Triable Dispute Over Whether the Accident Occurred Defeats Labor Law § 240(1) Summary Judgment; Underlying Landowner Without Nexus Not Liable as an “Owner”; Owners Must Prove Reasonable Inspection to Negate Constructive Notice Under Labor Law § 200

1. Introduction

Zhivov v. Kings Bay Hous. Co., Inc. (2026 NY Slip Op 02871 [249 AD3d 803] [2d Dept May 6, 2026]) arises from a 2017 renovation/demolition project in a cooperative building. Plaintiff Artur Zhivov claimed he fell from an unsecured A-frame ladder because the apartment floor was uneven, sustaining injuries. He sued:

  • Kings Bay Housing Co., Inc. (“KB Housing”): the cooperative corporation that owns the building.
  • Kings Bay Section One Land, LLC (“KB Section One”): owner of the land beneath the building, leased to KB Housing.

The central issues on appeal/cross-appeal were:

  • Whether plaintiff was entitled to summary judgment on Labor Law § 240(1) against KB Housing (and whether KB Section One could be liable under the Labor Law as an “owner”).
  • Whether KB Housing was entitled to summary judgment dismissing common-law negligence and Labor Law § 200 claims, particularly on the question of constructive notice of an allegedly uneven floor.

2. Summary of the Opinion

The Second Department modified the Supreme Court’s order by denying plaintiff’s summary judgment motion on Labor Law § 240(1) against KB Housing. Although plaintiff made a prima facie showing (ladder shaking/fall), defendants raised a triable issue of fact as to whether the accident occurred at all, relying on the boss’s testimony and video.

The court otherwise affirmed:

  • KB Section One obtained summary judgment dismissing all claims against it because, as a landowner with a land-only lease and no nexus to the injury-producing work or building, it was not liable as an “owner” under the Labor Law on these facts.
  • KB Housing was not entitled to summary judgment dismissing Labor Law § 200 and common-law negligence claims because it failed to establish lack of constructive notice of the allegedly uneven floor (no proof of when/if inspections occurred or that a reasonable inspection would not have revealed the defect).

3. Analysis

3.1 Precedents Cited

A. Labor Law § 240(1): elevation risk, statutory violation, and causation

  • Keen v Tishman Constr. Corp. of N.Y.: Used for the governing § 240(1) framework (nondelegable duty/absolute liability where failure of safety device causes elevation-related injury) and for the proposition that a ladder that shakes/causes a fall can establish a prima facie § 240(1) case—yet still be defeated by triable factual disputes.
  • Saint v Syracuse Supply Co.: Quoted (via Keen) for the foundational statement that § 240(1) imposes a nondelegable duty and “absolute liability” when injuries are proximately caused by failure to provide proper safety devices for elevation-related risks.
  • Fuentes v 257 Toppings Path, LLC: Cited (via Keen) for the elements: plaintiff must show both a statutory violation and proximate causation.
  • Cahill v Triborough Bridge & Tunnel Auth.: Invoked (via Keen) for the limiting principle that there is no § 240(1) recovery when there is no statutory violation or when plaintiff is the sole proximate cause. Although the court did not decide sole proximate cause, Cahill frames the liability boundaries.

B. Proof disputes on summary judgment: credibility, authentication, and “did it happen?”

  • Schultheis v Arcate: Cited to support the court’s refusal to deem the boss’s testimony “incredible as a matter of law.” The court treated credibility as a jury issue where testimony is not impossible on its face.
  • People v Abrams and Read v Ellenville Natl. Bank: Cited for the proposition that video evidence may be considered on summary judgment when properly authenticated. The video showing plaintiff leaving “under his own power” was part of the evidentiary basis for a factual dispute about the occurrence/severity of the alleged accident.

C. Who is an “owner” under the Labor Law: fee ownership, noncontracting ownership, and the “nexus” requirement

  • Sanatass v Consolidated Inv. Co., Inc.: Quoted for the broad principle that a fee owner landlord may be liable under the Labor Law even if the premises are leased and controlled by another entity and even if the owner lacked the means to protect the worker. The court used this as a starting point to contrast with the narrower rules governing noncontracting owners with limited property interests.
  • Churaman v C&B Elec., Plumbing & Heating, Inc. and Bermejo v New York City Health & Hosps. Corp.: Cited alongside Sanatass to reinforce that certain ownership interests can trigger Labor Law liability despite delegation or lack of direct control—again setting the stage for why KB Section One’s interest was different.
  • Morton v State of New York: Quoted for the key limitation: ownership of the premises “standing alone” is not sufficient for § 241(6) liability where the owner did not contract for the work; ownership is necessary but not sufficient. While the opinion’s “nexus” discussion is framed around § 241(6), it functions here as the analytical template for excluding a land-only lessor with no meaningful connection to the building/unit work.
  • Paul v Village of Quogue: Cited (quoting Morton) for the rule that a noncontracting owner is liable only where there exists “some nexus” between the owner and the worker, such as via lease/easement/other property interest.
  • Guryev v Tomchinsky: Cited for the caution that Labor Law “owner” liability can turn on fine distinctions about ownership and control of the injury-producing work. The court relied on this to emphasize that KB Section One’s land-only ownership, without building interest or supervisory authority, fell on the non-liability side of the line.

D. Labor Law § 200 / common-law negligence: dual categories and constructive notice

  • Rodriguez v HY 38 Owner, LLC and Ortega v Puccia: Cited for the two-category framework under § 200: (1) dangerous/defective premises conditions, and (2) manner of work. Rodriguez is also used for the procedural point that when a case alleges both, a movant must address both standards.
  • Marquez v L & M Dev. Partners, Inc.: Cited (via Rodriguez) to require defendants to address both liability standards when defects in both premises and work manner are alleged.
  • Shaughnessy v Huntington Hosp. Assn. and Giovanniello v E.W. Howell, Co., LLC: Cited for the demanding burden on a defendant seeking summary judgment in “dual cause” cases: the evidence must exonerate it as a matter of law for all potential concurrent causes, with no triable issues under either standard.
  • Abelleira v City of New York and Khan v Khan: Used to state the premises-condition rule: liability exists where the owner/contractor had site control and created the condition or failed to remedy it with actual/constructive notice.
  • Titov v V&M Chelsea Prop., LLC and Valentin v Stathakos: Cited for the definition of constructive notice—visible and apparent, existing long enough to be discovered and corrected.
  • Costa v Sterling Equip., Inc.: Cited for the summary judgment burden: the owner must show it neither created the condition nor had actual/constructive notice.
  • White v Village of Port Chester: Applied to fault KB Housing’s proof: without evidence of when the floor was last inspected/viewed, KB Housing could not establish lack of constructive notice.
  • Bonkoski v Condos Bros. Constr. Corp. and Zholanji v 52 Wooster Holdings, LLC: Used to reinforce that defendants must show not only timing/inspection evidence, but also that the defect would not have been discovered upon reasonable inspection.
  • Winegrad v New York Univ. Med. Ctr.: Cited for the procedural rule that where the movant fails to make a prima facie showing on summary judgment, the motion must be denied regardless of opposition’s strength.

3.2 Legal Reasoning

A. § 240(1): Prima facie showing is not enough if there is a triable issue whether the accident happened

The court accepted that plaintiff’s deposition testimony (ladder shaking, fall) can satisfy the prima facie burden under § 240(1), consistent with ladder-fall precedents. But the court held summary judgment inappropriate because defendants produced evidence raising a genuine dispute about the threshold factual predicate: did the accident occur at all?

Two proof points mattered:

  • The boss’s deposition testimony (Boris Levin), which the court declined to discard as legally incredible, meaning credibility remained for the factfinder.
  • Authenticated video evidence showing plaintiff leaving without apparent injury, supporting an inference inconsistent with the claimed fall/injury event.

The result is doctrinally significant: even in a statute often associated with “absolute liability,” summary judgment still requires the absence of genuine disputes over the event itself and causation.

B. KB Section One: A land-only owner can fall outside Labor Law “owner” liability where there is no contractual role, no control, and no nexus to the building/unit work

KB Section One obtained dismissal by showing:

  • It did not contract for the work and had no authority to supervise/control it.
  • Its ownership interest was limited to the land; it had no interest in the building or apartment unit where the work occurred.
  • The land lease to KB Housing concerned only the land and did not involve the building or apartment units.

Using Morton/Paul/Guryev’s “nexus” concept, the court treated KB Section One’s limited real-property interest as too remote from the injury-producing work to justify Labor Law liability on these facts. Plaintiff failed to raise a triable fact issue in response.

C. KB Housing: Failure to negate constructive notice defeats summary judgment on § 200 and negligence

Plaintiff alleged both (i) a premises defect (uneven floor) and (ii) work-performance issues (ladder use during demolition). Under Rodriguez/Marquez/Shaughnessy, KB Housing had to win under both standards. The court focused on the premises route and held KB Housing did not meet its prima facie burden because it offered no evidence of:

  • when the floor was last inspected/viewed by maintenance staff, and
  • whether a reasonable inspection would have revealed the allegedly uneven condition.

Without that inspection/visibility proof, KB Housing could not establish lack of constructive notice as a matter of law, requiring denial under Winegrad regardless of plaintiffs’ opposition.

3.3 Impact

  • § 240(1) practice—defendants’ pathway to defeat plaintiff’s summary judgment: The decision underscores that a plaintiff’s ladder-fall narrative, even if prima facie sufficient, will not secure summary judgment where defendants present competent evidence disputing the accident’s occurrence (including authenticated video and non-incredible witness testimony). Litigants should expect closer attention to “event proof” (time, reporting, surveillance, witness accounts) in § 240(1) motions.
  • Defining “owner” in multi-entity property structures: For properties with separated interests (e.g., land ownership vs. building/co-op ownership), the decision supplies a practical template: land-only ownership, without contractual involvement, supervisory authority, or lease-based nexus to the building/unit work, may be insufficient for Labor Law exposure. This may influence pleading strategy and early dispositive motions in complex ownership/ground lease arrangements.
  • § 200 / negligence—constructive notice requires inspection evidence: The case reinforces that owners seeking summary judgment must come forward with concrete inspection/maintenance proof (timing, practice, observations), and—critically—evidence that a reasonable inspection would not have revealed the condition. Absence of that proof can be fatal at the prima facie stage.

4. Complex Concepts Simplified

  • Labor Law § 240(1) “nondelegable duty” and “absolute liability”: The owner/contractor cannot avoid responsibility by delegating safety to others. If a required safety device is missing/inadequate and that failure causes an elevation injury, liability generally follows. But “absolute” does not mean automatic summary judgment—facts about whether the accident occurred and whether the statute was violated still matter.
  • Prima facie burden on summary judgment: The moving party must present enough admissible evidence to win as a matter of law if uncontradicted. If the movant fails at this step, the motion is denied even if the opponent’s papers are weak (Winegrad).
  • Triable issue of fact: A genuine dispute requiring a trial—often because reasonable factfinders could reach different conclusions based on the evidence.
  • Constructive notice: Even if the owner did not actually know of a defect, it can be treated as knowing if the defect was visible/apparent and existed long enough that a reasonable inspection would have found it. That is why inspection timing and practices are central.
  • Authentication of video evidence: A foundation must be laid showing the video is what it purports to be (e.g., where it came from, how it was recorded/kept, and that it fairly depicts the scene).
  • “Nexus” for a noncontracting owner: When an owner did not hire for the work and lacks direct involvement, courts look for a legally meaningful connection—through a lease, easement, or similar property interest—to the worksite and work that caused the injury.

5. Conclusion

Zhivov delivers three practical rules with broad litigation consequences: (1) a plaintiff’s prima facie § 240(1) ladder-fall showing can be defeated by competent evidence creating a factual dispute over whether the accident occurred; (2) a land-only owner/lessor may escape Labor Law “owner” liability where it neither contracted for nor controlled the work and lacks a sufficient nexus to the building/unit where the injury occurred; and (3) owners seeking to dismiss § 200 and negligence claims must negate constructive notice with concrete inspection-related proof, not general denials.