Preclusion for Undisclosed Nonparty Witness Affidavits and Liability Under Labor Law § 240(1) for Falls From Improvised Elevated Platforms

1. Introduction

Intriago v 18th Highline Assoc., LLC (2026 NY Slip Op 04286 [2d Dept July 8, 2026]) arises from a construction-site accident in which the plaintiff, Walter Intriago, allegedly fell while climbing down from a stack of doors roughly seven feet high after being directed to remove snow from the top. He sued the property owners and the general contractor, alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6).

The appeal presented three tightly connected issues:

  1. Whether the Supreme Court properly sanctioned defendants under CPLR 3126 by precluding reliance on a nonparty supervisor’s testimony/affidavit (Ricardo Morales) when defendants disclosed him only at the summary-judgment stage despite discovery demands and court orders.
  2. Whether defendants’ cross-motion for summary judgment dismissing claims (other than § 240(1)) was properly denied as untimely under CPLR 3212(a).
  3. Whether plaintiff established entitlement to summary judgment on liability under Labor Law § 240(1) based on being directed to work at elevation without safety devices.

2. Summary of the Opinion

The Appellate Division, Second Department affirmed the order in full. It held:

  • The trial court acted within its discretion in inferring willful and contumacious conduct from defendants’ repeated noncompliance with disclosure obligations and orders, and properly precluded reliance on the Morales affidavit/testimony under CPLR 3126.
  • Defendants’ cross-motion for summary judgment dismissing the common-law negligence claim and Labor Law §§ 200 and 241(6) claims was properly denied as untimely for lack of good cause.
  • Although the branch addressing § 240(1) could be considered because it was “nearly identical” to plaintiff’s timely § 240(1) motion, it failed on the merits: plaintiff’s deposition established a § 240(1) violation and proximate cause, and defendants raised no triable issue of fact (particularly after preclusion).

3. Analysis

A. Precedents Cited

(i) CPLR 3126 sanctions: willful/contumacious noncompliance and preclusion

  • Huseinovic v Lee Wilson Mgt., LLC, 230 AD3d 577, 579: Used for the governing standard that preclusion is “drastic” and requires a clear showing of willful and contumacious conduct; willfulness may be inferred from repeated failures and no reasonable excuse.
  • Llanos v Casale Constr. Servs., Inc., 188 AD3d 864, 865–866: Reinforces (1) the inference of willfulness from repeated noncompliance and (2) deference to the motion court’s discretion in crafting CPLR 3126 penalties.
  • Madonna Mgt. Servs., Inc. v R.S. Naghavi, M.D., PLLC, 172 AD3d 845, 847: Cited for appellate restraint—sanctions should not be disturbed absent an improvident exercise of discretion.
  • Smith v Usman, 218 AD3d 705, 707; Williams v New York City Tr. Auth., 57 AD3d 975, 976; Frenk v Frederick, 38 AD3d 593; and Jordan v Eureka Christian Fellowship, Inc., 242 AD3d 846: These cases support preclusion where a party fails to disclose witnesses in the face of demands and court orders—especially where the court issued a warning that noncompliance would result in preclusion. The Second Department relied on this line to validate preclusion even though the undisclosed witness was offered as a late-stage affidavit in summary-judgment motion practice.

(ii) Untimely summary judgment motions and the “nearly identical grounds” exception

  • Brill v City of New York, 2 NY3d 648, 651: The foundational authority that courts have “considerable discretion” to set summary-judgment deadlines and that lateness requires “good cause,” not merely the merits.
  • Munoz v Agenus, Inc., 207 AD3d 643, 644; Wittenberg v Long Is. Power Auth., 225 AD3d 730, 732; Dojce v 1302 Realty Co., LLC, 199 AD3d 647, 650: Cited for enforcing deadlines and the requirement that the movant demonstrate good cause for tardiness.
  • Wittenberg v Long Is. Power Auth., 225 AD3d at 732–733; Sheng Hai Tong v K & K 7619, Inc., 144 AD3d 887, 890: Provide the operative carve-out: an untimely motion/cross-motion may still be entertained where a timely motion was made on “nearly identical grounds.” The court applied this principle to the § 240(1) branch (but not to §§ 200/241(6) or negligence).

(iii) Labor Law § 240(1): elevation-related risk, proximate cause, and proof on summary judgment

  • McCarthy v Turner Const., Inc., 17 NY3d 369, 374: Cited for the core characterization of § 240(1) as imposing a nondelegable duty on owners/contractors to provide safety devices against elevation risks.
  • Rojas v 616 First Ave., LLC, 245 AD3d 750, 751: Reinforces the general § 240(1) framework as applied by the Second Department.
  • Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287; Von Hegel v Brixmor Sunshine Sq., LLC, 180 AD3d 727, 728: Used for the plaintiff’s required showing: statutory violation plus proximate cause.
  • Bustamante v BSD 370 Lexington, L.L.C., 247 AD3d 710, 711; Phillip v 525 E. 80th St. Condominium, 93 AD3d 578, 579; Naughton v City of New York, 94 AD3d 1, 8; Ford v HRH Const. Corp., 41 AD3d 639, 640–641: Cited as analogous authorities supporting summary judgment for a worker required to perform elevated work without appropriate protective devices, resulting in a fall. The stack of doors functioned as an improvised elevated platform; the absence of a ladder or fall protection was central to finding a § 240(1) violation.

B. Legal Reasoning

(i) Why preclusion was affirmed

The court treated the late disclosure of Morales—revealed only when defendants needed a fact-witness to counter plaintiff’s summary-judgment proof—as the culmination of repeated discovery noncompliance. Under the cited authorities, a court may infer “willful and contumacious” conduct from: (a) repeated failures to respond to demands or obey discovery orders and (b) lack of a reasonable excuse.

Critically, the presence of a final warning order strengthened the inference of willfulness and supported the proportionality of the sanction: defendants were not merely late; they acted in the face of an explicit notice that continued noncompliance would result in preclusion. The Second Department emphasized that sanctions under CPLR 3126 are entrusted to the motion court’s discretion and should be disturbed only for improvident exercise—an intentionally deferential standard.

Doctrinally, the decision underscores that preclusion is not limited to trial proof: it can also bar reliance on an undisclosed witness’s affidavit in summary-judgment practice, preventing a party from manufacturing a late factual dispute after withholding the witness’s identity during discovery.

(ii) Why most of defendants’ cross-motion was untimely—and why the § 240(1) branch could be considered anyway

Applying Brill v City of New York, the court enforced the deadline for summary-judgment motions and required “good cause” for lateness. Defendants made their cross-motion months after the deadline and did not justify the delay; thus, dismissal of the negligence/§§ 200 and 241(6) claims was properly denied as untimely.

However, the court recognized the “nearly identical grounds” doctrine (from Wittenberg v Long Is. Power Auth. and Sheng Hai Tong v K & K 7619, Inc.): because plaintiff timely moved on § 240(1) liability, defendants’ opposing § 240(1) request could be reached notwithstanding untimeliness. Even with that procedural benefit, defendants still lost on the merits.

(iii) Why plaintiff won summary judgment on Labor Law § 240(1)

Plaintiff’s deposition testimony established: (1) an elevation-related task—being directed to climb to the top of a seven-foot stack of doors to remove snow and then descend; (2) the absence of an appropriate safety device—his request for a ladder was denied and no fall-protection device was provided; and (3) a gravity-related accident—doors moved and he fell. Under the court’s § 240(1) authorities, that showing satisfied both a statutory violation and proximate cause.

Defendants’ main factual rebuttal was Morales’s affidavit, but it was precluded. With the affidavit excluded, defendants failed to raise a triable issue of fact. Accordingly, summary judgment on § 240(1) liability was affirmed, and defendants were not entitled to dismissal of that cause of action.

C. Impact

  • Discovery enforcement with real consequences: The opinion signals that parties who ignore witness-disclosure obligations risk losing the ability to rely on key fact witnesses, not only at trial but also in dispositive motion practice—particularly when a court has issued a conditional or “final” warning order.
  • No “late affidavit” escape hatch: Construction defendants often oppose § 240(1) summary judgment by producing supervisor affidavits disputing the worker’s account. This decision reduces the viability of that strategy when the witness was not timely disclosed.
  • Improvised elevated platforms remain high-risk under § 240(1): Treating a stack of doors as the worker’s means to access elevation reinforces that owners/contractors must provide proper devices (e.g., ladders/scaffolds) rather than allow workers to climb unstable materials.
  • Procedural nuance on untimely cross-motions: The decision reaffirms that the “nearly identical grounds” exception can permit consideration of an otherwise late cross-motion, but it does not revive unrelated claims or substitute for good cause under Brill.

4. Complex Concepts Simplified

  • Labor Law § 240(1) (“Scaffold Law”): A New York statute requiring owners and contractors to provide proper safety devices to protect workers from height-related (gravity) risks. If the lack of a required device leads to a fall and injury, liability can attach even if the owner/contractor did not supervise the work.
  • Nondelegable duty: The duty cannot be shifted to someone else; an owner/contractor can be liable even if another entity or subcontractor was responsible on site.
  • Proximate cause (in this context): The missing or inadequate safety device must be a substantial reason the accident happened.
  • CPLR 3126 preclusion: A sanction where the court bars a party from using certain evidence (such as a witness) because that party disobeyed discovery obligations/orders. Courts reserve it for serious, willful noncompliance.
  • Willful and contumacious: Legal shorthand for intentional or stubbornly disobedient behavior—often inferred from repeated failures to comply without a credible excuse.
  • Untimely summary judgment and “good cause”: Missing a court-ordered deadline generally requires a concrete, acceptable explanation for the delay; having a potentially strong argument is not enough.
  • “Nearly identical grounds” exception: Even if one party files late, the court may consider the late motion if the other party timely filed a motion raising essentially the same issues, so the court is already addressing that question.

5. Conclusion

Intriago v 18th Highline Assoc., LLC is a procedural-and-substantive reaffirmation of two core principles in New York construction litigation. First, courts will enforce discovery orders by precluding undisclosed witnesses—especially where nondisclosure persists after explicit warnings—thereby preventing “surprise affidavits” from derailing summary judgment. Second, directing a worker to climb and work from an unstable, elevated stack of materials without a ladder or other protective device supports summary judgment for the worker under Labor Law § 240(1) when a gravity-related fall follows.