Preview
FILED: KINGS COUNTY CLERK 05/19/2022 05:12 PM INDEX NO. 504273/2017
NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 05/19/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
--------------------------------------------------------------------X Index No.: 504273/17
ROBERT ZABORSKI,
AFFIRMATION
Plaintiff,
-against-
MB LORIMER LLC and CORNERSTONE
BUILDERS NY LLC,
Defendants.
____________________________________________________________________Ç
CORNERSTONE BUILDERS NY LLC,
Third-Party Plaintiff,
-against-
NEW YORK BUILDER OF STAIRS, INC.
Defendants.
____________________________________________________________________Ç
Michael L. Taub, an attorney admitted to practice law before the Courts of the State of
New York affirms the truth of the following under the penalties of perjury:
1. I am a Partner with THE PLATTA LAW FIRM, PLLC, attorneys for Plaintiff, and
I am familiar with the facts and circumstances of this mater..
2. This Affirmation is submitted in support of the instant Motion seeking an Order
pursuant to CPLR §2221, granting Renewal of Plaintiff's Motion of April 6. 2020 for an Order
pursuant to CPLR §3312 granting Summary Judgment in favor of Plaintiff and against Defendant
CORNERSTONE BUILDERS NY LLC ("CORNERSTONE"), on the issue of liability under Labor
Law §240(1), and, upon Renewal, granting Plaintiff Summary Judgment.
3. By Decision and Order dated and entered on March 1, 2021, the Honorable Debra
Silber denied Plaintiff's Motion for Summary Judgment pursuant to Labor Law §240(1); a copy of
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that Decision and Order is marked Exhibit A. The Court denied the Motion in part due to what it
found to be conflicting testimony regarding how far the clamp fell before Plaintiff, and on
hitting
a witness statement that safety netting or other securing devices would not have been feasible
Defendants'
considering the work being performed. The Court simultaneously denied Cross
Motion for Summary Judgment on Plaintiff s Labor Law §240(1) claim, while granting
Defendant's Cross Motion for Summary Judgment on Plaintiff's claim pursuant to Labor Law
§241(6).
PRELIMINARY STATEMENT
4. This is an action for personal injuries sustained by Plaintiff ROBERT ZABORSKI
on July 18, 2016, when, while working at a construction siteinstalling stairs at a premises located at
163 Middleton Street, Brooklyn, New York, (the "Project") he was struck on the head by an unsecured
stair clamp that fellfrom approximately six to nine feet above the floor.
5. It was alleged in the original Proceeding that Defendant MB LORIEMR LLC owned
the premises, and that ithired CORNERSTONE to serve as general contractor for The Project, which
consisted ofthe construction of a new residential building. In turn, CORNERSTONE hired Plaintiff's
employer, NEW YORK BUILDER OF STAIRS ("NY BUILDER"), to perform work at the site.
6. The accident occurred when Plaintiff was working to construct a curved/spiral
staircase form the second to the third floor of the building. As Plaintiff was engaged in that process,
a metal stair clamp fell approximately six feet, and struck Plaintiff on the head, causing serious
personal injuries.
7. At the time that Plaintiff's Motion for Summary Judgment was noticed, he was the
only witness who stated that the clamp was six feet above his head when it fell. At that time,
Plaintiff was not aware of any direct witnesses to the accident who could corroborate his testimony.
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However, in November 2021, Plaintiff happened to encounter a former coworker, Miroslaw
Sztark, on a street near his home; as set forth here, this was the first time that Plaintiff had seen
Mr. Sztark since the accident. In talking, Plaintiff learned that Mr. Sztark lived near him, and that
he had witnessed the accident; Plaintiff did not have reason before that meeting to believe that Mr.
Sztark had witnessed his accident. Prior to this chance encounter, Plaintiff had no contact
information for Mr. Sztark. As a result of this encounter, this office was able to obtain an Affidavit
from Mr. Sztark regarding Plaintiff's accident.
8. That Affidavit serves as the primary basis of this Motion to Renew. In addition,
Plaintiff submits the Expert Affidavit of Dr. James Pugh, P.E., which attests to the nature of
Defendants'
failure to provide proper safety devices to Plaintiff in order to avoid a falling object;
that the metal clamp fell from a sufficient height so as to invoke the protections of Labor Law
Defendants'
§240(1); and that failures were a proximate cause of the accident.
9. Renewal is a remedy left to the discretion of the Court which had previously
considered a Motion. Under these circumstances, the Court should grant Renewal, and upon
Renewal, grant Plaintiff's Motion for Summary Judgment.
PROCEDURAL HISTORY, LISTING OF EXHIBITS and NYSCEF
REFERENCES
10. This action was commenced on March 2, 2017. Defendant CORNERSTONE
appeared on August 22, 2017.
11. On December 7, 2017, an Order was entered granting Plaintiff a Default Judgment
against Defendant MB LORIMER LLC. A copy of that Order is marked Exhibit B.
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12. A Third-Party Summons and Complaint was filed on June 14, 2018. whereby
Defendant/Third Party Plaintiff impleaded Third Party Defendant NY BUILDER into the
litigation. Third Party Defendant filed itsAnswer on November 1, 2018.
13. Copies of all Pleadings - Plaintiff's Summons and Defendant
Complaint;
CORNERSTONE's Answer; the Supplemental Summons and Complaint filed by Defendant
CORNERSTONE; and the Answer to Third Party Complaint filed by NY BUILDER; are provided
in Exhibit C.
14. Plaintiff moved for Summary Judgment on May 7, 2020. A copy of those Motion
papers, (without Exhibits), are marked Exhibit D; (for the Court's reference, the entire set of
motion papers, including exhibits, are filed as NYSCEF Documents 58-70). A copy of the
opposition papers filed by Defendant/Third Party Plaintiff CORNERSTONE (NYSCEF #74) are
marked Exhibit E. A copy ofthe opposition papers filed by Third Party Defendant NY BUILDER
(without Exhibits) (NYSCEF #79, 80) is marked Exhibit F. A copy of Plaintiff's Reply papers
(NYSCEF #78) are marked Exhibit G.
15. Plaintiff was deposed on March 29, 2019, and April 4, 2019 and May 13. The
transcripts are marked Exhibit H.
16. Defendant CORNERSTONE was deposed on June 14, 2019 by its witness Joel
Banda. The transcript is included within Exhibit D, and is separately marked Exhibit I.
17. Third Party Defendant NY BUILDER was deposed on July 11, 2019 by itswitness
Adam Baran. The transcript is included within Exhibit D, and is separately marked Exhibit J.
18. In addition to the deposition transcripts, Plaintiff's Motion papers included an
Affidavit from Plaintiff, dated April 6, 2020. A copy is marked Exhibit K.
19. As stated supra, the Court denied Plaintiff's Motion (see, Exhibit A).
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FACTUAL STATEMENT
20. The essential facts are that prior to July 18, 2016 CORNERSTONE hired NY
BUILDER to perform work at the Project. Specifically, NY BUILDER was hired to construct
interior wooden stairs in the building under construction (CORNERSTONE Deposition, Exhibit
I,P22).
21. On July 18, 2016, Plaintiff was employed by NY BUILDER, and performed work
at the site. The accident date was Plaintiff's firstday at this Project (Zaborski Deposition. Exhibit
H, PP 28-29, 43; Exhibit K).
22. Plaintiff was working with two co-workers, Wilson and Carlos. Wilson was a
master assembler of stairs. Plaintiff was his helper (Zaborski Deposition, Exhibit H, PP 44,55,
119; Exhibit K). Plaintiff and his co-workers were working to construct a curved/spiral staircase
from the second to the third floor of the Project (Zaborski Deposition, Exhibit H, PP 111-112).
23. To perform this work, Plaintiff and Carlos were standing on a plywood platform
that was built to cover the opening for the stairs (Zaborski Deposition, Exhibit H. P110; Exhibit
K). To build the stairs, the workers would first install stringers. which would hold the stairs in
place. The stringers would be installed on the left side first;then the right side, and then each step
would be installed (Zaborski Deposition, Exhibit H, PP64-65; Exhibit K).
24. Once the stringers were installed, they would go about installing the risers and steps
one by one from the bottom of the stairs,working their way up. Once a riser and step were placed,
the workers would place stair clamps on the sides of the stringers that would hold the elements
together. Once allthe elements were held together, they would be screwed into each other. Once
secured screws, the stair clamps would be removed, and the workers would start installing the
by
next (Zaborski Deposition, Exhibit H, PP64-65, 110-111, 117; Exhibit K).
step
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25. The stair clamps consisted of a metal pipe and two adjustable clamps - one on each
end (Zaborski Deposition, Exhibit H, PP120-121; Exhibit K).
26. At the time of Plaintiff's accident, Wilson was standing on a ladder so that he could
place steps and risers for installation. About twelve steps had already been installed. Plaintiff was
standing below Wilson on the platform in front of the ladder (Zaborski Deposition, Exhibit H, PP
67-68, 118; Exhibit K). Plaintiff would hand materials and tools to Wilson, who would place and
install them (Zaborski Deposition, Exhibit H, PP69, 96; Exhibit K).
27. Immediately before his accident, Wilson asked Plaintiff to hand him a drill, and
Plaintiff started to do so. As Plaintiff bent down to grab a drill which was on the platform, one of
- assembly," -
the stair clamps the "entire meaning a section of pipe and two clamps on each side
fell six feet and struck him on the head (Zaborski Exhibit H. PP120-
approximately Deposition,
121, 224-225; Exhibit K). Plaintiff lost consciousness and was bleeding from his head (Zaborski
Deposition, Exhibit H PP122, 128; Exhibit K).
28. Plaintiff was never provided with a hard hat for his work at the subject premises
(Zaborski Deposition, Exhibit H, P129; Exhibit K), and further testified that he was never
instructed to wear a hard hat at the Project. Plaintiff did not observe any workers wearing hard
hats at this Project (Zaborski Deposition, Exhibit H, PP129, 172; Exhibit K).
29. Adam Baran, Plaintiff's boss, testified that Joel Banda from CORNERSTONE was
responsible for ensuring that the workers performed their work in a safe manner. However, Mr.
Baran did not know how long Mr. Banda was at the site on a daily basis (Baran Deposition, Exhibit
J, PP72-74).
30. On the other hand, Mr. Banda testified that the workers were responsible for
their own personal protective equipment, including hard hats. He would visit the site
providing
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twice a day, at 9:00AM and again at 5:00PM (Banda Deposition, Exhibit I,PP36, 53-54). Plaintiff
and his co-workers were never provided with any safety netting to set under the stairs while
up
working (Zaborski Deposition, Exhibit H, P129). This omissions is a critically important point,
and is addressed Plaintiff's Expert - infra.
by see,
ADDITIONAL FACTS - MOTION TO RENEW
A. Affidavit of Plaintiff Robert Zaborski.
31. Plaintiff has supplied an additional Affidavit in support of the Renewal Motion. As
indicated, in early November 2021, Mr. Zaborski happened to have encountered a former
coworker, Miroslaw Stzark, on a street near his home (Zaborski Affidavit, 77). That encounter
was the firsttime that Mr. Zaborski had seen Mr. Sztark since the accident (77). As the two were
talking, Mr. Zaborski discovered that Mr. Sztark lived near him, and more importantly, that he had
witnessed the accident (78). Before that meeting, Mr. Zaborski had no reason to believe that Mr.
Sztark had witnessed the accident (77 4-6). Prior to this chance encounter, Plaintiff did not have
contact information for Mr. Sztark - which is an effort was not made to speak with Mr.
( 75) why
Sztark at the time of the first Motion Proceeding. As a result of this encounter, this office was able
to obtain an Affidavit from Mr. Sztark regarding Plaintiff's accident. That Affidavit from Mr.
Sztark is also included with these papers.
B. Affidavit of Miroslaw Sztark.
32. Mr. Sztark states that he was employed by NY BUILDER, and was performing
work at the Project. He was building an interior spiral staircase, and was working with Plaintiff,
as well as with two other co-workers, Robert and Carlos (772, 3).
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33. The witness states that in order to build the staircase, they first installed stringers to
hold the stairs in place. They would then install the steps and risers, from the bottom up. After a
riser and step were installed, a stair clamp would be placed underneath them, and were secured to
steps'
the sides of the stringers. The purpose of the stairclamps was to secure the component parts
by holding them together, and to prevent those parts from collapsing and falling to the ground
before the staircase was permanently secured together with screws. Once a step was secured, a
helper would loosen and remove the stair clamp from the step. Mr. Sztark stated that the clamp
always had to be tight from when it was initially placed under a step until the step was secured
with screws - if the entire staircase could become unstable and parts could collapse 7).
not, (776,
34. The clamps used consisted of a metal pipe and two clamps known as "jaws", which
were attached to both ends of the pipe, and would be manually adjusted and secured to the steps
assembler"
by the "master (778, 9).
35. The witness explained that once a clamp was secured, itwas not touched or moved
until the staircase's component parts were secured with screws. A helper would then loosen the
clamp jaws, remove itfrom the stair,and hand itover to Wilson, who would secure itto the next
higher step (79).
36. Mr. Sztark further stated that on prior occasions he had observed a pipe clamp come
loose, and that while itwas a known risk and workers were told that it could happen, at no time
did he see or hear any of the helpers being instructed or told to hold the clamps while the assembly
work was taking place (711).
37. He specifically stated that none of the workers, including Plaintiff, were wearing
hard hats, and was not aware of either Wilson, Edward Baran, or any other supervisors working at
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the building having instructed the NY BUILDER workers at the site to wear a hard hat while
working at the Project (712).
38. Mr. Sztark witnessed Plaintiff's accident; he was standing three to four feet away.
He stated that it appeared that Plaintiff was handing materials and tools to Wilson. Immediately
before the accident occurred, the witness saw Plaintiff standing underneath the staircase and
bending over. At the time ofthe accident, a stairclamp directly above Plaintiff felloff the staircase
and struck the top of Plaintiff's head. Importantly, the witness was able to state that based upon
Plaintiff's position, itappeared that the clamp fell about 4 ½ feet before hitting him (713).
39. Both Plaintiff and Mr. Sztark have stated under oath that the accident occurred
when Plaintiff was bent over, and that the clamp fell from a height of approximately six feet. As
NY BUILDER has not presented any direct witness testimony in dispute. there is no longer any
question before this Court as to the height from which the stair clamp fell onto Plaintiff's head.
40. Mr. Sztark's Affidavit confirms that Plaintiff has proven prima facie entitlement to
Summary Judgment on his Labor Law §240(1) cause of action. The Affidavit confirms that Mr.
Zaborski was not given proper protection, and that he was struck by a falling object from a
significant elevation. In denying Plaintiff's motion, the Court also found a question of fact as to
whether safety netting would have been an appropriate safety device to prevent the accident.
41. Mr. Sztark states in his Affidavit that the stair clamps were used to prevent the
component parts of the steps from collapsing and falling to the ground (77). As such, it is clear
that the stair clamp itself was a safety device pursuant to Labor Law §240(1), as its purpose was
to secure elevated objects, in this case the components of the staircase under construction, and to
prevent them from falling.
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42. At the time of the accident, Plaintiff's job duties required him to be underneath the
staircase under construction (see, Plaintiff's EBT transcripts, annexed to original motion papers as
Exhibit F, pp. 66-67, 118, and Affidavit of Plaintiff dated April 6, 2020, annexed to original Motion
papers as Exhibit J). As such, safety devices to hold the staircase components in place and to
prevent them from falling were required. The safety device used on this Project for this purpose
was the stair clamp. Assuming, arguendo, that netting was not a feasible safety device, itis clear
that the stair clamp was the only available safety device to protect those working below the stairs.
43. Itis well-settled that when a safety device which is intended to protect against an
elevation related risk is itselfthe falling object that causes an injury, itis a violation of Labor Law
if the device itself causes an itis an inadequate device -
§240(1); safety injury, undeniably safety
[see, Harrison v. State of New York, 88 A.D.3d 951, 931 N.Y.S.2d 662 (2d Dept. 2011)].
44. In its opposition to the Motion, NY BUILDERS OF STAIRS relied on the
testimony of its witness, Adam Baran, to support the claim that the clamp was just two feet above
Plaintiff's head when itfell (NYSCEF Document #76). However, Mr. Baran testified that he did
not witness the accident; therefore, that conclusion was based upon hearsay testimony. In addition,
his estimation of the clamp's height above Mr. ZABORSKI's head did not take into consideration
the fact that Plaintiff was bending down when the clamp fell.
B. Affidavit of James Pugh, Ph.D., P.E.
45. Plaintiff produces the Affidavit of Expert James Pugh in support of the Motion.
46. Dr. Pugh states that the failure of the property owner and contractor of the project
to secure the stair situated above Mr. Zaborski represented a risk of a falling object
properly clamp
from an elevated height.
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47. He cites The American National Standards Institute (ANSI) and the International
Safety Equipment Association (ISEA) standards for securing tools at heights sufficient to injure a
worker in case of that tool falling, and states that compliance with those standards requires the use
of a tethering system in order to prevent an object falling from an elevated height. Dr. Pugh states
that had the metal clamp assembly which fell and struck Mr. Zaborski been tethered, the tethering
system would have prevented the clamp from falling. He concludes that there were inadequate
safety devices employed at the Project to prevent this incident from occurring; that inexpensive
tool tethering devices and tool lanyards are readily available from Northern Safety & Industrial at
northernsafety.com as an example of a ready source for tethers and lanyards; and that the presence
of a tethering system in compliance with the above ANSI/ISEA Standard would decrease or
eliminate the chance of an incident such as which occurred and injured Plaintiff.
48. Dr. Pugh opines within a reasonable degree of engineering and construction
certainty, Mr. Zaborski's actions were not a contributing factor to the happening of this accident,
and that the testimony is clear that Mr. Zaborski was situated in a proper area to perform the job
which he was assigned to accomplish. He further opines that Mr. Zaborski was not provided with
appropriate safety equipment to perform thisjob, and that therefore, Defendants violated Labor
Law §240(1) as Mr. Zaborski's injuries were the direct consequence of a failure to provide him
with a proper safety device to protect him from elevation-related hazards. He states that
Defendants should have provided a proper hardhat needed for the performance of this work, per
the requirements of 29 CFR 1910.135 and 29 CFR 1910.100. Given the estimated weight of the
clamp and the deduced height above Plaintiff's head, the hardhat would have deflected the clamp
and absorbed kinetic energy that otherwise was transmitted directly to Mr. Zaborski. per the
requirements for hardhats as specified in ANSI Z89.1.
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LEGALARGUMENT
49. CPLR 2221(e) reads as follows:
(e) A motion for leave to renew:
1. shall be identified specifically as such;
2. shall be based upon new facts not offered on the prior motion that would change the
prior determination or shall demonstrate that there has been a change in the law that
would change the prior determination; and
3. shall contain reasonable justification for the failure to present such facts on the prior
motion.
50. The Second Department stated the following in Castor v. Cuevas, 137 A.D.3d 734,
26 N.Y.S.3d 564 (2d Dept. 2016):
"Although a motion for leave to renew generally must be based on newly-discovered
facts, this requirement is a flexible one, and a court has the discretion to grant renewal
upon facts known to the movant at the time of the original motion, provided that the
movant offers a reasonable justification for the failure to submit the additional facts on
motion"
the original (Matter of Allstate Ins. Co. v Liberty Mut. Ins., 58 AD3d 727, 728;
see Matter of Osorio v Motor Veh. Acc. Indem. Corp., 112 AD3d 831, 832-833;
Deutsche Bank Trust Co. v Ghaness, 100 AD3d 585, 586; Dervisevic v Dervisevic,
89 AD3d 785, 786; Gonzalez v Vigo Constr. Corp., 69 AD3d 565, 566). What is
justification"
considered a "reasonable is within the Supreme Court's discretion
(Heaven v McGowan, 40 AD3d 583, 586; see Calle v Zimmerman, 133 AD3d 809).
"Law office failure can be accepted as a reasonable excuse in the exercise of the court's
discretion"
sound (Nwauwa v Mamos, 53 AD3d 646, 649; see CPLR 2005; Rivera v
Queens Ballpark Co., LLC, 134 AD3d 796).
51. "A motion for leave to renew must be based upon new or additional facts which,
although in existence at the time of the original motion, were not made known to the party seeking
omitted)"
renewal, and therefore, were not known to the Court. (citations Orange and Rockland
UtilitiesInoc. v.Assessor ofthe Town ofHaverstraw, 305 A.D.2d 668, 669, 758 N.Y.S.2d 151 (2d
Dept. 2003).
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52. In Gonzale: v. Vigo Const. Corp., 69 A.D.3d 565, 892 N.Y.S.2d 194 (2d Dept.
2010), the plaintiff offered the Affidavit of a non-party witness on a motion to renew the
defendant's Summary Judgment Motion. The defendants had argued that the plaintiff failed to
show sufficient due diligence in locating the witness at the time of the original motion, and that a
second investigator had little difficulty doing so once he spoke to the plaintiff s family.
Nevertheless, the Second Department affirmed the lower Court's grant of Renewal, holding:
The requirement that a motion for renewal be based on new facts is a flexible one, and itis
within the court's discretion to grant renewal upon facts known to the moving party at the
time of the original motion "if the movant offers a reasonable excuse for the failure to
motion"
present those facts on the prior (citations omitted).
Here, the Supreme Court providently exercised its discretion in granting that branch of the
plaintiffs motion which was for leave to renew his opposition to that branch of prior motion
of Vigo Construction Corp. which was for summary judgment dismissing the complaint
insofar as asserted against it.The plaintiff offered a reasonable excuse for not including an
affidavit from a nonparty witness in opposition to the original motion (citations omitted).
The misidentification of an eyewitness to the subject accident, by not stating his correct
surname in the police report, resulted in a reasonable delay in locating the eyewitness and
obtaining his affidavit (citations omitted).
facts"
53. Here, not only has Plaintiff presented "new on this Motion, he has also
justification"
provided "reasonable for not having done so in the original Proceeding. Mr. Sztark
is a non-party witness whose whereabouts were previously unknown. Even ifhis whereabouts had
been known, Plaintiff had been unaware that Mr. Sztark had actually witnessed the accident.
54. As such, Plaintiff's Motion for Renewal of the prior Motion should be granted.
PLAINTIFF SHOULD BE GRANTED SUMMARY JUDGMENT
ON HIS LABOR LAW §240(1) CLAIM UPON RENEWAL
Builders'
55. In its prior Order, the Court found that "Cornerstone and NY argument
against plaintiff's Labor Law §240 (1) claim lack merit"; that Plaintiff identified a safety device
netting) that would have prevented the falling object from striking his head; that
(specifically
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Plaintiff had shown that the object required securing for the purposes of the undertaking; and,
finally, that "Mr. Zaborski was a protected worker performing a protected task, and therefore, if
established"
the object required securing for the purposes of the undertaking, the violation is
(Exhibit A, P17). The Court further found no merit to the contention that Plaintiff was the sole
proximate cause of his injuries (Exhibit A, P18).
56. The Court's denial of Plaintiff's Motion pursuant to Labor Law §240(1) was based
upon a finding that issues of fact existed with respect to discrepancies as to how far the clamp fell
before hitting Plaintiff. The evidence from Mr. Baran stated that the clamp which struck Plaintiff
could not have fallen more than two feet. Respectfully, the discrepancy in the evidence does not
present an issue of credibility; Mr. Sztark's Affidavit presents an eyewitness account, and the
conclusion to which Mr. Baran testified was not based upon direct evidence, but rather upon a
hearsay account. While issues of credibility are not resolvable on a Motion for Summary
Judgment, that is not the case here, given the lack of first hand evidence presented in opposition.
57. Plaintiff s Labor §240(1) argument is reiterated here.
58. Labor Law §240(1) isdesigned to protect workers from elevation height risks. 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).
59. The Court of Appeals, in Blake v. Neighborhood Housing Servs. of New York City,
Inc., 1 N.Y.3d 280, 771 N.Y.S.2d 484 (2003), noted:
The firstscaffold Law, and ancestor of our Labor Law §240(1), was enacted .
. . in response to the Legislature's concern over unsafe conditions that beset
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employees who worked at heights (see L 1885, ch 314). In promulgating the
statute, the lawma