Background
A construction worker sued 211 Schermerhorn Development and related defendants after an alleged workplace accident, asserting common-law negligence and claims under Labor Law §§ 200, 240(1), and 241(6). Section 240(1), commonly called the Scaffold Law, imposes elevation-safety duties on owners, contractors, and their agents.
After the note of issue placed the case on the trial calendar, another party made a timely summary-judgment motion focused on particular claims. More than six months after the note of issue, the owner and contractor defendants cross-moved for summary judgment dismissing all of the worker’s theories. They supplied no explanation for the delay.
Supreme Court considered the late cross-motion and dismissed the claims. It also denied the worker’s attempt to amend the bill of particulars to add Industrial Code provisions supporting the § 241(6) claim. The appeal required the Second Department to separate branches of a cross-motion that tracked the timely motion from those raising different issues.
The Court’s Holding
The Second Department held that the negligence, Labor Law § 200, and Scaffold Law § 240(1) branches should not have been considered. A court may entertain an otherwise untimely cross-motion when it addresses issues nearly identical to a timely motion, because the court already must decide those questions. But the earlier motion did not seek judgment on those three theories.
Calling the filing a cross-motion did not extend the summary-judgment deadline. The defendants waited more than six months after the note of issue and provided no good cause for doing so. Because their new branches presented distinct legal and factual issues, the narrow same-issue exception did not apply.
The § 241(6) branch stood differently. The timely motion had raised nearly identical questions about that statutory claim, allowing the court to consider the late request. The worker did not show a basis to disturb dismissal because the Industrial Code provisions originally identified were inapplicable.
The panel also left in place the denial of the late amendment seeking new Industrial Code predicates. As a result, the negligence, § 200, and § 240(1) claims returned, while the § 241(6) theory remained dismissed.
Key Takeaways
- A late cross-motion is not timely merely because it accompanies opposition to another party’s motion.
- The nearly-identical-issue exception is claim specific; it reaches only issues the court must already decide on a timely motion.
- Labor Law practitioners should finalize Industrial Code predicates and dispositive-motion theories before the note-of-issue deadlines expire.
Why It Matters
The decision matters in Scaffold Law litigation because procedural timing can determine which high-exposure claims reach trial. Owners, contractors, insurers, and plaintiffs should calendar the applicable summary-judgment deadline as soon as the note of issue is filed and seek extensions before expiration when discovery problems supply good cause.
It also cautions against treating a cross-motion as a vehicle for unrelated relief. Counsel should map each requested branch against the timely motion and be prepared to show near identity, not merely factual overlap. Plaintiffs relying on § 241(6) should identify concrete, applicable Industrial Code provisions early enough to avoid prejudice and amendment disputes.