This page summarizes and comments on a published court decision. It is general information, not legal advice, and reading it does not create an attorney-client relationship. Every case depends on its own facts. Unless this page says otherwise, The Eskesen Law Firm did not represent any party in this case.
Bottom line
After the note of issue is filed, deadlines bind both sides: a late summary judgment motion without good cause must be denied without considering the merits, and a late change to the bill of particulars ordinarily needs special and extraordinary circumstances. Here, the Second Department reinstated a worker’s Labor Law 240(1) and related claims because the owner and general contractor moved too late, but left his Labor Law 241(6) claim dismissed because he sought to add Industrial Code sections about nine months after the note of issue.
The case
- Court
- Appellate Division, Second Department
- Decided
- October 7, 2026
- Case
- Cambero-Minaya v 211 Schermerhorn Dev., LLC
- Citation
- 2026 NY Slip Op 05761
- Official text
- Read the decision on the New York courts’ official reporter site
The facts
The plaintiff alleged that on November 3, 2017, while doing construction work on property owned by 211 Schermerhorn Development, LLC, he was drilling holes into plywood when a machine fell on him from above, causing the drill to jam and injure one of his hands. He sued the owner and the general contractor under Labor Law §§ 200, 240(1), and 241(6) and for negligence; they brought in his employer, a subcontractor, as a third-party defendant. He filed the note of issue on May 5, 2023. In September 2023, the employer moved, among other things, to dismiss the Labor Law 241(6) claim. In December 2023, the owner and general contractor cross-moved to dismiss the whole complaint. In February 2024, he asked to add Industrial Code sections to his bill of particulars. The Supreme Court, Queens County, said no and dismissed the complaint.
The holding
The Second Department modified the order. It held: “Here, the defendants’ cross-motion was made more than six months after the filing of the note of issue, and the defendants offered no explanation for the delay” (2026 NY Slip Op 05761, *2). The employer’s timely motion did not address the negligence, Labor Law 200, or 240(1) claims, so those branches had to be denied as untimely (id. at *3). The Labor Law 241(6) dismissal stood: the employer’s timely motion covered it, the plaintiff did not challenge the ruling that his listed Industrial Code sections did not apply, and the amendment was properly denied because “the plaintiff sought leave to amend the bill of particulars approximately nine months after he filed the note of issue and certificate of readiness for trial, without demonstrating extraordinary circumstances warranting the proposed amendments” (id. at *2).
What changed
Nothing new: this applies settled law, including the Court of Appeals’ decision in Brill v City of New York (2 NY3d 648).
What it means
- Under CPLR 3212(a), as the court quoted it, a court may set its own summary judgment deadline; otherwise the limit is 120 days after the note of issue, except with leave on good cause shown.
- A late motion without good cause “must be denied without consideration of the merits,” unless a timely motion was made on nearly identical grounds.
- The Labor Law 240(1) claim was not decided on its merits; it goes forward.
- A Labor Law 241(6) claim depends on specific Industrial Code sections. Once the case is certified for trial, adding sections ordinarily requires “special and extraordinary circumstances,” unless the amendment has merit, adds no new facts or theories, and causes no prejudice.
Our view
Commentary by Frank N. Eskesen. This section is opinion.
We note that the worker won one round and lost one, both on timing, not on how the accident happened. A late motion does not end a defense. If a case is so clear that the motion should have been granted, the same result may come at trial, for example by a directed verdict before the case goes to the jury, but only after everyone has spent the time and money a trial requires. Of course, the proof at trial may not be the same as the proof available when discovery closed, so the result may or may not be the same. In our experience, a Labor Law 241(6) claim can rise or fall on the Industrial Code sections listed in the bill of particulars. We believe two lessons follow. 1. Before the note of issue, check every Industrial Code section against what discovery showed, while leave to amend is still freely given. 2. Track the court’s own summary judgment deadline, which may be shorter than 120 days. On a summary judgment motion, the calendar can matter as much as the facts.
Topics
Court: Second Department. Year: 2026. Statutes: Labor Law §§ 200, 240(1), 241(6); CPLR 3212(a); 12 NYCRR part 23 (Industrial Code). Result: modified.
Reviewed by Frank N. Eskesen, admitted in New York since 2000. Decided October 7, 2026. Posted October 8, 2026.
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