserting that party is responsible for all or part of the plaintiff’s damages (e.g., for indemnification or contribution).
A second third‑party action arises when a third‑party defendant in turn brings in another party, or (as here) when another layer of third‑party practice is introduced.

CPLR 1010 gives courts discretion to manage such claims so they do not overwhelm or unduly delay the main action. The court can:

Dismiss the third‑party complaint without prejudice;
Order separate trials for the main action and third‑party action; or
Enter any other just order.

“Without prejudice” means the claim is not being decided on its merits—it can be started again in a separate lawsuit if procedural and time‑limit requirements are met.

VI. Impact and Practical Significance

1. For Plaintiffs: Narrower Avenues Under §240(1) and 23‑1.8(a)

Eye injuries from overhead sparks are unlikely to be §240(1) cases.
- Morales strengthens the defense argument that such injuries are ordinary job‑site risks, not elevation hazards.
Workers not personally engaged in welding/cutting cannot rely on 23‑1.8(a).
- Even if they are injured by sparks or debris from others’ operations, plaintiffs must show they themselves were engaged in such operations or in an equivalent eye‑endangering task.
Strategic pleading under §241(6):
- Plaintiffs will need to carefully identify alternative Industrial Code provisions applicable to eye injuries (e.g., general protection from flying particles or unsafe coordination of trades) when 23‑1.8(a) cannot be invoked.

2. For Owners, Contractors, and Construction Managers

Stronger defenses against “Scaffold Law” claims in by‑product injury cases:
- When injuries arise from flying sparks, small fragments, or other incidental materials, defendants can cite Morales to argue:
  - there was no “object requiring securing,” and
  - the harm was not a gravity‑related elevation risk.
Clarified limits on Industrial Code eye‑protection claims:
- Defendants can challenge the applicability of 23‑1.8(a) where the injured worker was not personally conducting welding, cutting, or similar operations.

3. For Subcontractors and Safety Consultants

CPLR 1010 as a defense to late‑filed third‑party actions:
- Subcontractors and safety entities facing delayed third‑party claims can move under CPLR 1010, citing Morales, Soto, and Skolnick to argue that:
  - Delays of several years are presumptively prejudicial or cause undue delay of the main action.
  - The third‑party plaintiff’s knowing failure to act earlier justifies dismissal.
But note: dismissals are without prejudice:
- Subcontractors should be aware that such dismissals do not eliminate their ultimate exposure—owners and GCs may still pursue them in separate actions.

4. For Litigators and Courts: Timing and Case Management

Importance of early third‑party practice:
- Defendants should bring third‑party (and second third‑party) claims early in the litigation to avoid CPLR 1010 dismissals.
- A four‑year delay, as in Morales, is particularly vulnerable to dismissal when no good cause is shown.
Use of record‑searching powers at the appellate level:
- Morales highlights that when a plaintiff moves for summary judgment on statutory liability, appellate courts can:
  - reject the plaintiff’s motion, and
  - affirmatively grant summary judgment to defendants on the same record.
- This raises the stakes for plaintiffs moving on §240(1) and §241(6) claims: a failed motion may not just be denied; it may end the claim entirely.

5. Doctrinal Significance

Continued narrowing of §240(1):
- Morales confirms the trend of limiting §240(1) to classic “falling worker” and “falling object” scenarios with clear elevation devices, rejecting attempts to stretch it to cover all injuries with a vertical component.
Contextual reading of Industrial Code’s catch‑all “any other operation” language:
- The decision reinforces that such catch‑all phrases are not read in isolation, but in the context of the enumerated activities (welding, cutting, grinding, etc.), keeping the regulation confined to similarly hazardous tasks.
Clarification of CPLR 1010’s remedial nature:
- By insisting that dismissals be without prejudice, Morales underscores that CPLR 1010 is about docket control and fairness to existing parties, not adjudicating the substantive merits of third‑party claims.

VII. Conclusion

Morales v 88th Avenue Owner, LLC stands at the intersection of New York’s construction safety statutes and civil procedure. Substantively, it narrows the reach of Labor Law §240(1) and 12 NYCRR 23‑1.8(a) in the context of eye injuries from overhead sparks, emphasizing that:

Such sparks are not “objects requiring securing” and typically represent ordinary construction risks, not the extraordinary elevation hazards covered by §240(1); and
Industrial Code eye‑protection rules apply only where the injured worker is personally engaged in the specified hazardous operation (or a closely analogous one).

Procedurally, the decision reinforces the trial court’s broad case‑management authority under CPLR 1010 to dismiss third‑party and second third‑party actions when delayed, but clarifies that such dismissals must be without prejudice, preserving the substantive claims for possible separate litigation.

Taken together, Morales offers owners, contractors, and their counsel a potent set of arguments to limit expansive statutory liability claims in certain construction accident scenarios, while simultaneously reminding defendants to act promptly in asserting indemnity and contribution rights. For practitioners, the case is an important touchstone for the boundaries of the Scaffold Law, the scope of Industrial Code eye‑protection obligations, and the strategic management of complex, multi‑party construction litigation.