Preview
FILED: KINGS COUNTY CLERK 10/13/2020 06:11 PM INDEX NO. 504273/2017
NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 10/13/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
--------------------------------------------------------------------X Index No.: 504273/17
ROBERT ZABORSKI,
REPLY AFFIRMATION
Plaintiff,
-against-
MB LORIMER LLC and CORNERSTONE
BUILDERS NY LLC,
Defendants.
--------------------------------------------------------------------X
CORNERSTONE BUILDERS NY LLC,
Third-Party Plaintiff,
-against-
NEW YORK BUILDER OF STAIRS, INC.
Defendants.
--------------------------------------------------------------------X
BRIAN J. VANNELLA, ESQ., an attorney duly admitted to practice law before the Courts
of the state of New York hereby affirms the truth of the following under the penalties of perjury:
1. I am associated with THE PLATTA LAW FIRM, PLLC, attorneys for the plaintiff
herein, and as such am fully familiar with the facts and circumstances surrounding this action.
2. This affirmation is submitted in reply to the affirmation in opposition submitted by
CORNERSTONE BUILDERS NY LLC (hereinafter, "CORNERSTONE") and in further support
of plaintiff's motion seeking an Order pursuant to CPLR § 3212 for summary judgment in favor of
the plaintiff and against CORNERSTONE on the issue of liability under Labor Law § 240(1).
3. In his moving papers, plaintiff established a prima facie entitlement to summary
judgment against CORNERSTONE on the issue of liability under Labor Law § 240(1). In opposition,
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CORNERSTONE fails to raise a triable issue of fact, and accordingly plaintiff’s motion should be
granted in its entirety.
I. The Stair Clamp Was Not Secured for the Undertaking
4. Section 240(1) of the New York Labor Law states, in pertinent part:
All contractors and owners and their agents… in the erection, demolition,
repairing, altering, painting, cleaning or pointing of a building or structure
shall furnish or erect, or cause to be erected for the performance of such labor,
scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, iron,
ropes, and other devices which shall be so constructed, placed and operated as
to give proper protection to a person so employed. (Emphasis added).
5. Labor Law § 240(1) was designed to protect workers “from harm directly flowing
from the application of the force of gravity to an object or person.” Ross v. Curtis-Palmer Hydro-
Elec. Co., 81 N.Y.2d 494 (1993). The purpose is to protect workers, “who are scarcely in a position
to protect themselves from accident.” Zimmer v. Chemung County Performing Arts, Inc., 65
N.Y.2d 513 (1985), quoting Koenig v. Patrick Constr. Co., 298 N.Y. 313 (1948); see also, Gordon
v. Eastern Ry. Supply, 82 N.Y.2d 555, 606 N.Y.S.2d 127 (1993).
6. Despite CORNERSTONE’s argument otherwise, plaintiff established that he was
struck by an object – the stair clamp – which fell from a height of approximately six (6) feet and
struck him in the head. It is further undisputed that the purpose of the stair clamp was to hold the
stringers, riser, and step together while the elements are screwed together. The stair clamp was
not supposed to fall. In fact, to serve its purpose – to hold the stair elements together – it needed
to be properly secured. It needed to be secured to the stairs for the subject work to be performed.
That it fell and struck plaintiff, demonstrates that it was not properly secured for the purpose of
the undertaking.
7. The Court of Appeals and Second Department had repeatedly held that a worker
struck by a falling object that is not properly secured is entitled to summary judgment under Labor
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Law § 240(1). See, Outar v. City of New York, 5 N.Y.3d 731 (2005), aff’g 286 A.D.2d 671 (2d
Dept. 2001) (an unsecured dolly fell from the top of the bench wall 5 ½ feet striking plaintiff);
Tyluki v. Tishman Tech., 7 A.D.3d 696 (2d Dept. 2004) (a falling piece of sprinkler pipe struck
plaintiff during demolition); Orner v. Port Auth. of New York and New Jersey, 293 A.D.2d 517
(2d Dept. 2002) (unsecured roofing material fell from the roof and struck plaintiff); Portillo v.
Roby Anne Dev., LLC, 32 A.D.3d 421 (2d Dept. 2006) (plaintiff struck by an unsecured vertical
beam that was standing on the same level as plaintiff); Harrison v. State of New York, 88 A.D.3d
951 (2d Dept. 2011) (plaintiff struck by a generator that slipped as it was being lowered from a
tugboat to the pier).
8. Plaintiff cited each of these cases – in which the plaintiffs were all granted summary
judgment under Labor Law § 240(1) – in his moving papers. CORNERSTONE does not attempt
to distinguish any of those cases in its opposition.
9. The Second Department has continued to hold this position in recent years. See,
Escobar v. Safi, 150 A.D.3d 1081 (2d Dept. 2017) (Worker struck by an unsecured piece of
plywood which fell from a roof was entitled to summary judgment under Labor Law § 240(1));
Sarata v. Metropolitan Transp. Authority, 134 A.D.3d 1089 (2d Dept. 2015) (Worker struck by
unsecured falling debris was entitled to summary judgment under Labor Law § 240(1)); Aguilar
v. Graham Terrace, LLC, 2020 N.Y. Slip Op. 04906 (2d Dept. 2020) (Worker knocked to the
ground when struck by unsecured HVAC duct was entitled to summary judgment under Labor
Law § 240(1)).
II. No Safety Device was Provided to Protect Plaintiff from the Falling Stair Clamp
10. CORNERSTONE’s reliance on Ortiz v. Varsity Holdings, LLC, 18 N.Y..3d 335
(2011) and Wilinski v. 334 E. 92nd Street Housing Development Fund Corp., 18 N.Y.3d 1 (2001)
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is also misplaced. As plaintiff established in his moving papers, it is undisputed that he was not
provided with any safety netting to set up under the stairs while working. See, Exhibit F, annexed
to plaintiff’s moving papers, p. 129; Exhibit I, annexed to plaintiff’s moving papers, pp. 88-89.
Q: Is anything put beneath these clamps, during the installation of stairs, to
protect workers in case the clamp falls?
A: No.
See, Exhibit I, annexed to plaintiff’s moving papers, p. 88:9-12.
Q: Did your employer provide you or any of the workers with any type of
safety netting or orange netting to put under the stairs while working?
A: No, we never used anything like that.
See, Exhibit F, annexed to plaintiff’s moving papers, p. 129:15-20.
11. In fact, CORNERSTONE’s owner, Joel Banda conceded that it did not provide any
subcontractors, including plaintiff and his co-workers, with any safety equipment.
Q: Did Cornerstone provide any of the subcontractors with any safety
equipment with which to perform their work?
A: No.
See, Exhibit H, annexed to plaintiff’s moving papers, pp. 42:25 – 43:3.
12. Nets have been repeatedly been found to be a safety device of the type contemplated
by Labor Law § 240(1) to placed and operated as to give proper protection to a person so employed.
See, Draiss v. Ira S. Salk Const. Corp., 201 A.D.2d 698 (2d Dept. 1994); Danielewski v. Kenyon
Realty Co., LLC, 2 A.D. 3d 666 (2d Dept. 2003); Rudnik v. Brogor Realty Corp., 45 A.D.3d 828
(2d Dept. 2007);Valensisi v. Greens at Half Hollow, LLC, 33 A.D.3d 693 (2d Dept. 2006); Magee
v. 438 East 117th Street LLC, 56 A.D.3d 376 (1st Dept. 2008).
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13. Mr. Baran’s opinion about what safety equipment was needed or was practical is of
no moment here. An owner or general contractor’s opinion as to what safety devices are required
does obviate their non-delegable duty to protect workers under Labor Law § 240(1).
14. As plaintiff testified – and defendant and third-party defendant confirmed – that no
safety device, including specifically netting, was provided to ensure the stair clamp was secured
for the purposes of the undertaking, plaintiff has prima facie established the stair clamp fell
because of “absence or inadequacy of a safety device of the kind enumerated in the statute”.
Narducci v. Manhasset Bay Associates, 96 N.Y.2d 259, 268 (2001); see also, Danielewski v.
Kenyon Realty Co., LLC, 2 A.D. 3d 666 (2d Dept. 2003) (“The plaintiff, in support of his motion
for summary judgment, established a prima facie case by presenting evidence that
no safety devices were provided at the time of the accident”); Taeschner v. M & M Restorations,
Ltd., 295 A.D.2d 598 (2d Dept. 2002). (Emphasis added).
15. Accordingly, plaintiff established he was not provided with a proper Labor Law §
240(1) safety device that would have prevented his accident. Accordingly, plaintiff’s motion
should be granted in its entirety.
III. CORNERSTONE Has Failed to Raise an Issue of Fact
16. CORNERSTONE’s attempt to manufacture a question of fact also falls flat. Both
plaintiff and his employer, Adam Baran, testified that New York Builder of Stairs did not provide
its workers with hard hats. Whether Mr. Baran instructed plaintiff to wear a hard hat is of no
moment. A hard hat is not a safety device as contemplated by Labor Law § 240(1) to prevent an
unsecured object from falling. CORNERSTONE’s violation of Labor Law § 240(1) is that it
allowed the unsecured stair clamp to fall from a height and endanger workers below. A hard hat
would not have prevented the unsecured stair clamp from falling from a height.
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17. Additionally, CORNERSTONE’s argument that plaintiff gave inconsistent
testimony about the height the stair clamp fell from is unconvincing. Plaintiff described the
distance the stair clamp fell as “approximately one and half meters” (roughly five feet) during his
deposition and “about six feet” in his affidavit. See, Exhibit F, annexed to plaintiff’s moving
papers, p. 212:8; Exhibit J, annexed to plaintiff’s moving papers, ¶ 11. (Emphasis added). Saying
the distance the stair clamp feel was approximately five feet or about six feet is not contradictory
testimony. Further, Mr. Baran’s hearsay testimony that plaintiff’s co-worker Wilson told him the
claim fell two feet is inadmissible and should not be considered by this Court.
18. CORNERSTONE’s argument that plaintiff’s accident was unwitnessed and that his
“credibility has been placed in issue” is unsupported by the facts and the law. It is undisputed that
plaintiff was working with two co-workers at the time of his accident. See, Exhibit I, annexed to
plaintiff’s moving papers, pp. 56-57, 70. In fact, plaintiff’s employer was notified of the accident
by plaintiff’s co-worker, Wilson.
Q: And who called you?
A: Wilson.
Q: What did Wilson say to you?
A: There was an accident. A clamp fell on Robert’s head . . .
See, Exhibit I, annexed to plaintiff’s moving papers, p. 84:9-13.
Q: Mr. Baran, when you spoke to Carlos, about the accident, did he tell you
that he actually witnessed it?
A: Yeah. Both Carlos and Wilson witnessed it.
See, Exhibit I, annexed to plaintiff’s moving papers, p. 98:10-14.
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19. Wilson further told Mr. Baran, that while they were working, “one of the clamps
loosened up and it fell.” See, Exhibit I, annexed to plaintiff’s moving papers, p. 99:23-24.
Accordingly, it is clear that plaintiff was not the “sole witness” to his accident as CORNERSTONE
argues. See, Rolle Affirmation, ¶ 28. That CORNERSTONE did not depose Wilson or Carlos is
not a mark against plaintiff’s credibility. In any event, the fact that an accident was unwitnessed
does not preclude granting summary judgment to the plaintiff. See, Rivera v. Dafna Const. Co.,
Ltd., 27 A.D.3d 545, 545 (2d Dept. 2006); Yurkovich v. Kvarner Woodworking, Inc., 189 A.D.2d
183, 184 (2d Dept. 2001).
20. Plaintiff has established a prima facie entitlement to summary judgment pursuant
to Labor Law § 240(1) in establishing that he was struck by a falling object that was not properly
secured for the purposes of the undertaking and that CORNERSTONE failed to provide him with
any safety devices, including, but not limited to netting, which would have protected him from this
gravity-related hazard. CORNERSTONE has failed to raise a triable issue of fact. Accordingly,
plaintiff’s motion for summary judgment on the issue of liability under Labor Law § 240(1) should
be granted in its entirety.
WHEREFORE, it is respectfully requested that the plaintiff’s motion for summary
judgment in favor of the plaintiff and against defendants, CORNERSTONE, on the issue of liability
pursuant to Labor Law § 240(1) be granted in its entirety and that this matter be remanded for trial
on the issue of damages only.
Dated: New York, New York
October 13, 2020
____________________________
BRIAN J. VANNELLA, ESQ.
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
--------------------------------------------------------------------X Index No.: 504273/17
ROBERT ZABORSKI,
Plaintiff,
-against-
MB LORIMER LLC and CORNERSTONE
BUILDERS NY LLC,
Defendants.
--------------------------------------------------------------------X
And Third Party Action.
--------------------------------------------------------------------X
REPLY AFFIRMATION
THE PLATTA LAW FIRM, PLLC
Attorneys for: Plaintiff
42 Broadway, Suite 1927
New York, New York 10004
(212) 514-5100
The undersigned attorney hereby certifies, pursuant to 22 NYCRR 130-1.1-a that he/she has read
the within papers and that same are not frivolous as that term is defined in 22 NYCRR 130-
1.1(c).
____________________________________________
BRIAN J. VANNELLA
Service of a copy of the within _______________________________________ is hereby
admitted.
Dated, _________________
Attorney(s) for_____________________
PLEASE TAKE NOTICE:
NOTICE OF ENTRY
that the within is a (certified) true copy of an Order duly entered in the office of the clerk
of the within named court on __________________20___.
NOTICE OF SETTLEMENT
that an Order of which the within is a true copy will be presented for settlement to the
Honorable Justice __________________________ one of the judges of the within named
Court, on 20___ at________ O’clock ___.M.
Dated: October 13, 2020
Yours, etc.
THE PLATTA LAW FIRM, PLLC
8 of 8
Preview
FILED: KINGS COUNTY CLERK 10/13/2020 06:11 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 10/13/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS --------------------------------------------------------------------X Index No.: 504273/17 ROBERT ZABORSKI, REPLY AFFIRMATION Plaintiff, -against- MB LORIMER LLC and CORNERSTONE BUILDERS NY LLC, Defendants. --------------------------------------------------------------------X CORNERSTONE BUILDERS NY LLC, Third-Party Plaintiff, -against- NEW YORK BUILDER OF STAIRS, INC. Defendants. --------------------------------------------------------------------X BRIAN J. VANNELLA, ESQ., an attorney duly admitted to practice law before the Courts of the state of New York hereby affirms the truth of the following under the penalties of perjury: 1. I am associated with THE PLATTA LAW FIRM, PLLC, attorneys for the plaintiff herein, and as such am fully familiar with the facts and circumstances surrounding this action. 2. This affirmation is submitted in reply to the affirmation in opposition submitted by CORNERSTONE BUILDERS NY LLC (hereinafter, "CORNERSTONE") and in further support of plaintiff's motion seeking an Order pursuant to CPLR § 3212 for summary judgment in favor of the plaintiff and against CORNERSTONE on the issue of liability under Labor Law § 240(1). 3. In his moving papers, plaintiff established a prima facie entitlement to summary judgment against CORNERSTONE on the issue of liability under Labor Law § 240(1). In opposition, 1 of 8 FILED: KINGS COUNTY CLERK 10/13/2020 06:11 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 10/13/2020 CORNERSTONE fails to raise a triable issue of fact, and accordingly plaintiff’s motion should be granted in its entirety. I. The Stair Clamp Was Not Secured for the Undertaking 4. Section 240(1) of the New York Labor Law states, in pertinent part: All contractors and owners and their agents… in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, iron, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed. (Emphasis added). 5. Labor Law § 240(1) was designed to protect workers “from harm directly flowing from the application of the force of gravity to an object or person.” Ross v. Curtis-Palmer Hydro- Elec. Co., 81 N.Y.2d 494 (1993). The purpose is to protect workers, “who are scarcely in a position to protect themselves from accident.” Zimmer v. Chemung County Performing Arts, Inc., 65 N.Y.2d 513 (1985), quoting Koenig v. Patrick Constr. Co., 298 N.Y. 313 (1948); see also, Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 606 N.Y.S.2d 127 (1993). 6. Despite CORNERSTONE’s argument otherwise, plaintiff established that he was struck by an object – the stair clamp – which fell from a height of approximately six (6) feet and struck him in the head. It is further undisputed that the purpose of the stair clamp was to hold the stringers, riser, and step together while the elements are screwed together. The stair clamp was not supposed to fall. In fact, to serve its purpose – to hold the stair elements together – it needed to be properly secured. It needed to be secured to the stairs for the subject work to be performed. That it fell and struck plaintiff, demonstrates that it was not properly secured for the purpose of the undertaking. 7. The Court of Appeals and Second Department had repeatedly held that a worker struck by a falling object that is not properly secured is entitled to summary judgment under Labor 2 of 8 FILED: KINGS COUNTY CLERK 10/13/2020 06:11 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 10/13/2020 Law § 240(1). See, Outar v. City of New York, 5 N.Y.3d 731 (2005), aff’g 286 A.D.2d 671 (2d Dept. 2001) (an unsecured dolly fell from the top of the bench wall 5 ½ feet striking plaintiff); Tyluki v. Tishman Tech., 7 A.D.3d 696 (2d Dept. 2004) (a falling piece of sprinkler pipe struck plaintiff during demolition); Orner v. Port Auth. of New York and New Jersey, 293 A.D.2d 517 (2d Dept. 2002) (unsecured roofing material fell from the roof and struck plaintiff); Portillo v. Roby Anne Dev., LLC, 32 A.D.3d 421 (2d Dept. 2006) (plaintiff struck by an unsecured vertical beam that was standing on the same level as plaintiff); Harrison v. State of New York, 88 A.D.3d 951 (2d Dept. 2011) (plaintiff struck by a generator that slipped as it was being lowered from a tugboat to the pier). 8. Plaintiff cited each of these cases – in which the plaintiffs were all granted summary judgment under Labor Law § 240(1) – in his moving papers. CORNERSTONE does not attempt to distinguish any of those cases in its opposition. 9. The Second Department has continued to hold this position in recent years. See, Escobar v. Safi, 150 A.D.3d 1081 (2d Dept. 2017) (Worker struck by an unsecured piece of plywood which fell from a roof was entitled to summary judgment under Labor Law § 240(1)); Sarata v. Metropolitan Transp. Authority, 134 A.D.3d 1089 (2d Dept. 2015) (Worker struck by unsecured falling debris was entitled to summary judgment under Labor Law § 240(1)); Aguilar v. Graham Terrace, LLC, 2020 N.Y. Slip Op. 04906 (2d Dept. 2020) (Worker knocked to the ground when struck by unsecured HVAC duct was entitled to summary judgment under Labor Law § 240(1)). II. No Safety Device was Provided to Protect Plaintiff from the Falling Stair Clamp 10. CORNERSTONE’s reliance on Ortiz v. Varsity Holdings, LLC, 18 N.Y..3d 335 (2011) and Wilinski v. 334 E. 92nd Street Housing Development Fund Corp., 18 N.Y.3d 1 (2001) 3 of 8 FILED: KINGS COUNTY CLERK 10/13/2020 06:11 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 10/13/2020 is also misplaced. As plaintiff established in his moving papers, it is undisputed that he was not provided with any safety netting to set up under the stairs while working. See, Exhibit F, annexed to plaintiff’s moving papers, p. 129; Exhibit I, annexed to plaintiff’s moving papers, pp. 88-89. Q: Is anything put beneath these clamps, during the installation of stairs, to protect workers in case the clamp falls? A: No. See, Exhibit I, annexed to plaintiff’s moving papers, p. 88:9-12. Q: Did your employer provide you or any of the workers with any type of safety netting or orange netting to put under the stairs while working? A: No, we never used anything like that. See, Exhibit F, annexed to plaintiff’s moving papers, p. 129:15-20. 11. In fact, CORNERSTONE’s owner, Joel Banda conceded that it did not provide any subcontractors, including plaintiff and his co-workers, with any safety equipment. Q: Did Cornerstone provide any of the subcontractors with any safety equipment with which to perform their work? A: No. See, Exhibit H, annexed to plaintiff’s moving papers, pp. 42:25 – 43:3. 12. Nets have been repeatedly been found to be a safety device of the type contemplated by Labor Law § 240(1) to placed and operated as to give proper protection to a person so employed. See, Draiss v. Ira S. Salk Const. Corp., 201 A.D.2d 698 (2d Dept. 1994); Danielewski v. Kenyon Realty Co., LLC, 2 A.D. 3d 666 (2d Dept. 2003); Rudnik v. Brogor Realty Corp., 45 A.D.3d 828 (2d Dept. 2007);Valensisi v. Greens at Half Hollow, LLC, 33 A.D.3d 693 (2d Dept. 2006); Magee v. 438 East 117th Street LLC, 56 A.D.3d 376 (1st Dept. 2008). 4 of 8 FILED: KINGS COUNTY CLERK 10/13/2020 06:11 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 10/13/2020 13. Mr. Baran’s opinion about what safety equipment was needed or was practical is of no moment here. An owner or general contractor’s opinion as to what safety devices are required does obviate their non-delegable duty to protect workers under Labor Law § 240(1). 14. As plaintiff testified – and defendant and third-party defendant confirmed – that no safety device, including specifically netting, was provided to ensure the stair clamp was secured for the purposes of the undertaking, plaintiff has prima facie established the stair clamp fell because of “absence or inadequacy of a safety device of the kind enumerated in the statute”. Narducci v. Manhasset Bay Associates, 96 N.Y.2d 259, 268 (2001); see also, Danielewski v. Kenyon Realty Co., LLC, 2 A.D. 3d 666 (2d Dept. 2003) (“The plaintiff, in support of his motion for summary judgment, established a prima facie case by presenting evidence that no safety devices were provided at the time of the accident”); Taeschner v. M & M Restorations, Ltd., 295 A.D.2d 598 (2d Dept. 2002). (Emphasis added). 15. Accordingly, plaintiff established he was not provided with a proper Labor Law § 240(1) safety device that would have prevented his accident. Accordingly, plaintiff’s motion should be granted in its entirety. III. CORNERSTONE Has Failed to Raise an Issue of Fact 16. CORNERSTONE’s attempt to manufacture a question of fact also falls flat. Both plaintiff and his employer, Adam Baran, testified that New York Builder of Stairs did not provide its workers with hard hats. Whether Mr. Baran instructed plaintiff to wear a hard hat is of no moment. A hard hat is not a safety device as contemplated by Labor Law § 240(1) to prevent an unsecured object from falling. CORNERSTONE’s violation of Labor Law § 240(1) is that it allowed the unsecured stair clamp to fall from a height and endanger workers below. A hard hat would not have prevented the unsecured stair clamp from falling from a height. 5 of 8 FILED: KINGS COUNTY CLERK 10/13/2020 06:11 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 10/13/2020 17. Additionally, CORNERSTONE’s argument that plaintiff gave inconsistent testimony about the height the stair clamp fell from is unconvincing. Plaintiff described the distance the stair clamp fell as “approximately one and half meters” (roughly five feet) during his deposition and “about six feet” in his affidavit. See, Exhibit F, annexed to plaintiff’s moving papers, p. 212:8; Exhibit J, annexed to plaintiff’s moving papers, ¶ 11. (Emphasis added). Saying the distance the stair clamp feel was approximately five feet or about six feet is not contradictory testimony. Further, Mr. Baran’s hearsay testimony that plaintiff’s co-worker Wilson told him the claim fell two feet is inadmissible and should not be considered by this Court. 18. CORNERSTONE’s argument that plaintiff’s accident was unwitnessed and that his “credibility has been placed in issue” is unsupported by the facts and the law. It is undisputed that plaintiff was working with two co-workers at the time of his accident. See, Exhibit I, annexed to plaintiff’s moving papers, pp. 56-57, 70. In fact, plaintiff’s employer was notified of the accident by plaintiff’s co-worker, Wilson. Q: And who called you? A: Wilson. Q: What did Wilson say to you? A: There was an accident. A clamp fell on Robert’s head . . . See, Exhibit I, annexed to plaintiff’s moving papers, p. 84:9-13. Q: Mr. Baran, when you spoke to Carlos, about the accident, did he tell you that he actually witnessed it? A: Yeah. Both Carlos and Wilson witnessed it. See, Exhibit I, annexed to plaintiff’s moving papers, p. 98:10-14. 6 of 8 FILED: KINGS COUNTY CLERK 10/13/2020 06:11 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 10/13/2020 19. Wilson further told Mr. Baran, that while they were working, “one of the clamps loosened up and it fell.” See, Exhibit I, annexed to plaintiff’s moving papers, p. 99:23-24. Accordingly, it is clear that plaintiff was not the “sole witness” to his accident as CORNERSTONE argues. See, Rolle Affirmation, ¶ 28. That CORNERSTONE did not depose Wilson or Carlos is not a mark against plaintiff’s credibility. In any event, the fact that an accident was unwitnessed does not preclude granting summary judgment to the plaintiff. See, Rivera v. Dafna Const. Co., Ltd., 27 A.D.3d 545, 545 (2d Dept. 2006); Yurkovich v. Kvarner Woodworking, Inc., 189 A.D.2d 183, 184 (2d Dept. 2001). 20. Plaintiff has established a prima facie entitlement to summary judgment pursuant to Labor Law § 240(1) in establishing that he was struck by a falling object that was not properly secured for the purposes of the undertaking and that CORNERSTONE failed to provide him with any safety devices, including, but not limited to netting, which would have protected him from this gravity-related hazard. CORNERSTONE has failed to raise a triable issue of fact. Accordingly, plaintiff’s motion for summary judgment on the issue of liability under Labor Law § 240(1) should be granted in its entirety. WHEREFORE, it is respectfully requested that the plaintiff’s motion for summary judgment in favor of the plaintiff and against defendants, CORNERSTONE, on the issue of liability pursuant to Labor Law § 240(1) be granted in its entirety and that this matter be remanded for trial on the issue of damages only. Dated: New York, New York October 13, 2020 ____________________________ BRIAN J. VANNELLA, ESQ. 7 of 8 FILED: KINGS COUNTY CLERK 10/13/2020 06:11 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 10/13/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS --------------------------------------------------------------------X Index No.: 504273/17 ROBERT ZABORSKI, Plaintiff, -against- MB LORIMER LLC and CORNERSTONE BUILDERS NY LLC, Defendants. --------------------------------------------------------------------X And Third Party Action. --------------------------------------------------------------------X REPLY AFFIRMATION THE PLATTA LAW FIRM, PLLC Attorneys for: Plaintiff 42 Broadway, Suite 1927 New York, New York 10004 (212) 514-5100 The undersigned attorney hereby certifies, pursuant to 22 NYCRR 130-1.1-a that he/she has read the within papers and that same are not frivolous as that term is defined in 22 NYCRR 130- 1.1(c). ____________________________________________ BRIAN J. VANNELLA Service of a copy of the within _______________________________________ is hereby admitted. Dated, _________________ Attorney(s) for_____________________ PLEASE TAKE NOTICE: NOTICE OF ENTRY that the within is a (certified) true copy of an Order duly entered in the office of the clerk of the within named court on __________________20___. NOTICE OF SETTLEMENT that an Order of which the within is a true copy will be presented for settlement to the Honorable Justice __________________________ one of the judges of the within named Court, on 20___ at________ O’clock ___.M. Dated: October 13, 2020 Yours, etc. THE PLATTA LAW FIRM, PLLC 8 of 8