Exhibit,Appendix: Robert Zaborski v. Mb Lorimer Llc, Cornerstone Builders Ny Llc

On March 03, 2017 a Exhibit,Appendix was filed involving a dispute between Robert Zaborski, and Cornerstone Builders Ny Llc, Mb Lorimer Llc, for Torts - Other (Labor Law) in the District Court of Kings County.

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FILED: KINGS COUNTY CLERK 05/19/2022 05:12 PM INDEX NO. 504273/2017
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EXHIBIT D
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
--------------------------------------------------------------------X Index No.: 504273/17
ROBERT ZABORSKI,
NOTICE OF MOTION
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

Upon the affirmation of BRIAN J. VANNELLA, ESQ, dated May 7, 2020, the affidavit of

ROBERT ZABORSKI, dated April 6, 2020, the exhibits annexed hereto and upon the pleadings

and proceedings heretofore had herein, the undersigned will move this Court in an IAS Motion

Part, at the Courthouse located at 360 Adams Street, Brooklyn New York on the 22nd day of June,

2020 at 9:30 in the forenoon or as soon thereafter as counsel may be heard, for an Order, pursuant

to CPLR § 3212 for summary judgment in favor of the plaintiff and against defendant,

CORNERSTONE BUILDERS NY LLC., on the issue of liability under Labor Law § 240(1), together

with such other and further relief as this Court deems just and proper.

PLEASE TAKE FURTHER NOTICE, that pursuant to CPLR §2214(b), answering affidavits,

if any, are required to be served upon the undersigned at least seven (7) days before the return date of

this motion.

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Dated: New York, New York
May 7, 2020
Yours, etc.,
THE PLATTA LAW FIRM, PLLC

By: __________________________
BRIAN J. VANNELLA
Attorneys for Plaintiff
42 Broadway, Suite 1927
New York, New York 10004
(212) 514-5100

TO:

TRAUB LIEBERMAN STRAUS & SHREWSBERRY, LLP
Attorneys for Defendant
CORNERSTONE BUILDERS NY LLC
Mid-Westchester Executive Park
Seven Skyline Drive
Hawthorne, New York 10531

PILLINGER MILLER & TARALLO, LLP
Attorneys for Third-Party Defendant
NEW YORK BUILDER OF STAIRS
555 Taxter Road, 5th Floor
Elmsford, New York 10523

MB LORIMER LLC
(out via default judgment)

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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.
--------------------------------------------------------------------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 support of the instant motion seeking an Order

pursuant to CPLR § 3212 for summary judgment in favor of the plaintiff and against defendant,

CORNERSTONE BUILDERS NY LLC (hereinafter, “CORNERSTONE”), on the issue of liability

under Labor Law § 240(1).

PROCEDURAL HISTORY

3. On March 2, 2017, plaintiff commenced this action by filing his Summons and

Verified Complaint, a copy of which is annexed hereto as Exhibit A.

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4. On or about August 22, 2017, CORNERSTONE joined this action by filing its

Verified Answer, a copy of which is annexed hereto as Exhibit B.

5. On December 7, 2017, an Order was entered granting plaintiff default judgment

against defendant, MB LORIMER LLC (hereinafter, “MB LORIMER”). Copies of plaintiff’s

motion for default judgment (without exhibits) and the December 7, 2017 Order are collectively

annexed hereto as Exhibit C.

6. Copies of the Third-Party Summons and Complaint and Answer to the Third-Party

Complaint are collectively annexed hereto as Exhibit D.

7. Copies of plaintiff’s Verified Bill of Particulars and Supplemental Verified Bills of

Particulars are collectively annexed hereto as Exhibit E.

8. Plaintiff appeared for depositions on March 29, 2019 and April 4, 2019. Copies of

these transcripts are collectively annexed hereto as Exhibit F.

9. Plaintiff appeared for a further deposition on May 13, 2019. A copy of this

transcript is annexed hereto as Exhibit G.

10. On June 14, 2019, CORNERSTONE, appeared for a deposition by witness, Joel

Banda. A copy of this transcript is annexed hereto as Exhibit H.

11. On July 11, 2019, third-party defendant, NEW YORK BUILDER OF STAIRS,

INC. (hereinafter, “NY BUILDER”) appeared for a deposition by witness, Adam Baran. A copy

of this deposition transcript is annexed hereto as Exhibit I.

12. The affidavit of plaintiff is annexed hereto as Exhibit J.

13. Plaintiff filed his Note of Issue on February 14, 2020 in accordance with the

December 11, 2019 Order of the Court. Copies of the Note of Issue and December 11th Order are

collectively annexed hereto as Exhibit K.

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14. On March 22, 2020, the Chief Administrative Judge of the Courts issued an order

prohibiting the filing of non-essential papers during the COVID-19 outbreak. On April 30, 2020

Chief Administrative Judge Marks issued a Memorandum allowing the filing of motion papers

beginning on May 4, 2020. Copies of this Order and Memorandum are collectively annexed hereto

as Exhibit L. Accordingly, this motion is timely.

STATEMENT OF MATERIAL FACTS

15. On July 18, 2016, defendant, MB LORIMER owned the premises located at 163

Middleton Street, Brooklyn, New York. See, Exhibit H, pp. 15-16.

16. Prior to July 18, 2016, MB LORIMER hired CORNERSTONE to serve as the

general contractor for a construction project at the premises located at 163 Middleton Street,

Brooklyn, New York. This job was for the construction of a new residential building at the

premises. See, Exhibit H, pp. 14-16.

17. Prior to July 18, 2016 CORNERSTONE hired NY BUILDER to perform work at

the subject construction site. Specifically, NY BUILDER OF STAIRS was hired to construct

interior wooden stairs in the building which was under construction. See, Exhibit H, p. 22.

18. On July 18, 2016, plaintiff was employed by NY BUILDER performing work at

the subject site. This was plaintiff’s first day that this jobsite. See, Exhibit F, pp. 28-29, 43; Exhibit

19. Plaintiff was working with two co-workers, Wilson and Carlos. Wilson was a

master assembler of the stairs. Plaintiff was his helper. See, Exhibit F, pp. 44, 55, 119; Exhibit J.

20. They were working to construct a curved/spiral staircase from the second to the

third floor of the building. See, Exhibit F, pp. 111-112; Exhibit J.

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21. To perform this work, plaintiff and Carlos were standing on a plywood platform

that was built to cover the opening for the stairs. See, Exhibit F, p. 110; Exhibit J.

22. To build the stairs, the workers would first install stringers, which would hold the

stairs in place. See, Exhibit F, pp. 64-65; Exhibit J.

23. 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 all the elements were held together, they would be screwed into each other. Once

secured by screws, the stair clamps would be removed, and the workers would start installing the

next step. See, Exhibit F, pp. 64-65, 110-111, 117; Exhibit J.

24. The stair clamps consisted of a metal pipe and two adjustable clamps – one on each

end. See¸ Exhibit F, pp. 120-121; Exhibit J.

25. 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. See, Exhibit F, pp. 67-68, 118;

Exhibit J.

26. Plaintiff would hand materials and tools to Wilson, who would place and install

them. See, Exhibit F, pp. 69, 96; Exhibit J.

27. Immediately before his accident, Wilson asked plaintiff to hand him a drill. As

plaintiff bent down to grab a drill which was on the platform, one of the stair clamps – the “entire

assembly,” meaning a section of pipe and two clamps on each side – fell approximately six feet

and struck plaintiff on the head. See, Exhibit F, pp. 120-121, 224-225; Exhibit J.

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28. Plaintiff lost consciousness and was bleeding from his head. See, Exhibit F, pp.

122, 128; Exhibit J.

29. Plaintiff was never provided with a hard hat for his work at the subject premises.

See, Exhibit F, p. 129; Exhibit J.

30. Plaintiff testified that he was never instructed to wear a hard hat at this jobsite.

Plaintiff did not observe any workers wearing hard hats at this jobsite. See, Exhibit F, pp. 129,

172; Exhibit J.

31. Adam Baran, plaintiff’s boss, testified that Joel Banda from CORNERSTONE was

responsible for ensuring 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. See, Exhibit I, pp. 72-74.

32. On the other hand, Mr. Banda testified that the workers were responsible for

providing their own personal protective equipment, including hard hats. He would visit the site

twice a day, at 9:00 am and again at 5:00 pm. See, Exhibit H, pp. 36, 53-54,

33. Plaintiff and his co-workers were never provided with any safety netting to set up

under the stairs while working. See, Exhibit F, p. 129.

ARGUMENT

34. Labor Law § 240(1) is designed 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).

35. The Court of Appeals, in Blake v. Neighborhood Housing Servs. of New York City,

Inc., 1 N.Y.3d 280 (2003), noted:

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The first scaffold Law, and ancestor of our Labor Law §240(1), was enacted .
.. in response to the Legislature’s concern over unsafe conditions that beset
employees who worked at heights (see L 1885, ch 314). In promulgating the
statute, the lawmakers reacted to widespread accounts of deaths and injuries
in the construction trades .. . Most tellingly, the lawmakers fashioned the
pioneer legislation to “give proper protection” to the worker. These words are
at the heart of the statute and have endured though every amendment.

36. The purpose of Labor Law § 240(1) is to place responsibility on owners and

contractors, “to impose the responsibility for safety practices on those best suited to bear that

responsibility.” Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 601 N.Y.S.2d 49 (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).

37. Falling objects, such as the subject stair clamp, fall within the ambit of the

protection provided by Labor Law § 240(1). The statute was designed to prevent those types of

accidents in which certain enumerated protective devices “prove inadequate to shield the injured

worker from harm directly flowing from the application of the force of gravity to an object or

person.” Ross, supra. “Labor Law §240(1) applies where the falling of an object is elevated to a

significant risk inherent in . . . the relative elevation . . . at which material or loads must be

positioned or secured.” Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259 (2001). Liability

pursuant to Labor Law §240(1) extends where “plaintiff suffered harm that ‘flow[ed] directly from

the application of the force of gravity.’” Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y.3d

1 (2011), quoting, Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 604 (2009).

38. It is now well settled that accidents resulting from falling objects constitute a

violation of Labor Law § 240(1) warranting summary judgment in favor of the injured worker.

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See, Outar v. City of New York, 5 N.Y.3d 731 (2005), aff’g 286 A.D.2d 671 (2d Dept. 2001)

(reversing lower court and granting summary judgment in favor of plaintiff who was injured when

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) (granting summary judgment to plaintiff because during

demolition of a building he was struck by a falling piece of sprinkler pipe); Orner v. Port Auth. of

New York and New Jersey, 293 A.D.2d 517 (2d Dept. 2002) (reversing lower court and granting

summary judgment to plaintiff who was injured when struck by unsecured roofing material that

fell from the roof and struck plaintiff).

39. Further, in Outar, supra, the Court of Appeals clarified that falling object liability

under Labor Law § 240(1) also applies to objects that should have been secured for the

undertaking. See also, Portillo v. Roby Anne Dev., LLC, 32 A.D.3d 421 (2d Dept. 2006) (the fall

of an unsecured vertical beam that was standing on the same level as plaintiff presented a

significant risk of injury to the nearby workers obligating the owner under Labor Law § 240(1) to

use appropriate safety devices to secure the beam); Harrison v. State of New York, 88 A.D.3d 951

(2d Dept. 2011) (Plaintiff entitled to summary judgment pursuant to Labor Law §240(1) where he

was injured by a generator that slipped as it was being lowered from a tugboat to the pier, striking

plaintiff and knocking him down).

40. The Second Department has repeated held that workers struck by falling pipes –

similar to the pipe and clamp assembly involved in the instant accident – that the plaintiff is entitled

to summary judgment under Labor Law §240(1), even when the pipe was involved in the work the

plaintiff was performing at the time of the accident.

41. In Cordova v. 360 Park Avenue South Associates, 33 A.D.3d 750 (2d Dept. 2006),

the plaintiff was injured when a pipe he was cutting fell and struck the ladder on which he was

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standing, causing him to sustain injuries. The Second Department held that the plaintiff therein

had established a prima facie entitlement to summary judgment pursuant to Labor Law § 240(1).

Similarly, in Durmiaki v. International Business Machines Corp., 85 A.D.3d 960 (2d Dept. 2011),

the plaintiff was standing atop an A-frame ladder cutting a pipe when the pipe snapped and fell,

striking the ladder and causing the plaintiff to fall and sustain injuries. The Second Department

held the plaintiff therein had established a prima facie entitlement to summary judgment pursuant

to Labor Law § 240(1).

42. Once the plaintiff establishes that the statute has been violated, and that the

violation was a proximate cause of the accident and injuries sustained by the plaintiff, plaintiff is

entitled to judgment in his favor. Further, contributory or comparative negligence on the part of

the injured worker, if any, is not a defense to a violation predicated upon Labor Law §240(1). See,

Castillo v. 62-25 30th Ave, Realty, LLC, 47 A.D.3d 865 (2d Dept. 2008); Labodin v. State, 242

A.D.2d 563 (2d Dept. 1997); La Lima v. Epstein, 143 A.D.2d 886 (2d Dept. 1988).

43. Here, itis undisputed that plaintiff was performing protected construction work,

when he was caused to be struck by a stair clamp, which fell approximately six feet and was not

properly secured for the undertaking. It is further undisputed that CORNERSTONE, the general

contractor, failed to provide plaintiff with any safety devices to prevent plaintiff from being struck

by a falling stair clamp. Accordingly, plaintiff is entitled to summary judgment pursuant to Labor

Law §240(1).

44. Based upon the foregoing, plaintiff has amply demonstrated his entitlement of

partial summary judgment pursuant to Labor Law § 240(1), against CORNERSTONE.

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

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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
May 7, 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
NOTICE OF MOTION / 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: May 7, 2020
Yours, etc.

THE PLATTA LAW FIRM, PLLC

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Case Info

Judge

Debra Silber Track Judge’s New Case

Case No.

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Document Filed Date

May 19, 2022

Case Filing Date

March 03, 2017

County

Parties

BOECKLE, NICOLE Attorney for the Defendant
BUNDOCK, THOMAS HERBERT Attorney for the Defendants
CORNERSTONE BUILDERS NY LLC Defendant
JAFFERY, ALI R. Attorney for the Defendants
KALLFA, EVIS Attorney for the Plaintiff
MB LORIMER LLC Defendant
PLATTA, SLAWOMIR WIESLAW Attorney for the Plaintiff
REID, AOIFE Attorney for the Defendants
Robert Zaborski Plaintiff
ROLLE, LISA M Attorney for the Defendant
TAUB, MICHAEL L Attorney for the Plaintiff
VANNELLA, BRIAN JAMES Attorney for the Plaintiff
WIERZBICKI, PAWEL PIOTR Attorney for the Plaintiff
HOWARD FREDERICK Attorneys for Plaintiffs
SAIFUL ISLAM Attorneys for Defendants
TALENE WHITE Attorneys for Defendants
BRANDON COTTER Attorney
KELECHI ACHOLONU Attorney
NEIL SAMBURSKY Attorneys for Defendants
DAWN WHEELER Attorney
LAURENCE ROGERS Attorney

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