In a decision date June 3, 2026, the Honor. Alison J. Napolitano, J.S.C. of Suffolk County Supreme Court denied the plaintiff’s motion for partial summary judgment on his Labor Law §240(1) and § 241(6) claims against our client, DiFazio Industries, LLC, and dismissed plaintiff’s claims under Labor Law §§200 and 240(1) and most of the Industrial Code Rules supporting his claim pursuant to Labor Law §241(6).  The plaintiff a non-union laborer, employed by non-party, Earth Repair LLC, alleges to have fallen on July 29, 2020, while working on a construction project near the intersection of Winchester Boulevard and Braddock Avenue, Queens, New York.  The plaintiff was allegedly standing on an underground water main pipe inside a manhole, while he lifted and moved the pipe’s cover. As he moved the cover, the plaintiff claims he slipped and fell to one knee, while his right leg plunged down into the water main pipe’s opening, and he simultaneously caught himself midfall with his hands pressed against the manhole walls. Through the use of expert testimony and an application of the facts of the case to the relevant law, DiFazio was able to defeat the plaintiff’s motion for summary judgment and to dismiss most of the claims against it.  This was despite the fact that the plaintiff used their own purported expert in an attempt to bolster his claims. The Court dismissed the Labor Law §200 claims because DiFazio demonstrated that it did not have authority to supervise or control the performance of plaintiff s work, and that it neither created nor had notice of the alleged dangerous or defective condition. The Court also dismissed the plaintiff’s Labor Law §240(1) claim stating DiFazio established its prima facie showing of entitlement by demonstrating that even, when viewed in a light most favorable to plaintiff, the weight of the water main’s cover was insufficient to constitute the type of falling object contemplated under the statute and the water main’s exposed opening only presented “’the type of ‘ordinary and usual’ peril a worker is commonly exposed to at a construction site”. Regarding the Labor Law §241(6) claim, the Court dismissed most of the Industrial Code Rules which supported this claim, holding that DiFazio demonstrated that the provisions were either insufficiently specific or inapplicable to the facts of the case.

Michael Piccolo v. Difazio Industries, LLC., Index # 608381/2023  (Sup. Ct. Suffolk Co., June 3, 2026)