Preview
FILED: KINGS COUNTY CLERK 10/14/2020 04:03 PM INDEX NO. 504273/2017
NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 10/14/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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ROBERT ZABORSKI,
Plaintiff,
REPLY AFFIRMATION
- against -
Index No. 504273/2017
MB LORIMER LLC AND CORNERSTONE BUILDERS
NY LLC,
Defendant.
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CORNERSTONE BUILDERS NY LLC,
Third-Party Plaintiff,
- against -
NEW YORK BUILDER OF STAIRS, INC.,
Third-Party Defendant.
----------------------------------------------------------------------X
TALENE D. WHITE, an attorney duly admitted to practice law before the Courts of
the State of New York, affirms the truth of the following under the penalties of perjury and
pursuant to CPLR §2106:
1. I am associated with the firm of Pillinger Miller Tarallo, LLP, attorneys for
third-party defendant, New York Builders of Stairs, Inc. (hereinafter “New York Builders”),
herein, and I am fully familiar with the facts and circumstances surrounding the instant action.
2. I make this affirmation in reply to plaintiff’s Opposition, and in further support of
the cross-motion by third-party defendant, New York Builders, for an Order, pursuant to CPLR
§3212, granting summary judgment, dismissing plaintiff's New York Labor Law §§240(1) and
241(6) claims, and for such other and further relief as this Court deems just proper and equitable.
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3. Despite the speculative arguments in plaintiff’s Opposition, Labor Law §240(1) is
not applicable to this case, as there is no evidence that the stair clamp fell because of the absence
or inadequacy of a safety device enumerated in the statute. Plaintiff is unable to refute that no
protective equipment may be placed beneath the staircase to avoid a falling stair clamp because
access is needed to the underside of the staircase for workers to perform their work. In addition,
there is no evidence that the stair clamp was being hoisted or secured at the time itfell. Also,
any height differential between plaintiff and the stair clamp that fell on him was de minimis.
Nevertheless, even if Labor Law §240(1) was applicable to this matter, the sole proximate cause
of the accident was plaintiff's failure to wear a hard hat, turning his back to the staircase, not
paying attention to his surroundings, and failing to heed the warning of his foreman to “watch
out.”
4. Plaintiff’s Labor Law §241(6) claims should be also dismissed as plaintiff’s
Opposition fails to refute the insufficiency and inapplicability of the Industrial Code violations
alleged by plaintiff to support his Labor Law §241(6) claims.
(A) PLAINTIFF'S OPPOSITION HAS FAILED TO RAISE ANY ISSUS OF
FACT AS TO WHETHER LABOR LAW §240(1) APPLIES TO THIS
CASE.
(1) The underlying facts do not present a hazard contemplated in the
statute, or the failure to use, or the inadequacy of, a safety device of
the kind enumerated therein.
5. Plaintiff has failed to raise any issues of fact, beyond surmise of counsel, that the
stair clamp fell because of the absence or inadequacy of a safety device of the kind enumerated
in the statute. It is undisputed that the safety devices enumerated in Labor Law §240(1) are
"scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, [and] ropes."
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Labor Law §240(1). However, there is no evidence here that any such devices were absent,
inadequate or necessary for the performance of plaintiff’s work. Neither plaintiff nor any
defendant testified that any such devices were required to perform plaintiff’s work.
6. To the contrary, the project manager for plaintiff’s employer, Adam Baran, of
New York Builders testified that none of the devices enumerated in the statute were required to
be used while erecting a spiral staircase. Mr. Baran maintained that neither netting, nor any
other protective equipment, may be used beneath the staircase to avoid falling objects because
access is needed to the underside of the staircase for New York Builders' employees to perform
their work. Exhibit I, p. 88-89. If netting was installed on the underside of the staircase, New
York Builders could not access the relevant parts to make the necessary adjustments. Exhibit I,
pp. 88-89 and 102.
7. Even the plaintiff’s own testimony establishes that it was not standard practice to
utilize any of the safety devices enumerated by the statute. Plaintiff testified that at no time
prior to the accident during construction of spiral staircases was netting or any other safety
devices installed beneath the staircase during installation. Exhibit F, p. 129 and 180. Plaintiff
himself testified that, to perform his work, he needed to reach up to the underside of the staircase
to hold the steps in place and install screws. Exhibit F, p. 68.
8. Plaintiff’s Opposition admits that prior staircase installations by New York
Builders did not involve netting or any other safety device beneath the staircase. However,
plaintiff’s counsel speculates and surmises that a safety device, such as “netting,” should have
been used, even though “netting” is not specifically enumerated as a safety device under Labor
Law 240(1). Plaintiff cites to several inapplicable, factually distinguishable cases to support his
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argument that “netting” was a required safety device for the erection of a stair case, which is
without any basis in the facts or law.
9. Indeed, all of the cases cited by plaintiff’s counsel to support this argument
involve falling workers, which is not the case here. See Draiss v. Ira S. Salk Const. Corp., 201
A.D.2d 698 (2d Dept. 1994)[plaintiff fell from a ladder]; Danielewski v. Kenyon Realty Co.
LLC, 2 A.D. 3d 666 (2d Dept. 2003)[plaintiff fell 12 feet from a rooftop]; Rudnik v. Brogor
Realty Corp., 45 A.D.3d 828 (2d Dept. 2007)[ plaintiff fell from a ladder]; Valensisi v. Greens at
Half Hollow LLC, 33 A.D.3d 693 (2d Dept. 2006)[plaintiff fell 20 feet into a covered opening in
the ground]; and Magee v. 438 East 117th Street LLC, 56 A.D.3d 376 (1st Dept. 2008)[plaintiff
fell several stories into a garbage chute].
10. In the present case, it is undisputed that plaintiff was standing on the ground level,
below the very stair case which was being constructed by him, which was within his reach.
There is no evidence that plaintiff was standing on a ladder, or that he fell from any height, to
require safety netting. In any event, and as discussed above, no safety netting could have been
used here as access to the underside of the staircase was required for workers to perform their
work.
11. Plaintiff’s Opposition also fails to raise any issues of fact as to whether the stair
clamp was being hoisted or secured when itfell. Indeed, there is no evidence that the subject
stair clamp was being hoisted or secured at the time of the accident. To the contrary, the
evidence demonstrates that workers were adjusting the staircase at the time of the accident.
Exhibit I, p. 99. In fact, plaintiff himself admitted that the last time a clamp had been moved to
a new position from a preceding step was five minutes before the accident. Exhibit F, p. 202,
208.
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12. Plaintiff fails to distinguish Love v. New York State Thruway Auth., 17 A.D.3d
1000 (4th Dept. 2005), which is directly on point to the case at bar. In Love, plaintiff was
injured when she was struck by either a falling piece of concrete from the bridge itself or a
falling metal clamp that was evidently being used to secure a tarp or a “pick” scaffolding
suspended from the bridge. The Court held that for Labor Law §240(1) to apply, a claimant
must show more than simply that an object fell causing injury to a worker. A claimant must
show that the object fell, while being hoisted or secured, because of the absence or inadequacy of
a safety device of the kind enumerated in the statute, and in Love, neither the piece of concrete,
nor the clamp, was being hoisted or secured when it fell. Love v. New York State Thruway
Auth.,17 A.D.3d at 1001.
13. All of the cases cited by plaintiff apply to falling objects (and mostly pipes),
which were in the process of being hoisted, cut or secured, which was not the case here. For
example, plaintiff cites to Cordova v. 360 Park Avenue South Associates, 33 A.D.3d 750 (2d
Dept. 2006) and Durmiaki v. International Business Machines Corp., 85 A.D.3d 960 (2d Dept.
2011), both of which involved plaintiffs, who were standing on ladders, cutting a pipe in a
ceiling, when the ladder upon which they were standing was struck by the pipe they were cutting,
causing them to fall. However, here, there is no evidence whatsoever that the stair clamp which
struck plaintiff was being hoisted, secured or moved in any way at the time of the accident.
14. As there is no evidence that the stair clamp was being hoisted or secured when it
fell, defendants have established as a matter of law, that the absence or inadequacy of a
necessary hoisting or securing device did not cause the stair clamp to fall, necessitating a
dismissal of plaintiff’s Labor Law §240(1) cause of action.
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15. Finally, plaintiff’s argument that the stair clamp was not properly secured, and
should not have loosened, is factually incorrect and contrary to the deposition testimony of the
parties. The project manager for New York Builders, Mr. Baran, testified that when the steps
are adjusted and put together, a stair clamp loosens when you install the step or riser. Exhibit I, p.
105. It is undisputed that the staircase was being adjusted at the time of the accident and
plaintiff’s foreman, Wilson, told plaintiff to “watch out,” which directive was ignored by
plaintiff. Exhibit I, p. 99, 101 and 108. Mr. Baran testified that itis standard protocol that
workers be aware that when a staircase is being adjusted and step out of the way. Exhibit I, p.
101. As such, there is no evidence that the stair clamp was not properly secured.
(2) Plaintiff's injury did not fall within the scope of §240(1) inasmuch
as any height differential between plaintiff and the stair clamp
that fell on him was de minimis.
16. Plaintiff’s opposition fails to dispute that the subject stair clamp was always
within plaintiff’s reach, and as such, any height differential between plaintiff and the stair clamp
was de minimus, thus falling outside the scope of Labor Law §240(1). Plaintiff testified that his
duties were to hand Wilson the stair clamps, hold the steps in place and install screws. Exhibit
F, p. 68. Although plaintiff approximated that the clamp fell a distance of 1 ½ meters, Mr.
Baran of New York Builders testified that the clamp was within touching distance from plaintiff,
approximately 2 feet above plaintiff’s head, when it fell. Exhibit I, p. 104.
17. Plaintiff fails to distinguish a case cited by defendant, Kuhn v. Giovanniello, 145
A.D.3d 1457 (4th Dept. 2016), where the Appellate Division affirmed the lower Court’s decision
where plaintiff, while standing at ground level, was struck in the shoulder by a falling pipe that
weighed approximately 60 pounds. The Court held that, although there was conflicting
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deposition testimony concerning the exact elevation of the pipe, it was undisputed that the pipe
was, at most, one foot above plaintiff's head, and that the pipe was always within his reach.
The Court thus concluded that plaintiff's injury did not fall within the scope of §240(1) inasmuch
as “any height differential between plaintiff and the [pipe] that fell on him was de minimis.”
Kuhn v. Giovanniello, 145 A.D.3d at 1458.
18. Also, in Narducci v. Manhasset Bay Assocs., 96 N.Y.2d 259 (2001), a worker was
injured while removing window frames as part of renovation project when falling glass fell and
struck him. The Court of Appeals held that workplace accidents which stem from
“gravity-related” occurrences stemming from improperly hoisted or inadequately secured
objects, but which involve only a de minimis elevation differential, may be distinguished from
accidents within scope of Scaffold Law, on basis that such occurrences do not fit within
Legislature's intended application of statute.
19. Plaintiff’s citation to Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599
(2009) is distinguishable from the case at bar in that the pipe which struck plaintiff in Runner,
toppled over 4 feet before striking plaintiff. Here, the evidence establishes that the stair clamp
was always within reach of plaintiff, approximately 2 feet above his head.
20. Based on the foregoing, plaintiff’s injury does not fall within the scope of Labor
Law 240(1) inasmuch as any height differential between plaintiff and the stair clamp that fell on
him was de minimus.
(3) Plaintiff's Own Actions Were the Sole Proximate Cause of the Accident.
21. Even if Labor Law §240(1) applied here, plaintiff would still not be entitled to
recover because, under the circumstances of this case, any failure on the part of defendant to
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provide protection from such an elevation- related risk was not a proximate cause of the accident.
22. Plaintiff’s opposition fails to raise any issues of fact as to whether plaintiff’s own
actions were the sole proximate cause of the accident and his alleged injuries. Plaintiff does not
dispute that plaintiff was not wearing a hard hat at the time of the accident, despite standard
protocols requiring him to do so. Exhibit F, p. 176. Nevertheless, plaintiff testified that he did
“not know” whether it was safe or not to perform his work without a hard hat. Exhibit F, p. 178.
23. Mr. Baran (plaintiff’s employer) testified that all New York Builders' employees
are given personal protective equipment upon their hire with New York Builders, including a
hard hat, gloves and face mask. Exhibit I, p. 70.
24. Mr. Baran maintained that it is a "standard guideline" that workers wear hard hats
while performing work. Exhibit I, p. 72 and 80. Prior to the subject accident, the use of hard
hats was discussed at safety meetings with New York Builders' employees. Mr. Baran recalled
telling plaintiff to wear a hard hat during installations, approximately three to four months prior
to the accident. Exhibit I, p. 75.
25. Mr. Baran observed plaintiff, Wilson and Carlos all wearing hard hats during the
prior construction of another staircase approximately 1-2 weeks before plaintiff’s accident.
Exhibit I, p. 82-83.
26. In addition, Mr. Banda of Cornerstone Builders stated that the use of hard hats
was required at the premises. Exhibit H, p. 53. If Mr. Banda observed any workers not
wearing hard hats in the premises, they would be asked to obtain a hard hat or leave the
premises. Exhibit H, p. 62-63.
27. In addition to plaintiff not wearing a hard hat, the evidence establishes that
plaintiff was not paying attention to his surroundings. Plaintiff’s opposition does not address
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any of the evidence cited regarding plaintiff’s inattention. Plaintiff himself testified that, at the
time of the accident, plaintiff had his back to Wilson and the staircase. Exhibit F, p. 121.
Wilson was adjusting the staircase and told the plaintiff to "watch out." Exhibit I, p. 99.
However, the plaintiff was "not paying attention" and the clamp fell,striking him in the head.
Exhibit I, p. 108. Mr. Baran maintained that plaintiff did not respond to Wilson's direction to
"watch out." Exhibit I, p. 101. Mr. Baran testified that it is standard protocol that workers be
aware that when a staircase is being adjusted that workers step out of the way. Exhibit I, p. 101.
28. Under these circumstances, the plaintiff's failure to wear a hard hat, turning his
back to the work activities, paying attention to his surroundings and failing to heed the warning
of his foreman to “watch out” was so unforeseeable as to break the causal nexus between the
alleged failure of defendant to comply with Labor Law §240(1), and the plaintiff's injuries, and
the plaintiff's acts/omissions were as a matter of law, the sole proximate cause of his injuries.
29. In summary, Labor Law §240 is not applicable to this matter as the underlying
facts do not present a hazard contemplated in the statute, or the failure to use, or the inadequacy
of, a safety device of the kind enumerated therein. Also, any height differential between
plaintiff and the stair clamp that fell on him was de minimis. Nevertheless, even if Labor Law
§240 was applicable to this matter, the sole proximate cause of the accident was plaintiff's failure
to wear a hard hat, turning his back to the staircase, not paying attention to his surroundings, and
failing to heed the warning of his foreman to “watch out.” Accordingly, plaintiff's Labor Law
§240 cause of action must be dismissed.
(4) Hearsay is admissible to support a summary judgment motion.
30. Plaintiff’s argument that hearsay is inadmissible on a summary judgment is
without basis in the law. Hearsay statements are admissible in support of a motion for summary
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judgment “… provided an acceptable excuse for the failure to tender evidence in admissible form
is supplied. ” Maniscalco v. Liro Eng'g Const. Mgmt., P.C., 305 A.D.2d 378, 380 (2d Dept.
2003). Here, plaintiff argues that the statements made by plaintiff’s foreman, Wilson, to Mr.
Baran are inadmissible hearsay. However, Wilson is no longer employed by third-party
defendant, New York Builders, and as such, New York Builders was unable to obtain the
Affidavit or cooperation of Wilson in support of the instant cross-motion. As such, the
statements made by Wilson to Mr. Baran are admissible to support the instant cross-motion and
in opposition to plaintiff’s motion.
(B) PLAINTIFF'S OPPOSITION HAS FAILED TO RAISE ANY ISSUES OF FACT
AS TO WHETHER PLAINTIFF’S LABOR LAW §241(6) CAUSE OF ACTION
SHOULD BE DISMISSED, AS THE INDUSTRIAL CODE PROVISIONS
RELIED UPON BY PLAINTIFF DO NOT APPLY TO THIS MATTER.
31. Plaintiff’s Opposition fails to address plaintiff’s failure to identify qualifying
subsections of these statutes, leaving defendant to “guess” at the subsections allegedly violated.
For this reason alone, plaintiff’s §241(6) claim should be dismissed based on plaintiff’s failure to
sufficiently identify a qualifying subsection of the Industrial Code to support his claims. The
failure to identify a qualifying section in the complaint or bill or particulars may serve as a basis
for summary dismissal of a § 241(6) claim. Walker v. Metro-N. Commuter R.R., 11 A.D.3d
339 (1st Dept. 2004); and Reilly v. Newireen Assocs., 303 A.D.2d 214 (1st Dept. 2003).
32. Also, plaintiff’s Opposition simply glosses over the inapplicability of specific
Industrial Code sections alleged by plaintiff to have been violated. Specifically, 12 NYCRR,
Part 23, Section 23-1.18, entitled “Sidewalk Sheds and Barricades” is inapplicable to the subject
action. There is no evidence that plaintiff’s accident occurred at or near any sidewalk or
thoroughfare. To the contrary, it is undisputed that plaintiff’s accident took place in the interior
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of a building on the second floor, beneath a staircase. Exhibit F, p. 65-67 and 111-112. As
such, plaintiff’s 23-1.18 claim must be dismissed.
33. Plaintiff’s claimed violation of 12 NYCRR, Part 23, Section 23-1.30 entitled
“Illumination” should also be dismissed as there is no evidence that plaintiff had any difficulty
viewing the work area or that illumination (or lack thereof) in any way contributed to the subject
accident. Plaintiff unequivocally testified that he did not have any difficulty viewing his work
area at the time of the accident. Exhibit F, p. 171. Plaintiff’s argument that the illumination
was “less than 10 foot candles” is baseless and irrelevant, given that plaintiff admitted that he
had no difficulty seeing his work area.
34. In light of the uncontroverted evidence that defendant never received written
notice of an Industrial Code violation, 12 NYCRR 23–1.32 is also inapplicable. Mancini v.
Pedra Const., 293 A.D.2d 453 (2d Dept. 2002). Mr. Baran testified that he did not receive any
violations or citations from OSHA or the Department of Buildings and was not contacted by any
City agency regarding this occurrence. Exhibit I, p. 129.
35. 12 NYCRR 23–1.33 does not apply to workers on a construction site, and should
also be dismissed. Lawyer v. Hoffman, 275 A.D.2d 541 (3rd Dept. 2000). Plaintiff’s counsel
admits at paragraph five (5) of his opposition to the cross-motion that a construction project was
underway at the loss location and that plaintiff’s employer, New York Builders, was hired to
erect a staircase thereat. Exhibit H, p. 14-16 and 22.
36. Section 23-2.1 provides mandates with respect to "maintenance and
housekeeping" and subsection (a) refers to storage of material or equipment and subsection (b)
refers to disposal of debris. As the subject accident did not involve either the storage of material
or equipment or the disposal of debris, this entire section is inapplicable. Ginter v. Flushing
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Terrace, LLC, 121 A.D.3d 840 (2d Dept. 2014). To the contrary, plaintiff was erecting a
staircase at the time of the accident and was struck by a stair clamp, which does not involve
storage or debris disposal.
37. In any event, the general duty imposed by 12 NYCRR 23-2.1(b) does not set forth
a directive sufficiently specific to support a cause of action under Labor Law § 241(6). Ginter
v. Flushing Terrace, LLC, 121 A.D.3d at 844; and La Veglia v. St. Francis Hosp., 78 A.D.3d
1123 (2d Dept. 2010).
(C) NEW YORK BUILDERS’ CROSS-MOTION IS TIMELY.
38. Notwithstanding plaintiff’s baseless argument to the contrary, New York Builders
cross-motion is timely. The New York State Governor’s recent Executive Order 202.67
continues the modification and suspension of laws relating to the disaster emergency and tolls
any specific time limit for the filing of any motion as prescribed by the CPLR until November 3,
2020. Annexed hereto as EXHIBIT “A” is a copy of the Governor’s Executive Order 202.67.
New York Builders’ cross-motion was filed on October 8, 2020, almost one month prior to the
Executive Order deadline, and therefore, the cross-motion is timely and should not be dismissed
as untimely.
WHEREFORE, it is respectfully requested that the Court grant the instant
cross-motion of third-party defendant, New York Builder of Stairs, Inc., for summary judgment,
dismissing plaintiff's New York Labor Law §§240(1) and 241(6) claims, and such other and
further relief as the Court may deem just, proper, and equitable.
Dated: Westchester, New York
October 13, 2020
/ S /
TALENE D. WHITE
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INDEX NO. 504273/2017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
_____________________________________X
ROBERT ZABORSKI,
Plaintiff,
- against
-
MB LORIMER LLC AND CORNERSTONE BUILDERS NY LLC,
Defendant.
__________________________________----X
CORNERSTONE BUILDERS NY LLC,
Third-PartyPlaintiff,
- against
-
NEW YORK BUILDER OF STAIRS, INC.,
Third-PartyDefendant.
______________________----------------X
REPLY AFFIRMATION
PILLINGER MILLER TARALLO, LLP
Attorneysfor Third-PartyDefendant
New York Buildersof Stairs,
Inc.
5*
555 Taxter Road, Floor
Elmsford, NY 10523
(914)703-6300
N-PLM-00135/TDW
CERTIFICATION PURSUANT TO 22 N.Y.C.R.R. §130-1.1a
TALENE D. WHITE hereby certifies
that,pursuantto 22 N.Y.C.R.R.§130-1.1a,the foregoingReply Affirmation
is notfrivolousnorfrivolouslypresented.
/ S /
Dated: Westchester,New York TALENE D. WHITE
October 13, 2020
PLEASE TAKE NOTICE
thatthe withinis a true
copy of a enteredin the office
of the clerk
of the within
named
Court on .
thata of whichthe withinis a true
copy willbe presented
for settlement
to the Hon.one of the
judges of the within
named Court at , on at 9:30
a.m.
PILLINGER MILLER TARALLO, LLP
Attorneys forThird-PartyDefendant
New York Buildersof Stairs,
Inc.
5*
555 TaxterRoad, Floor
Elmsford, NY 10523
(914) 703-6300
Our FileNo. N-PLM-00135/TDW
TDW/ars
1949694.wpd
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Preview
FILED: KINGS COUNTY CLERK 10/14/2020 04:03 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 10/14/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ----------------------------------------------------------------------X ROBERT ZABORSKI, Plaintiff, REPLY AFFIRMATION - against - Index No. 504273/2017 MB LORIMER LLC AND CORNERSTONE BUILDERS NY LLC, Defendant. ----------------------------------------------------------------------X CORNERSTONE BUILDERS NY LLC, Third-Party Plaintiff, - against - NEW YORK BUILDER OF STAIRS, INC., Third-Party Defendant. ----------------------------------------------------------------------X TALENE D. WHITE, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the truth of the following under the penalties of perjury and pursuant to CPLR §2106: 1. I am associated with the firm of Pillinger Miller Tarallo, LLP, attorneys for third-party defendant, New York Builders of Stairs, Inc. (hereinafter “New York Builders”), herein, and I am fully familiar with the facts and circumstances surrounding the instant action. 2. I make this affirmation in reply to plaintiff’s Opposition, and in further support of the cross-motion by third-party defendant, New York Builders, for an Order, pursuant to CPLR §3212, granting summary judgment, dismissing plaintiff's New York Labor Law §§240(1) and 241(6) claims, and for such other and further relief as this Court deems just proper and equitable. 1 of 13 FILED: KINGS COUNTY CLERK 10/14/2020 04:03 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 10/14/2020 3. Despite the speculative arguments in plaintiff’s Opposition, Labor Law §240(1) is not applicable to this case, as there is no evidence that the stair clamp fell because of the absence or inadequacy of a safety device enumerated in the statute. Plaintiff is unable to refute that no protective equipment may be placed beneath the staircase to avoid a falling stair clamp because access is needed to the underside of the staircase for workers to perform their work. In addition, there is no evidence that the stair clamp was being hoisted or secured at the time itfell. Also, any height differential between plaintiff and the stair clamp that fell on him was de minimis. Nevertheless, even if Labor Law §240(1) was applicable to this matter, the sole proximate cause of the accident was plaintiff's failure to wear a hard hat, turning his back to the staircase, not paying attention to his surroundings, and failing to heed the warning of his foreman to “watch out.” 4. Plaintiff’s Labor Law §241(6) claims should be also dismissed as plaintiff’s Opposition fails to refute the insufficiency and inapplicability of the Industrial Code violations alleged by plaintiff to support his Labor Law §241(6) claims. (A) PLAINTIFF'S OPPOSITION HAS FAILED TO RAISE ANY ISSUS OF FACT AS TO WHETHER LABOR LAW §240(1) APPLIES TO THIS CASE. (1) The underlying facts do not present a hazard contemplated in the statute, or the failure to use, or the inadequacy of, a safety device of the kind enumerated therein. 5. Plaintiff has failed to raise any issues of fact, beyond surmise of counsel, that the stair clamp fell because of the absence or inadequacy of a safety device of the kind enumerated in the statute. It is undisputed that the safety devices enumerated in Labor Law §240(1) are "scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, [and] ropes." - 2 - 2 of 13 FILED: KINGS COUNTY CLERK 10/14/2020 04:03 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 10/14/2020 Labor Law §240(1). However, there is no evidence here that any such devices were absent, inadequate or necessary for the performance of plaintiff’s work. Neither plaintiff nor any defendant testified that any such devices were required to perform plaintiff’s work. 6. To the contrary, the project manager for plaintiff’s employer, Adam Baran, of New York Builders testified that none of the devices enumerated in the statute were required to be used while erecting a spiral staircase. Mr. Baran maintained that neither netting, nor any other protective equipment, may be used beneath the staircase to avoid falling objects because access is needed to the underside of the staircase for New York Builders' employees to perform their work. Exhibit I, p. 88-89. If netting was installed on the underside of the staircase, New York Builders could not access the relevant parts to make the necessary adjustments. Exhibit I, pp. 88-89 and 102. 7. Even the plaintiff’s own testimony establishes that it was not standard practice to utilize any of the safety devices enumerated by the statute. Plaintiff testified that at no time prior to the accident during construction of spiral staircases was netting or any other safety devices installed beneath the staircase during installation. Exhibit F, p. 129 and 180. Plaintiff himself testified that, to perform his work, he needed to reach up to the underside of the staircase to hold the steps in place and install screws. Exhibit F, p. 68. 8. Plaintiff’s Opposition admits that prior staircase installations by New York Builders did not involve netting or any other safety device beneath the staircase. However, plaintiff’s counsel speculates and surmises that a safety device, such as “netting,” should have been used, even though “netting” is not specifically enumerated as a safety device under Labor Law 240(1). Plaintiff cites to several inapplicable, factually distinguishable cases to support his - 3 - 3 of 13 FILED: KINGS COUNTY CLERK 10/14/2020 04:03 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 10/14/2020 argument that “netting” was a required safety device for the erection of a stair case, which is without any basis in the facts or law. 9. Indeed, all of the cases cited by plaintiff’s counsel to support this argument involve falling workers, which is not the case here. See Draiss v. Ira S. Salk Const. Corp., 201 A.D.2d 698 (2d Dept. 1994)[plaintiff fell from a ladder]; Danielewski v. Kenyon Realty Co. LLC, 2 A.D. 3d 666 (2d Dept. 2003)[plaintiff fell 12 feet from a rooftop]; Rudnik v. Brogor Realty Corp., 45 A.D.3d 828 (2d Dept. 2007)[ plaintiff fell from a ladder]; Valensisi v. Greens at Half Hollow LLC, 33 A.D.3d 693 (2d Dept. 2006)[plaintiff fell 20 feet into a covered opening in the ground]; and Magee v. 438 East 117th Street LLC, 56 A.D.3d 376 (1st Dept. 2008)[plaintiff fell several stories into a garbage chute]. 10. In the present case, it is undisputed that plaintiff was standing on the ground level, below the very stair case which was being constructed by him, which was within his reach. There is no evidence that plaintiff was standing on a ladder, or that he fell from any height, to require safety netting. In any event, and as discussed above, no safety netting could have been used here as access to the underside of the staircase was required for workers to perform their work. 11. Plaintiff’s Opposition also fails to raise any issues of fact as to whether the stair clamp was being hoisted or secured when itfell. Indeed, there is no evidence that the subject stair clamp was being hoisted or secured at the time of the accident. To the contrary, the evidence demonstrates that workers were adjusting the staircase at the time of the accident. Exhibit I, p. 99. In fact, plaintiff himself admitted that the last time a clamp had been moved to a new position from a preceding step was five minutes before the accident. Exhibit F, p. 202, 208. - 4 - 4 of 13 FILED: KINGS COUNTY CLERK 10/14/2020 04:03 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 10/14/2020 12. Plaintiff fails to distinguish Love v. New York State Thruway Auth., 17 A.D.3d 1000 (4th Dept. 2005), which is directly on point to the case at bar. In Love, plaintiff was injured when she was struck by either a falling piece of concrete from the bridge itself or a falling metal clamp that was evidently being used to secure a tarp or a “pick” scaffolding suspended from the bridge. The Court held that for Labor Law §240(1) to apply, a claimant must show more than simply that an object fell causing injury to a worker. A claimant must show that the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute, and in Love, neither the piece of concrete, nor the clamp, was being hoisted or secured when it fell. Love v. New York State Thruway Auth.,17 A.D.3d at 1001. 13. All of the cases cited by plaintiff apply to falling objects (and mostly pipes), which were in the process of being hoisted, cut or secured, which was not the case here. For example, plaintiff cites to Cordova v. 360 Park Avenue South Associates, 33 A.D.3d 750 (2d Dept. 2006) and Durmiaki v. International Business Machines Corp., 85 A.D.3d 960 (2d Dept. 2011), both of which involved plaintiffs, who were standing on ladders, cutting a pipe in a ceiling, when the ladder upon which they were standing was struck by the pipe they were cutting, causing them to fall. However, here, there is no evidence whatsoever that the stair clamp which struck plaintiff was being hoisted, secured or moved in any way at the time of the accident. 14. As there is no evidence that the stair clamp was being hoisted or secured when it fell, defendants have established as a matter of law, that the absence or inadequacy of a necessary hoisting or securing device did not cause the stair clamp to fall, necessitating a dismissal of plaintiff’s Labor Law §240(1) cause of action. - 5 - 5 of 13 FILED: KINGS COUNTY CLERK 10/14/2020 04:03 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 10/14/2020 15. Finally, plaintiff’s argument that the stair clamp was not properly secured, and should not have loosened, is factually incorrect and contrary to the deposition testimony of the parties. The project manager for New York Builders, Mr. Baran, testified that when the steps are adjusted and put together, a stair clamp loosens when you install the step or riser. Exhibit I, p. 105. It is undisputed that the staircase was being adjusted at the time of the accident and plaintiff’s foreman, Wilson, told plaintiff to “watch out,” which directive was ignored by plaintiff. Exhibit I, p. 99, 101 and 108. Mr. Baran testified that itis standard protocol that workers be aware that when a staircase is being adjusted and step out of the way. Exhibit I, p. 101. As such, there is no evidence that the stair clamp was not properly secured. (2) Plaintiff's injury did not fall within the scope of §240(1) inasmuch as any height differential between plaintiff and the stair clamp that fell on him was de minimis. 16. Plaintiff’s opposition fails to dispute that the subject stair clamp was always within plaintiff’s reach, and as such, any height differential between plaintiff and the stair clamp was de minimus, thus falling outside the scope of Labor Law §240(1). Plaintiff testified that his duties were to hand Wilson the stair clamps, hold the steps in place and install screws. Exhibit F, p. 68. Although plaintiff approximated that the clamp fell a distance of 1 ½ meters, Mr. Baran of New York Builders testified that the clamp was within touching distance from plaintiff, approximately 2 feet above plaintiff’s head, when it fell. Exhibit I, p. 104. 17. Plaintiff fails to distinguish a case cited by defendant, Kuhn v. Giovanniello, 145 A.D.3d 1457 (4th Dept. 2016), where the Appellate Division affirmed the lower Court’s decision where plaintiff, while standing at ground level, was struck in the shoulder by a falling pipe that weighed approximately 60 pounds. The Court held that, although there was conflicting - 6 - 6 of 13 FILED: KINGS COUNTY CLERK 10/14/2020 04:03 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 10/14/2020 deposition testimony concerning the exact elevation of the pipe, it was undisputed that the pipe was, at most, one foot above plaintiff's head, and that the pipe was always within his reach. The Court thus concluded that plaintiff's injury did not fall within the scope of §240(1) inasmuch as “any height differential between plaintiff and the [pipe] that fell on him was de minimis.” Kuhn v. Giovanniello, 145 A.D.3d at 1458. 18. Also, in Narducci v. Manhasset Bay Assocs., 96 N.Y.2d 259 (2001), a worker was injured while removing window frames as part of renovation project when falling glass fell and struck him. The Court of Appeals held that workplace accidents which stem from “gravity-related” occurrences stemming from improperly hoisted or inadequately secured objects, but which involve only a de minimis elevation differential, may be distinguished from accidents within scope of Scaffold Law, on basis that such occurrences do not fit within Legislature's intended application of statute. 19. Plaintiff’s citation to Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599 (2009) is distinguishable from the case at bar in that the pipe which struck plaintiff in Runner, toppled over 4 feet before striking plaintiff. Here, the evidence establishes that the stair clamp was always within reach of plaintiff, approximately 2 feet above his head. 20. Based on the foregoing, plaintiff’s injury does not fall within the scope of Labor Law 240(1) inasmuch as any height differential between plaintiff and the stair clamp that fell on him was de minimus. (3) Plaintiff's Own Actions Were the Sole Proximate Cause of the Accident. 21. Even if Labor Law §240(1) applied here, plaintiff would still not be entitled to recover because, under the circumstances of this case, any failure on the part of defendant to - 7 - 7 of 13 FILED: KINGS COUNTY CLERK 10/14/2020 04:03 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 10/14/2020 provide protection from such an elevation- related risk was not a proximate cause of the accident. 22. Plaintiff’s opposition fails to raise any issues of fact as to whether plaintiff’s own actions were the sole proximate cause of the accident and his alleged injuries. Plaintiff does not dispute that plaintiff was not wearing a hard hat at the time of the accident, despite standard protocols requiring him to do so. Exhibit F, p. 176. Nevertheless, plaintiff testified that he did “not know” whether it was safe or not to perform his work without a hard hat. Exhibit F, p. 178. 23. Mr. Baran (plaintiff’s employer) testified that all New York Builders' employees are given personal protective equipment upon their hire with New York Builders, including a hard hat, gloves and face mask. Exhibit I, p. 70. 24. Mr. Baran maintained that it is a "standard guideline" that workers wear hard hats while performing work. Exhibit I, p. 72 and 80. Prior to the subject accident, the use of hard hats was discussed at safety meetings with New York Builders' employees. Mr. Baran recalled telling plaintiff to wear a hard hat during installations, approximately three to four months prior to the accident. Exhibit I, p. 75. 25. Mr. Baran observed plaintiff, Wilson and Carlos all wearing hard hats during the prior construction of another staircase approximately 1-2 weeks before plaintiff’s accident. Exhibit I, p. 82-83. 26. In addition, Mr. Banda of Cornerstone Builders stated that the use of hard hats was required at the premises. Exhibit H, p. 53. If Mr. Banda observed any workers not wearing hard hats in the premises, they would be asked to obtain a hard hat or leave the premises. Exhibit H, p. 62-63. 27. In addition to plaintiff not wearing a hard hat, the evidence establishes that plaintiff was not paying attention to his surroundings. Plaintiff’s opposition does not address - 8 - 8 of 13 FILED: KINGS COUNTY CLERK 10/14/2020 04:03 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 10/14/2020 any of the evidence cited regarding plaintiff’s inattention. Plaintiff himself testified that, at the time of the accident, plaintiff had his back to Wilson and the staircase. Exhibit F, p. 121. Wilson was adjusting the staircase and told the plaintiff to "watch out." Exhibit I, p. 99. However, the plaintiff was "not paying attention" and the clamp fell,striking him in the head. Exhibit I, p. 108. Mr. Baran maintained that plaintiff did not respond to Wilson's direction to "watch out." Exhibit I, p. 101. Mr. Baran testified that it is standard protocol that workers be aware that when a staircase is being adjusted that workers step out of the way. Exhibit I, p. 101. 28. Under these circumstances, the plaintiff's failure to wear a hard hat, turning his back to the work activities, paying attention to his surroundings and failing to heed the warning of his foreman to “watch out” was so unforeseeable as to break the causal nexus between the alleged failure of defendant to comply with Labor Law §240(1), and the plaintiff's injuries, and the plaintiff's acts/omissions were as a matter of law, the sole proximate cause of his injuries. 29. In summary, Labor Law §240 is not applicable to this matter as the underlying facts do not present a hazard contemplated in the statute, or the failure to use, or the inadequacy of, a safety device of the kind enumerated therein. Also, any height differential between plaintiff and the stair clamp that fell on him was de minimis. Nevertheless, even if Labor Law §240 was applicable to this matter, the sole proximate cause of the accident was plaintiff's failure to wear a hard hat, turning his back to the staircase, not paying attention to his surroundings, and failing to heed the warning of his foreman to “watch out.” Accordingly, plaintiff's Labor Law §240 cause of action must be dismissed. (4) Hearsay is admissible to support a summary judgment motion. 30. Plaintiff’s argument that hearsay is inadmissible on a summary judgment is without basis in the law. Hearsay statements are admissible in support of a motion for summary - 9 - 9 of 13 FILED: KINGS COUNTY CLERK 10/14/2020 04:03 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 10/14/2020 judgment “… provided an acceptable excuse for the failure to tender evidence in admissible form is supplied. ” Maniscalco v. Liro Eng'g Const. Mgmt., P.C., 305 A.D.2d 378, 380 (2d Dept. 2003). Here, plaintiff argues that the statements made by plaintiff’s foreman, Wilson, to Mr. Baran are inadmissible hearsay. However, Wilson is no longer employed by third-party defendant, New York Builders, and as such, New York Builders was unable to obtain the Affidavit or cooperation of Wilson in support of the instant cross-motion. As such, the statements made by Wilson to Mr. Baran are admissible to support the instant cross-motion and in opposition to plaintiff’s motion. (B) PLAINTIFF'S OPPOSITION HAS FAILED TO RAISE ANY ISSUES OF FACT AS TO WHETHER PLAINTIFF’S LABOR LAW §241(6) CAUSE OF ACTION SHOULD BE DISMISSED, AS THE INDUSTRIAL CODE PROVISIONS RELIED UPON BY PLAINTIFF DO NOT APPLY TO THIS MATTER. 31. Plaintiff’s Opposition fails to address plaintiff’s failure to identify qualifying subsections of these statutes, leaving defendant to “guess” at the subsections allegedly violated. For this reason alone, plaintiff’s §241(6) claim should be dismissed based on plaintiff’s failure to sufficiently identify a qualifying subsection of the Industrial Code to support his claims. The failure to identify a qualifying section in the complaint or bill or particulars may serve as a basis for summary dismissal of a § 241(6) claim. Walker v. Metro-N. Commuter R.R., 11 A.D.3d 339 (1st Dept. 2004); and Reilly v. Newireen Assocs., 303 A.D.2d 214 (1st Dept. 2003). 32. Also, plaintiff’s Opposition simply glosses over the inapplicability of specific Industrial Code sections alleged by plaintiff to have been violated. Specifically, 12 NYCRR, Part 23, Section 23-1.18, entitled “Sidewalk Sheds and Barricades” is inapplicable to the subject action. There is no evidence that plaintiff’s accident occurred at or near any sidewalk or thoroughfare. To the contrary, it is undisputed that plaintiff’s accident took place in the interior - 10 - 10 of 13 FILED: KINGS COUNTY CLERK 10/14/2020 04:03 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 10/14/2020 of a building on the second floor, beneath a staircase. Exhibit F, p. 65-67 and 111-112. As such, plaintiff’s 23-1.18 claim must be dismissed. 33. Plaintiff’s claimed violation of 12 NYCRR, Part 23, Section 23-1.30 entitled “Illumination” should also be dismissed as there is no evidence that plaintiff had any difficulty viewing the work area or that illumination (or lack thereof) in any way contributed to the subject accident. Plaintiff unequivocally testified that he did not have any difficulty viewing his work area at the time of the accident. Exhibit F, p. 171. Plaintiff’s argument that the illumination was “less than 10 foot candles” is baseless and irrelevant, given that plaintiff admitted that he had no difficulty seeing his work area. 34. In light of the uncontroverted evidence that defendant never received written notice of an Industrial Code violation, 12 NYCRR 23–1.32 is also inapplicable. Mancini v. Pedra Const., 293 A.D.2d 453 (2d Dept. 2002). Mr. Baran testified that he did not receive any violations or citations from OSHA or the Department of Buildings and was not contacted by any City agency regarding this occurrence. Exhibit I, p. 129. 35. 12 NYCRR 23–1.33 does not apply to workers on a construction site, and should also be dismissed. Lawyer v. Hoffman, 275 A.D.2d 541 (3rd Dept. 2000). Plaintiff’s counsel admits at paragraph five (5) of his opposition to the cross-motion that a construction project was underway at the loss location and that plaintiff’s employer, New York Builders, was hired to erect a staircase thereat. Exhibit H, p. 14-16 and 22. 36. Section 23-2.1 provides mandates with respect to "maintenance and housekeeping" and subsection (a) refers to storage of material or equipment and subsection (b) refers to disposal of debris. As the subject accident did not involve either the storage of material or equipment or the disposal of debris, this entire section is inapplicable. Ginter v. Flushing - 11 - 11 of 13 FILED: KINGS COUNTY CLERK 10/14/2020 04:03 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 10/14/2020 Terrace, LLC, 121 A.D.3d 840 (2d Dept. 2014). To the contrary, plaintiff was erecting a staircase at the time of the accident and was struck by a stair clamp, which does not involve storage or debris disposal. 37. In any event, the general duty imposed by 12 NYCRR 23-2.1(b) does not set forth a directive sufficiently specific to support a cause of action under Labor Law § 241(6). Ginter v. Flushing Terrace, LLC, 121 A.D.3d at 844; and La Veglia v. St. Francis Hosp., 78 A.D.3d 1123 (2d Dept. 2010). (C) NEW YORK BUILDERS’ CROSS-MOTION IS TIMELY. 38. Notwithstanding plaintiff’s baseless argument to the contrary, New York Builders cross-motion is timely. The New York State Governor’s recent Executive Order 202.67 continues the modification and suspension of laws relating to the disaster emergency and tolls any specific time limit for the filing of any motion as prescribed by the CPLR until November 3, 2020. Annexed hereto as EXHIBIT “A” is a copy of the Governor’s Executive Order 202.67. New York Builders’ cross-motion was filed on October 8, 2020, almost one month prior to the Executive Order deadline, and therefore, the cross-motion is timely and should not be dismissed as untimely. WHEREFORE, it is respectfully requested that the Court grant the instant cross-motion of third-party defendant, New York Builder of Stairs, Inc., for summary judgment, dismissing plaintiff's New York Labor Law §§240(1) and 241(6) claims, and such other and further relief as the Court may deem just, proper, and equitable. Dated: Westchester, New York October 13, 2020 / S / TALENE D. WHITE - 12 - 12 of 13 FILED: KINGS COUNTY CLERK 10/14/2020 04:03 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 10/14/2020 INDEX NO. 504273/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS _____________________________________X ROBERT ZABORSKI, Plaintiff, - against - MB LORIMER LLC AND CORNERSTONE BUILDERS NY LLC, Defendant. __________________________________----X CORNERSTONE BUILDERS NY LLC, Third-PartyPlaintiff, - against - NEW YORK BUILDER OF STAIRS, INC., Third-PartyDefendant. ______________________----------------X REPLY AFFIRMATION PILLINGER MILLER TARALLO, LLP Attorneysfor Third-PartyDefendant New York Buildersof Stairs, Inc. 5* 555 Taxter Road, Floor Elmsford, NY 10523 (914)703-6300 N-PLM-00135/TDW CERTIFICATION PURSUANT TO 22 N.Y.C.R.R. §130-1.1a TALENE D. WHITE hereby certifies that,pursuantto 22 N.Y.C.R.R.§130-1.1a,the foregoingReply Affirmation is notfrivolousnorfrivolouslypresented. / S / Dated: Westchester,New York TALENE D. WHITE October 13, 2020 PLEASE TAKE NOTICE thatthe withinis a true copy of a enteredin the office of the clerk of the within named Court on . thata of whichthe withinis a true copy willbe presented for settlement to the Hon.one of the judges of the within named Court at , on at 9:30 a.m. PILLINGER MILLER TARALLO, LLP Attorneys forThird-PartyDefendant New York Buildersof Stairs, Inc. 5* 555 TaxterRoad, Floor Elmsford, NY 10523 (914) 703-6300 Our FileNo. N-PLM-00135/TDW TDW/ars 1949694.wpd 13 of 13