Preview
(FILED: KINGS COUNTY CLERK 0772172022 03:26 PM
NYSCEF DOC. NO. 110
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
ROBERT ZABORSKI,
Plaintiff,
- against -
RECEIVED NYSCEF:
AFFIRMATION
IN OPPOSITION
Index No. 504273/2017
MB LORIMER LLC AND CORNERSTONE BUILDERS NY
CORNERSTONE BUILDERS NY LLC,
Third-Party Plaintiff,
- against -
NEW YORK BUILDER O
Third-Party Defendant.
TALENE D. WHITE, an attomey duly a
State of New Y ork, affirms the truth of the following un
to CPLR §2106:
1. I am a Partner with the firm of Pi
party defendant, New Yor
circumstances surrounding
2. I make this Affirmation in Opposit
for an Order: (1) pursuan'
2020, pursuant to CPLR
defendant, Cornerstone Bu:
and upon renewal, granting
F STAIRS, INC.,
the instant action.
1 of 20
mitted
Builders of Stairs, Inc., an
to practice law before the Courts of the
ler the penalties of perjury and pursuant
linger Miller Tarallo, LLP, attorneys for third-
I am fully familiar with the facts and
ion to the motion of plaintiff, Robert Zaborski,
to CPLR §2221 granting renewal of plaintiff's motion of June 22,
§3212, for summary judgment in favor of plaintiff and against
ilders NY LLC, on the issue of liability under Labor Law §240(1),
plaintiff summary judgment; (2) granting reargument of third-party
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defendant, New Y ork Builder of Stairs, Inc.’s, motion of October 8, 2020; and (3) for such other
and further relief as this Court deems just and proper
PRELIMINARY STATEMENT
3. This Court's Decision/Order, dated March 1, 2021, properly denied plaintiff’ s
motion for summary judgment,
whether the stair clamp fell bec:
enumerated in the statute and
clamp that fell on him was de minimis.
4. Plaintiff's instant
his Court’s Decision/Order, s!
justification for plaintiff's fail
his Court’s prior determination
Law §240(1). Plaintiff’ s instant
a plaintiff who has not exercised due diligence in making his first factual presentation.
pursuant to Labor Law §240(1), based on issues of fact as to
ause of the absence or inadequacy of a safety device of the kind
whether any height differential between plaintiff and the stair
motion to renew, filed almost one and a half (1%) years after
ould be denied as (1) plaintiff fails to cite to any reasonable
lure to submit the Affidavit of Miroslaw Sztark and Expert
Affidavit of James Pugh P.E. on plaintiff's prior motion, and (2) the Affidavits do not change
denying plaintiff's summary judgment motion pursuant to Labor
motion to renew is simply seeking a second bite of the apple by
5. Plaintiff's own
leposition testimony establishes that plaintiff had full knowledge
or should have known) that Mr. Sztark was a witness to his alleged accident before his prior
motion. Specifically, plaintiff testified that Mr. Sztark was one of four (4) employees (including
himself) working on the staircase at the time of the accident, that Mr. Sztark was present when
his accident occurred, and that
accident. Plaintiff offers no
Mr. Sztark came to plaintiff's assistance immediately after the
reason why he failed to exercise due diligence in locating
Mr. Sztark, a known witness to his accident, to obtain his Affidavit or testimony, prior to his
original motion.
6. In addition, plaintiff waited approximately six (6) months to file the instant
motion to renew (on May 20, 2022) even though plaintiff located Mr. Sztark in November 2021
and offers no reason for this delay. Also, plaintiff has not formally disclosed Mr. Sztark as a
witness in any discovery document to date. Instead, plaintiff ambushes defendants with
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Mr. Sztark’s Affidavit upon the instant motion to renew, thereby depriving defendants of an
opportunity to depose Mr. Sztark in advance of the motion.
7. Nor has plaintiff cited to any reasonable justification for his failure to submit the
Expert Affidavit of Mr. Pugh on the prior motion. In fact, plaintiff’s motion to renew offers no
justification whatsoever for his failure to submit expert evidence on the prior motion. Plaintiff
does not make a single argument as to why expert evidence was not submitted with his original
motion papers.
8. In addition, the Affidavit of Mr. Sztark and the Expert Affidavit of Mr. Pugh do
not change this Court’s prior determination denying plaintiff's summary judgment motion
pursuant to Labor Law §240(1). If anything, the Affidavits raise additional issues of fact as to
whether the stair clamp fell because of the absence or inadequacy of a safety device of the kind
enumerated in the statute and whether any height differential between plaintiff and the stair
clamp that fell on him was de minimis. In any event, New York Builders has submitted the
Expert Affidavit of John Coniglio, P.E. which refutes Mr. Pugh’s Affidavit in its entirety,
opining that Labor Law §240(1) is not applicable to the subject action.
9. Finally, plaintiffs notice of motion seeks “reargument” of New Y ork Builders’
prior cross-motion for summary judgment; however, plaintiff improperly makes this application
approximately one and a half (1%) years after this Court’s Decision/Order, well-past the thirty
(30) day deadline to file motions for reargument, pursuant to CPLR §2221. Also, plaintiff's
instant motion includes no argument whatsoever regarding this Court’s prior dismissal of
plaintiff's Labor Law §241(6) claim. As such, this Court’s dismissal of plaintiff's Labor Law
§241(6) claim should remain undisturbed.
PROCEDURAL HISTORY
10. In the interest of efficiency and judicial economy, your affirmant relies on the
procedural history and exhibits as set forth in plaintiff's motion and e-filed as NY SCEF Doc. No.
89-105. However, plaintiff failed to include as exhibits New York Builders’ Notice of Cross-
Motion, Attorney Affirmation in Support of Cross-Motion and in Opposition to plaintiff's
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motion for summary judgment, which was efiled as NY SCEF Doc. No. 75-76, and New Y ork
Builders’ Reply Affirmation in further support of their summary judgment motion, which was
efiled as NY SCEF Doc. 79-80.
STATEMENT OF FACTS
Deposition Testimony of Plaintiff, Robert Zaborski
11. Plaintiff was performing his work along with three other New York Builders’
employees: Wilson (plaintiff's foreman), Carlos and Merek (aka Miroslaw Sztark). (NY SCEF
Doc. No. 102, p. 54, 69, 183.).
12. The men were constructing a spiral staircase from the second to the third floor of
the subject premises, which consisted of approximately 20-22 steps. (NY SCEF Doc. No. 102, p.
65-67, 111-112.)
13. To build the staircase, plaintiff and his co-workers would assemble the risers and
then the steps, and place moveable clamps on the underside of the staircase, to keep the stair
assembly together. (NYSCEF Doc. No. 102, p. 184-185.) The components would then be
screwed together and the clamps removed for use on the next set of steps. (NY SCEF Doc. No.
102, p. 188, 191, 195.)
14. Plaintiffs duties were to hand Wilson tools, including clamps, hold the steps in
place and install screws. (NY SCEF Doc. No. 102, p. 68.) Plaintiff would unscrew/loosen the
clamps before handing them up to Wilson to install on the staircase. (NY SCEF Doc. No. 102, p.
187.) The clamps were installed underneath the staircase to support the steps. (NY SCEF Doc.
No. 102, p. 93-94, 96.)
15. Prior to the accident, plaintiff and his co-workers had installed and removed
clamps at least five to six times, without incident. (NYSCEF Doc. No. 102, p. 193.) The
staircase was 90% complete prior to the accident. (NY SCEF Doc. No. 102, p. 112.) A clamp
had been moved to a new position from a preceding step five minutes before the accident.
(NY SCEF Doc. No. 102, p. 202, 208.)
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16.
At the time of
e accident, plainti:
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f was in the process of either bending down to
reach a drill to hand to Wilson, or in the process of handing a drill up to Wilson, when the
accident occurred.
screws on the staircase to tight
102p. 119.)
17.
Doc. No. 102
T
(NYSCEF Doc. No. 102,
ten the staircase al
ie accident occurred when one 0:
p. 120-121.)
staircase. (NY SCEF Doc. No. 102, p. 199.)
18. Plaintiff was standing underneat!
Wilson and the ladder. (NYSCEF Doc. No. 102, p. 8
underneath the staircase. (NY SCEF Doc. No. 102, p. 199-200.) PI
at the time of the accident. (NY SCEF Doc. No. 102, p. 121.)
19. After the accident, Merek (Miroslaw Sztark
Doc. No. 102, p. 6-7.) Merek was in the area of plaintiff’ s accident
Doc. No. 102, p. 7.)
20. At no time prior to the accident did plain
shaking. Plaintiff did not make any complaints to anyone regard
clamps prior to the accident. (NY SCEF Doc. No. 102, p. 210.)
21. Plaintiff does not know how the accident occurred.
p. 127.) Plaintiff does not know
(NY SCEF Doc. No. 102, p. 211.)
22. At no time prior
netting used. Plaintifi
work. (NY SCEF Doc. No. 102, p. 129, 180.)
23. Plaintifi
owning a hard
not to perform
. 200-201, 224-226.)
Wilson was installing
the time of the accident. (NY SCEF Doc. No.
the clamps fell and struck plaintiff. (NY SCEF
The clamp fell approximately one and one-half meters from the
e staircase, approximately 2% feet away from
-82,
came
tiff observe any clam,
18, 199.) Wilson was also
aintiff had his back to Wilson
to assist plaintiff. (NY SCEF
when it occurred. (NY SCEF
Ss moving or
ling loose, moving or shaking
(NY SCEF Doc. No. 102,
why the clamp fell and does not know whether it was loose.
the accident during construction of spiral staircases was
did not make any complaints regarding a lack of netting to perform his
was not wearing a hard hat at the time of the accident and denied ever
at. (NY SCEF Doc. No. 102, p. 176.) He did “not know” whether it was safe or
his work without a hard hat. (NYSCEF Doc. No. 102, p. 178.) Plaintiff did not
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make any complaints
p.179,)
RECEIVED NYSCEF: 07/21/2022
to anyone regarding the lack of a hard hat. (NYSCEF Doc. No. 102,
Deposition Testimony of New Y ork Builders of Stairs
24.
(plaintiff's employer).
personal protective e
gloves and face mask.
25.
while performing work.
use of hard hats was discussed at safety meetings with New York Builders’ employees.
Mr. Baran recalled tel
four months prior to the accident. (NY SCEF Doc. No. 104, p. 75.)
Mr. Baran maintained that it is a "standard guideline" that workers wear hard hat
Adam Baran is the Project Manager for third-party defendant, New Y ork Builders
Mr. Baran testified that all New York Builders' employees are given
[uipment upon their hire with New Y ork Builders, including a hard hat,
(NY SCEF Doc. No. 104, p. 70.)
(NY SCEF Doc. No. 104, p. 72, 80.) Prior to the subject accident,
ing plain
iff to wear a hard hat during installations, approximately three to
26. — In addi
safety booklet with guidelines
These guidelines have been hanging on the wall for approximately eight to ten years.
addition, there is an OSHA poster on
shop, which also lis‘
27, Mr.
prior construction
lent. (NY SCE
28.
be used beneath the
acci
Mr.
the s
p. 88.
access the relevant
102.
ion, New Y ork Builders has written safety procedures, which consist of
at is posted in the locker room of the New Y ork Builders’ shop.
n
ie wall in the locker room of the New York Builders’
-89.) If netting
ts various safety regul
Baran observed plaint
of another staircase
F Doc. No. 104, p. 82-
Baran maintained that
ations. (NY SCEF Doc. No. 104, p. 75-77.)
iff, Wilson and Carlos all wearing hard hats during the
approxima'
83.)
tely one to two weeks before plaintiff's
neither netting nor any other protective equipment may
staircase to avoid fal!
was installed on the underside o
arts to make the necessary adjust
ing objects because access is needed to the underside of
taircase for New Y ork Builders' employees to perform their work. (NY SCEF Doc. No. 104,
the staircase, New Y ork Builders could not
ments. (NY SCEF Doc. No. 104, p. 88-89,
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29.
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The subject clamp which struck the plaintiff was located approximately two feet
above the plaintiff's head and was reachable by both plaintiff and Carlos. (NY SCEF Doc. No.
104, p. 104.)
Deposition Testimony of Cornerstone Builders
30.
LLC, as superintendent
31.
of the project.
Joel Banda testified on behalf of the general contractor, Comerstone Builders NY
Mr. Banda stated that the use of hard hats was required at the premises.
(NY SCEF Doc. No. 103, p. 53.) If Mr. Banda observed any workers not wearing hard hats in the
premises, they would
103, p. 62-63.)
Affidavit of John C oniglio, P.E.
32. ‘The Af
devices enumerated in
(Exhibit A.)
equipment, may be used
the underside of the staircase for New York Buil
Mr. Coniglio states that
the statute are required to
Mr. Coniglio states that neither ne’
beneath the staircase to avoi
, while keeping items from
require the free movement of the tool/device such as
are placed stringer to stringer compressing them toge
are then mechanically
‘astened. Getting the correct
e used while erecting
the bar clamp. He states
er to hold in place the st
the items by maneuvering the clamp, rendering a tethering system impracticab!
33.
Mr. Pugh, was not in ef
Mr. Coniglio further states that the ANSI standard cited by
e asked to obtain a hard hat or leave the premises. (NY SCEF Doc. No.
‘idavit of liability expert, John Coniglio, P.E., confirms that none of the
a spiral staircase.
tting, tethering, nor any other protective
falling objects because access is needed to
ders' employees to perform their work.
‘alling is always the objective, many tasks
that the bar clamps
ep and riser which
level and position requires agility to move
e.
plaintiff's expert,
ect at the time of the subject loss. Furthermore, both standards (ANSI or
ISEA) cited by Mr. Pug
th are voluntary standards and there is no current regul
hand tools used overhead. (Exhibit A.)
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ARGUMENT
34. A motion for leave to renew is not a second chance freely given to parties who
have not exercised due diligence in making their first factual presentation. Elder v. Elder, 21
A.D.3d 1055 (2d Dep’t 2005); Matter of Allstate Ins. Co. v. Liberty Mut. Ins., 58 A.D.3d 727
(2d Dep’t 2009).
35. A motion for leave to renew must be based upon new facts, not offered on the
original application, “that would change the prior determination.” CPLR §2221[e][2]; Matter of
Korman v. Bellmore Pub. Schools, 62 A.D.3d 882 (2d Dep’t 2009).
36. | The new or additional facts must have either not been known to the party
seeking renewal (see Matter of Shapiro v. State of New York, 259 A.D.2d 753 (2d Dep’t 1999))
or may, in the Supreme Court's discretion, be based on facts known to the party
seeking renewal at the time of the original motion (see Cole-Hatchard v. Grand Union, 270
A.D.2d 447 (2d Dep’t 2000)). However, in either instance, a “reasonable justification” for the
failure to present such facts on the original motion must be presented CPLR §2221[e][3]; Matter
of Korman, 62 A.D.3d at 884. What constitutes a “reasonable justification’ is within the
Supreme Court's discretion. Heaven v. McGowan, 40 A.D.3d 583 (2d Dep’t 2007).
I PLAINTIFF HAS FAILED TO CITE TO ANY REASONABLE
JUSTIFICATION FOR HIS FAILURE TO PRESENT THE AFFIDAVITS OF
MR. SZTARK AND HIS EXPERT ON THE PRIOR MOTION
37. Plaintiff has failed to cite to any reasonable justification for his failure to present
the Affidavit of eyewitness Miroslaw Sztark on his prior motion for summary judgment,
pursuant to Labor Law §240(1).
38. In a case similar to the case at bar, Abrams v. Berelson, 94 A.D.3d 782 (2d Dep’
2012), the Second Department held that plaintiff did not demonstrate “reasonable justification”
for not presenting new evidence on prior motion for summary judgment where efforts made by
plaintiff to locate a witness had occurred after motion for summary judgment had been decide
and plaintiff did not move until six months after locating witness.
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39. Similarly, in Lardo v. Rivlab Transp. Corp., 46 A.D.3d 759 (2d Dep’t 2007), the
Second Department reversed the Supreme Court’s decision granting defendants' motion for leave
to renew where defendants submitted one defendant's affidavit which presented new evidence
setting forth defendant's version of events surrounding accident, where defendants failed to give
reasonable justification for failing to submit those facts in opposition of a prior motion.
40. Also, in Kirby v. Suburban Elec. Engineers Contractors, Inc., 83 A.D.3d 1380
(4th Dep’t 2011), plaintiffs failed to demonstrate that their purported new evidence was not in
existence or not available at the time of defendant's motion for summary judgment, where in
support of their motion for leave to renew, plaintiffs submitted affidavits in which information
presented could have been discovered and presented earlier with due diligence.
41. The Second Department has consistently held that plaintiff must cite to a
reasonable justification for failure to submit new evidence on the prior motion in support of a
motion for leave to renew. Rowe v. NY CPD, 85 A.D.3d 1001 (2d Dep’t 2011) [Supreme Court
did not improvidently exercise its discretion in denying leave to renew where “new evidence”
consists of documents which the plaintiff knew existed and were in fact in his own possession at
the time the initial motion was made and no reasonable justification exists for the plaintiff's
failure to exercise due diligence by submitting the documents in the first instance]; Deutsche
Bank Tr. Co. v. Ghaness, 100 A.D.3d 585 (2d Dep’t 2012) [mortgagor was not entitled to leave
to renew and reargue his motion based on “new evidence,” which consisted of information the
mortgagor knew or should have known existed at the time of his motion to vacate, absent a
reasonable justification as to why mortgagor failed to submit the information in the first
instance]; Leyberman v. Leyberman, 43 A.D.3d 925 (2d Dep’t 2007) [petitioner was not entitled
to leave to renew and argue where she failed to present new facts that were unavailable to her at
time she filed her written objections and which would have changed prior determination]; Renna
v. Gullo, 19 A.D.3d 472 (2d Dep’t 2005) [Supreme Court providently exercised its discretion in
denying the plaintiffs' motion for leave to renew as they failed to offer a reasonable justification
as to why the allegedly new facts were not submitted earlier]; Deutsche Bank Nat. Tr. Co. v.
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Wilkins, 97 A.D.3d 527 (2d Dep’t 2012) [trial court providently exercised its discretion in
denying mortgagor's motion for leave to renew where purported new facts had been available to
him at the time he opposed mortgagee's motion; mortgagor had failed to demonstrate reasonable
justification for failing to submit purported new facts earlier, and purported new facts would not
have changed prior determination].
42. Likewise, here, plaintiff has failed to offer any reasonable justification for his
‘ailure to present the Affidavit of eyewitness Miroslaw Sztark on his prior motion for summary
judgment, pursuant to Labor Law §240(1). Plaintiff's own deposition testimony establishes that
plaintiff had full knowledge (or should have known) that Mr. Sztark was a witness to his alleged
accident before his prior motion. Specifically, plaintiff testified that Mr. Sztark was one of four
4) employees (including himself) working on the staircase at the time of the accident, thai
Mr. Sztark was present when his accident occurred, and that Mr. Sztark came to plaintiff's
assistance immediately after the accident. (NYSCEF Doc. No. 102, p. 54, 69, 183, 6-7.
Plaintiff offers no reason why he failed to exercise due diligence in locating Mr. Sztark, a known
witness to his accident, to obtain his A ffidavit or testimony, prior to his original motion.
43. In addition, plaintiff waited approximately six (6) months to file the instant
motion to renew (on May 20, 2022) even though plaintiff located Mr. Sztark in November 202
and offers no reason for this delay. Also, plaintiff has not formally disclosed Mr. Sztark as a
witness in any discovery document to date. Instead, plaintiff ambushes defendants witl
Mr. Sztark’s Affidavit upon the instant motion to renew, thereby depriving defendants of an
opportunity to depose Mr. Sztark in advance of the motion.
44. Nor has plaintiff cited to any reasonable justification for his failure to submit the
Expert Affidavit of Mr. Pugh on the prior motion. In fact, plaintiff’s motion to renew offers no
justification whatsoever for his failure to submit expert evidence on the prior motion. Plaintiff
does not make a single argument as to why expert evidence was not submitted with his original
motion papers.
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45. The case law is clear that retention of a new expert is not a legitimate basis for
renewal of a prior motion. Burgos v. Rateb, 64 A.D.3d 530 (2d Dep't 2009).
46. | The Second Department has routinely denied motions to renew based on parties’
failure to include reasonable justification for failure to present expert evidence on the prior
motion. In Byun Sik Chu v. Kerrigan, 154 A.D.3d 731 (2d Dep’t 2017), the Supreme Court
providently exercised its discretion in denying plaintiff's motion for leave to renew based on
affidavit of his physician, an affirmation of a radiologist, and his own affidavit as plaintiff failed
to provide justification for his failure to include expert affidavits and affirmation in opposition to
defendants' motions.
47. In Ramirez v. Khan, 60 A.D.3d 748 (2d Dep’t 2009), the Second Department
affirmed the trial court’s decision denying plaintiff's motion for leave to renew where plaintif:
failed to provide reasonable justification for failure to include physician's affidavit on prior
motion and, in any event, that affirmation would not have changed prior determination awarding
summary judgment to defendant.
48. In Cioffi v. S.M. Foods, Inc., 142 A.D.3d 520 (2d Dep’t 2016), the Secon
Department affirmed the trial’s court’s denial of police officer's motion for leave to renew where
officer did not point to new or additional facts beyond new affidavits from his experts and di
not offer explanation as to why affidavits could not have been submitted with original motion
papers.
49, In Hernandez _v. Nwaishienyi, 148 A.D.3d 684 (2d Dep’t 2017), the Secon
Department affirmed the Supreme Court’s denial of motion for leave to renew where plaintif!
did not point to new or additional facts beyond new affidavit from his expert and did not offer
explanation as to why affidavit could not have been submitted with original motion papers
50. In Daria v. Beacon Cap. Co., 299 A.D.2d 312 (2d Dep’t 2002), motion for leave
to renew motion for summary judgment was properly denied where movant failed to offer
reasonable justification for failure to submit expert affidavit in opposition to original summary
judgment motion.
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51.
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In sum, plaintiff has failed to cite to any reasonable justification for the failure to
present the Affidavit of Mr. Sztark and Expert Affidavit of Mr. Pugh with his original motion
papers, and therefore, plaintiff’s motion to renew should be denied.
II. THE AFFIDAVIT OF MR. SZTARK AND EXPERT AFFIDAVIT DO NOT
CHANGE THIS COURT’S PRIOR DETERMINATION DENYING PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT PURSUANT TO LABOR LAW §240(1)
52. _ Plaintiff’s motion to renew should be denied as the Affidavit of Mr. Sztark and
the Expert Affidavit of Mr. Pugh do not change this Court’s prior determination denying
plaintiff's summary judgment motion pursuant to Labor Law §240(1). If anything, the
Affidavits raise further additional issues of fact as to whether the stair clamp fell because of the
absence or inadequacy of a safety device of the kind enumerated in the statute and whether any
height differential between plaintiff and the stair clamp that fell on him was de minimis.
(a) The Affidavit of Mr. Sztark and Expert Affidavit do not change this Court’s
prior determination finding issues of fact as to whether the stair clamp fell
because of the absence or inadequacy of a safety device of the kind enumerated
in the statute
53. This Court's Decision/Order, dated March 1, 2021, properly denied plaintiff’ s
motion for summary judgment, pursuant to Labor Law §240(1), based on issues of fact as
whether the stair clamp fell because of the absence or inadequacy of a safety device of the kind
enumerated in the statute. Specifically, the Court stated “Similarly, since ‘Labor Law §240(1)
should be construed with a commonsense approach to
18 N.Y .3d 134 (2011)
e realities of the workplace at issue
(Salazar v. Novalex Contr. Corp. , if the trier of fact believes the swom
witness statement that safety netting or other securing devices would not have been feasible
considering the work performed, there would be thus no Labor Law §240(1) violation. This also
p. 19.)
presents an issue of credil
54.
ility.” (NY SCEF Doc. No. 95,
Here, the Affidavit of Mr. Sztark does not change the prior determination of this
Court as to whether the stair clamp fell because of the absence or inadequacy of a safety device
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of the kind enumerated in the statute. In fact, Mr. Sztark’s Affidavit is completely silent on the
issue whether there was an absence or inadequacy of a safety device at the site.
55. However, the testimony of the project manager for plaintiff's employer, Adam
Baran, of New York Builders makes clear 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. (NY SCEF Doc. No. 104, p. 88-89.) If netting was installed
on the underside of the staircase, New Y ork Builders could not access the relevant parts to make
the necessary adjustments. (NY SCEF Doc. No. 104, p. 88-89, 102.)
56. Notably, even Mr. Sztark’s Affidavit admits that workers were required to work
underneath the staircase during assembly to install plywood blocks and to loosen and remove the
pipe clamp. (NY SCEF Doc. No. 93, 410.)
57. Plaintiff’s own testimony confirms 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. (NY SCEF Doc. No. 102, p. 129, 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. (NY SCEF Doc. No. 102, p. 68.)
58. In acase directly on point to the case at bar, the Appellate Division affirmed the
lower Court’s decision in Love v. New Y ork State Thruway Auth., 17 A.D.3d 1000 (4th Dept.
2005), where 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
Page |13
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NYSCEF DOC. NO. 110
piece of concrete, nor the clamp, was being hoiste
State Thruway Auth.,17 A.D.3d at
59. Likewise, here, there is no evidence
RECEI
1001.
INDEX NO. 504273/2017
VED NYSCEF: 07/21/2022
or secured when it fell. Love v. New York
at 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
Plaintiff himself testified that the
preceding step was five minutes before the accident. (NY SCEF Doc. No. 102, p.
such, the absence or inadequacy o:
clamp to fall.
60. Nor does the Affi
determination of this Court as
inadequacy of a safety device o:
defendants’ failure to properly secure the stair clamp represent
an elevated height. Specifically, Mr. Pugh references The American National Standards Institute
(ANSI) and the International Saf
defendants to secure tools at heights using a tethering system. (NYSCEF Doc. No. 94.
However, defendants’ liability expert, John Coniglio, P.E., confirms that
by Mr. Pugh was not in effect at the time of the subject loss. Furthermo:
the kind enumerated in the statute. Mr. Pugh opines that
ed a risk of a falling object from
‘ety Equipment Association (ISEA) as purportedly requiring
the ANSI standard cited
re, both standards (A NS:
e time of the accident. (NYSCEF Doc. No. 104, p. 99.)
last time a clamp had been moved to a new position from a
202, 208.) As
a necessary hoisting or securing device did not cause the stair
avit of plaintiffs expert, Dr. James Pugh, change the prior
whether the stair clamp fell because of the absence or
or ISEA) are voluntary standards and there is no current regulation for tethering hand tools used
overhead. (Exhibit A.)
61. Furthermore, Mr.
Coniglio’s Affidavit confirms that none o
enumerated in the statute are required to be used while erecting a spiral staircase.
cites to the testimony of Mr. Baran and states that neither netting, tethering,
protective equipment, may be used beneath the staircase to avoid falling objects
is needed to the underside of the
he devices
Mr. Coniglio
nor any other
/ecause access
staircase for New Y ork Builders' employees to perform their
work. Mr. Coniglio states that, while keeping items from falling is always the o
tasks require the free movement of the tool/device such as the bar clamp. He stat
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tes that the bar(FILED: KINGS COUNTY CLERK 0772172022 03:26 PM
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clamps are placed stringer to stringer compressing them together to hold in place the step and
riser which are then mechanically fastened. Getting the correct leve'
and position requires agility
to move the items by maneuvering the clamp, rendering a tethering system impracticable.
(Exhibit A).
62.
support a Labor Law §240(1) violation,
in the statute, which are "scaffolding,
eir hire with New Y ork Builders, inc
hats while performing work. (NY SCE
le use of hard hats was discussed al
Mr. Sztark and Mr. Pugh’s re!
races, irons, [and] ropes." Labor Law §240
No. 104, p. 70.) Mr. Baran maintained that
Mr. Baran recalled telling plaintiff to wear a
‘our months prior to the accident. (NY SCEF Doc. No. 104, p. 75.)
erence to the allege
asa
hoists,
(
stays, ladders, slin
luding
i
F Doc. No. 104, p. 72, 80.)
Wilson and Carlos all wearing hard
approximately one to two weeks before plaint
(NY SCEF Doc. No. 103, p. 53.)
If Mr. Banda observed any worl
ats during the prior const
). In any event, Mr.
a hard hat, gloves and
is a "standard guidel
safety meetings with New
ard hat during installat
lack of hard hats does not
ard hat is not safety device of the kind enumerated
s, hangers, blocks, pulleys,
Baran (plaintiffs employer)
estified that all New Y ork Builders' employees are given personal protective equipment upon
face mask. (NY SCEF Doc.
ine" that workers wear hard
Prior to the subject accident,
York Builders’ employees.
ions, approximately three to
Mr. Baran observed plaintiff,
truction of another staircase
tiff’s accident. (NY SCEF Doc. No. 104, p. 82-83.)
Mr. Banda of Cornerstone Builders stated that the use of hard hats
was required at the premises.
ers not wearing hard hats in
the premises, they would be asked to obtain a hard hat or leave the premises. (NY SCEF Doc.
No. 103, p. 62-63.)
63.
Also, as noted in Mr. Coniglio’s Affidavit, a pho’
tograph marked at plaintiff's
deposition depicts a “Danger- Hard Hat Area” sign clearly displayed on the chain link fence
surrounding the project-front. (Exhibit
A.)
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(b) The Affidavit of Mr. Sztark and Expert Affidavit do not change this Court’s
prior determination finding issues of fact as to whether any height differential
between plaintiff and the stair clamp that fell on him was de minimis
64. This Court's Decision/Order, dated March 1, 2021, properly denied plaintiff’ s
motion for summary judgment, pursuant to Labor Law §240(1), based on issues of fact as to
whether any height differential between plaintiff and the stair clamp that fell on him was de
minimis.
65. The deposition testimony of the parties establishes 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
at his duties were to hand Wilson the stair clamps, hold the steps in place and install screws.
(NY SCEF Doc. No. 102, p. 68.) Although plaintiff approximated that the clamp fell a distance
of 1% meters, Mr. Baran of New York Builders testified that the clamp was within touching
istance from plaintiff, approximately two feet above plaintiff's head, when it fell. (NYSCEF
Doc. No. 104, p. 104.)
66. n Kuhn v. Giovanniello, 145 A.D.3d 1457 (4th Dept. 2016), the Court affirmed
e lower Court’s decision where plaintiff, while standing at ground level, was struck in the
Do
oulder by a falling pipe that weighed approximately 60 pounds. The Court held that, although
ere was conflicting deposition testimony conceming 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
@
ways 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.
67. The Affidavit of Mr. Sztark does not change this Court’s prior determination on
this issue. In fact, Mr. Sztark’s Affidavit confirms that workers would reach up from underneath
the staircase and manually loosen and remove stair clamps from the steps. He also attests that
workers would wedge a piece of plywood in between the jaws of the stair clamp and the step to
further tighten and secure the step during the work. (NYSCEF Doc. No. 93, 47-9.) Although
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Mr. Sztark approximated that the clamp fell a distance of 4% feet, his Affidavit confirms that the
clamp was within touching distance from plaintiff, approximately two feet above plaintiff’s head,
when it fell.
finding issues of fact as to the heig
68. The Affidavit of Mr. Pugh does not change this Court’s prior determination
ht differential between plaintiff and the stair clamp that fell on
him. In fact, Mr. Pugh’s Affidavit is completely silent on the issue of the distance between
plaintiff and the stair clamp.
69. Plaintiff's
argument
at the statements made by plaintiff's foreman, Wilson, to
Mr. Baran are inadmissible hearsay is without basis in the law. Hearsay statements are
admissible in support of a motion
the failure to tender evidence in a
Magmt., P.C., 305 A.D.2
378 (2d
or summary judgment “... provided an acceptable excuse for
missible form is supplied.” Maniscalco v. Liro Eng'g Const.
Dep’t 2003). Here, Wilson is no longer employed by third-
party defendant, New Y ork Builders, and as such, New Y ork Builders was unable to obtain the
Affidavit or cooperation of Wilson to oppose plaintiff’s prior motion and/or to support their prior
cross-motion. As such,
motions.
70. Given thai
Court's prior determinati
and the stair clamp thal
the A ffi
ion findin
fell on
judgment as to Labor Law §240(
denied.
le statements made
ig issues of
CONCLUSION
y Wilson to Mr. Baran are admissible upon the
lavit of Mr. Sztark and Expert Affidavit do not change this
‘act as to the height differential between plaintiff
im, the Court’s denial of plaintiff's motion for summary
) was proper and plaintiff's motion for renewal should be
71. Based on the foregoing, plaintiff’s motion to renew, filed almost one and a half
(14) years after this Court’s Decision/Order, should be denied as (1) plaintiff fails to cite to any
reasonable justification for plaintiff's failure to submit the Affidavit of Miroslaw Sztark and
Expert Affidavit of James Pugh P.E. on plaintiff's prior motion and (2) the Affidavits do not
Page |17
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change this Court's prior determination denying plaintiff's summary judgment motion pursuant
to Labor Law §240(1).
WHEREFORE, it is respectfully requested that the Court deny plaintiff's motion in its
entirety and grant such other and further relief as the Court may deem just, proper, and equitable.
Dated: Elmsford, New Y ork
July 21, 2022
Y ours, etc.,
Talene D. White
By: Talene D. White, Esq.
PILLINGER MILLER TARALLO, LLP
Attorneys for Third-Party Defendant
New Y ork Builders of Stairs, Inc.
555 Taxter Road, 5th Floor
Elmsford, NY 10523
(914) 703-6300
PMT File No. N-PLM-00135/TDW
TO:
THE PLATTA LAW FIRM, PLLC
Attorney for Plaintiff
Robert Zaborski
42 Broadway
Suite 1927
New York, NY 10004
212) 514-5100
TRAUB LIEBERMAN STRAUS AND SHREWSBERRY, LLP
Attomey for Defendant/Third-Party Plaintiff
Cornerstone Builders NY LLC
Mid- Westchester Executive Park
Seven Skyline Drive
Hawthome, NY 10532
914) 347-2600
Page |18
18 of 20(FILED: KINGS COUNTY CLERK 0772172022 03:26 PM
NYSCEF DOC. NO. 110
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
ROBERT ZABORSKI,
Plaintiff,
- against -
INDEX NO. 504273/2017
RECEIVED NYSCEF: 07/21/2022
CERTIFICATION
PURSUANT TO
UNIFORM RULES 202.8-b
Index No. 504273/2017
MB LORIMER LLC AND CORNERSTONE BUILDERS NY
LLC,
Defendant.
CORNERSTONE BUILDERS NY LLC,
Third-Party Plaintiff,
- against -
NEW YORK BUILDER OF STAIRS, INC.,
Third-Party Defendant.
I hereby certify the total number of words in this AFFIRMATION IN OPPOSITION ,
inclusive of point headings and footnotes, and exclusive of the caption and signature block is
5,945 words, which is less than the 7,000 word limit imposed by 22 NY CRR 202.8-b.
Dated: Elmsford, New Y ork
July 21, 2022
Yours, etc.,
PILLINGER MILLER TARALLO, LLP
By: Talene D. White
TALENE D. WHITE
Attorneys for Third-Party Defendant
New Y ork Builders of Stairs, Inc.
555 Taxter Road, 5th Floor
Elmsford, NY 10523
(914) 703-6300
PMT File No. N-PLM-00135/TDW
19 of 20(FILED: KINGS COUNTY CLERK 0772172022 03:26 PM INDEX NO. 504273/2017
NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 07/21/2022
INDEX NO. 504273/2017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
ROBERT ZABORSKI,
PLAINTIFF,
- AGAINST -
MB LORIMER LLC AND CORNERSTONE BUILDERS NY LLC,
DEFENDANT.
CORNERSTONE BUILDERS NY LLC,
THIRD-PARTY PLAINTIFF,
- AGAINST -
NEW YORK BUILDER OF STAIRS, INC.,
THIRD-PARTY DEFENDANT.
AFFIRMATION IN OPPOSITION
PILLINGER MILLER TARALLO, LLP
Attomeys for Third-Party Defendant
New Y ork Builders of Stairs, Inc.
555 Taxter Road, 5th 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, pursuant to 22 N.Y.C.R.R. § 130-1.1a, the foregoing AFFIRMATION IN OPPOSITION
is/are neither frivolous nor frivolously presented.
Dated: Elmsford, New Y ork Talene D. White
July 21, 2022 TALENE D. WHITE
PLEASE TAKE NOTICE
that the within is a true copy of a entered in the office of the clerk of the within named Court on
that a of which the within is a true copy will be presented for settlement to the Hon. one of
the judges of the within named Court at , onat 9:30 am.
oo
PILLINGER MILLER TARALLO, LLP
Attomeys for Third-Party Defendant
New Y ork Builders of Stairs, Inc.
555 Taxter Road, 5th Floor
Elmsford, NY 10523
(914) 703-6300
PMT File No. N-PLM-00135/TDW
TDW/ars
2744095,
20 of 20
Preview
(FILED: KINGS COUNTY CLERK 0772172022 03:26 PM NYSCEF DOC. NO. 110 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ROBERT ZABORSKI, Plaintiff, - against - RECEIVED NYSCEF: AFFIRMATION IN OPPOSITION Index No. 504273/2017 MB LORIMER LLC AND CORNERSTONE BUILDERS NY CORNERSTONE BUILDERS NY LLC, Third-Party Plaintiff, - against - NEW YORK BUILDER O Third-Party Defendant. TALENE D. WHITE, an attomey duly a State of New Y ork, affirms the truth of the following un to CPLR §2106: 1. I am a Partner with the firm of Pi party defendant, New Yor circumstances surrounding 2. I make this Affirmation in Opposit for an Order: (1) pursuan' 2020, pursuant to CPLR defendant, Cornerstone Bu: and upon renewal, granting F STAIRS, INC., the instant action. 1 of 20 mitted Builders of Stairs, Inc., an to practice law before the Courts of the ler the penalties of perjury and pursuant linger Miller Tarallo, LLP, attorneys for third- I am fully familiar with the facts and ion to the motion of plaintiff, Robert Zaborski, to CPLR §2221 granting renewal of plaintiff's motion of June 22, §3212, for summary judgment in favor of plaintiff and against ilders NY LLC, on the issue of liability under Labor Law §240(1), plaintiff summary judgment; (2) granting reargument of third-party INDEX NO. 504273/2017 07/21/2022(FILED: KINGS COUNTY CLERK 07721/2022 03:26 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 07/21/2022 defendant, New Y ork Builder of Stairs, Inc.’s, motion of October 8, 2020; and (3) for such other and further relief as this Court deems just and proper PRELIMINARY STATEMENT 3. This Court's Decision/Order, dated March 1, 2021, properly denied plaintiff’ s motion for summary judgment, whether the stair clamp fell bec: enumerated in the statute and clamp that fell on him was de minimis. 4. Plaintiff's instant his Court’s Decision/Order, s! justification for plaintiff's fail his Court’s prior determination Law §240(1). Plaintiff’ s instant a plaintiff who has not exercised due diligence in making his first factual presentation. pursuant to Labor Law §240(1), based on issues of fact as to ause of the absence or inadequacy of a safety device of the kind whether any height differential between plaintiff and the stair motion to renew, filed almost one and a half (1%) years after ould be denied as (1) plaintiff fails to cite to any reasonable lure to submit the Affidavit of Miroslaw Sztark and Expert Affidavit of James Pugh P.E. on plaintiff's prior motion, and (2) the Affidavits do not change denying plaintiff's summary judgment motion pursuant to Labor motion to renew is simply seeking a second bite of the apple by 5. Plaintiff's own leposition testimony establishes that plaintiff had full knowledge or should have known) that Mr. Sztark was a witness to his alleged accident before his prior motion. Specifically, plaintiff testified that Mr. Sztark was one of four (4) employees (including himself) working on the staircase at the time of the accident, that Mr. Sztark was present when his accident occurred, and that accident. Plaintiff offers no Mr. Sztark came to plaintiff's assistance immediately after the reason why he failed to exercise due diligence in locating Mr. Sztark, a known witness to his accident, to obtain his Affidavit or testimony, prior to his original motion. 6. In addition, plaintiff waited approximately six (6) months to file the instant motion to renew (on May 20, 2022) even though plaintiff located Mr. Sztark in November 2021 and offers no reason for this delay. Also, plaintiff has not formally disclosed Mr. Sztark as a witness in any discovery document to date. Instead, plaintiff ambushes defendants with Page |2 2 of 20(FILED: KINGS COUNTY CLERK 0772172022 03:26 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 07/21/2022 Mr. Sztark’s Affidavit upon the instant motion to renew, thereby depriving defendants of an opportunity to depose Mr. Sztark in advance of the motion. 7. Nor has plaintiff cited to any reasonable justification for his failure to submit the Expert Affidavit of Mr. Pugh on the prior motion. In fact, plaintiff’s motion to renew offers no justification whatsoever for his failure to submit expert evidence on the prior motion. Plaintiff does not make a single argument as to why expert evidence was not submitted with his original motion papers. 8. In addition, the Affidavit of Mr. Sztark and the Expert Affidavit of Mr. Pugh do not change this Court’s prior determination denying plaintiff's summary judgment motion pursuant to Labor Law §240(1). If anything, the Affidavits raise additional issues of fact as to whether the stair clamp fell because of the absence or inadequacy of a safety device of the kind enumerated in the statute and whether any height differential between plaintiff and the stair clamp that fell on him was de minimis. In any event, New York Builders has submitted the Expert Affidavit of John Coniglio, P.E. which refutes Mr. Pugh’s Affidavit in its entirety, opining that Labor Law §240(1) is not applicable to the subject action. 9. Finally, plaintiffs notice of motion seeks “reargument” of New Y ork Builders’ prior cross-motion for summary judgment; however, plaintiff improperly makes this application approximately one and a half (1%) years after this Court’s Decision/Order, well-past the thirty (30) day deadline to file motions for reargument, pursuant to CPLR §2221. Also, plaintiff's instant motion includes no argument whatsoever regarding this Court’s prior dismissal of plaintiff's Labor Law §241(6) claim. As such, this Court’s dismissal of plaintiff's Labor Law §241(6) claim should remain undisturbed. PROCEDURAL HISTORY 10. In the interest of efficiency and judicial economy, your affirmant relies on the procedural history and exhibits as set forth in plaintiff's motion and e-filed as NY SCEF Doc. No. 89-105. However, plaintiff failed to include as exhibits New York Builders’ Notice of Cross- Motion, Attorney Affirmation in Support of Cross-Motion and in Opposition to plaintiff's Page |3 3 of 20(FILED: KINGS COUNTY CLERK 0772172022 03:26 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 07/21/2022 motion for summary judgment, which was efiled as NY SCEF Doc. No. 75-76, and New Y ork Builders’ Reply Affirmation in further support of their summary judgment motion, which was efiled as NY SCEF Doc. 79-80. STATEMENT OF FACTS Deposition Testimony of Plaintiff, Robert Zaborski 11. Plaintiff was performing his work along with three other New York Builders’ employees: Wilson (plaintiff's foreman), Carlos and Merek (aka Miroslaw Sztark). (NY SCEF Doc. No. 102, p. 54, 69, 183.). 12. The men were constructing a spiral staircase from the second to the third floor of the subject premises, which consisted of approximately 20-22 steps. (NY SCEF Doc. No. 102, p. 65-67, 111-112.) 13. To build the staircase, plaintiff and his co-workers would assemble the risers and then the steps, and place moveable clamps on the underside of the staircase, to keep the stair assembly together. (NYSCEF Doc. No. 102, p. 184-185.) The components would then be screwed together and the clamps removed for use on the next set of steps. (NY SCEF Doc. No. 102, p. 188, 191, 195.) 14. Plaintiffs duties were to hand Wilson tools, including clamps, hold the steps in place and install screws. (NY SCEF Doc. No. 102, p. 68.) Plaintiff would unscrew/loosen the clamps before handing them up to Wilson to install on the staircase. (NY SCEF Doc. No. 102, p. 187.) The clamps were installed underneath the staircase to support the steps. (NY SCEF Doc. No. 102, p. 93-94, 96.) 15. Prior to the accident, plaintiff and his co-workers had installed and removed clamps at least five to six times, without incident. (NYSCEF Doc. No. 102, p. 193.) The staircase was 90% complete prior to the accident. (NY SCEF Doc. No. 102, p. 112.) A clamp had been moved to a new position from a preceding step five minutes before the accident. (NY SCEF Doc. No. 102, p. 202, 208.) Page |4 4 of 20(FILED: KINGS COUNTY CLERK 0772172022 03:26 PM NYSCEF DOC. NO. 110 16. At the time of e accident, plainti: INDEX NO. 504273/2017 RECEIVED NYSCEF: 07/21/2022 f was in the process of either bending down to reach a drill to hand to Wilson, or in the process of handing a drill up to Wilson, when the accident occurred. screws on the staircase to tight 102p. 119.) 17. Doc. No. 102 T (NYSCEF Doc. No. 102, ten the staircase al ie accident occurred when one 0: p. 120-121.) staircase. (NY SCEF Doc. No. 102, p. 199.) 18. Plaintiff was standing underneat! Wilson and the ladder. (NYSCEF Doc. No. 102, p. 8 underneath the staircase. (NY SCEF Doc. No. 102, p. 199-200.) PI at the time of the accident. (NY SCEF Doc. No. 102, p. 121.) 19. After the accident, Merek (Miroslaw Sztark Doc. No. 102, p. 6-7.) Merek was in the area of plaintiff’ s accident Doc. No. 102, p. 7.) 20. At no time prior to the accident did plain shaking. Plaintiff did not make any complaints to anyone regard clamps prior to the accident. (NY SCEF Doc. No. 102, p. 210.) 21. Plaintiff does not know how the accident occurred. p. 127.) Plaintiff does not know (NY SCEF Doc. No. 102, p. 211.) 22. At no time prior netting used. Plaintifi work. (NY SCEF Doc. No. 102, p. 129, 180.) 23. Plaintifi owning a hard not to perform . 200-201, 224-226.) Wilson was installing the time of the accident. (NY SCEF Doc. No. the clamps fell and struck plaintiff. (NY SCEF The clamp fell approximately one and one-half meters from the e staircase, approximately 2% feet away from -82, came tiff observe any clam, 18, 199.) Wilson was also aintiff had his back to Wilson to assist plaintiff. (NY SCEF when it occurred. (NY SCEF Ss moving or ling loose, moving or shaking (NY SCEF Doc. No. 102, why the clamp fell and does not know whether it was loose. the accident during construction of spiral staircases was did not make any complaints regarding a lack of netting to perform his was not wearing a hard hat at the time of the accident and denied ever at. (NY SCEF Doc. No. 102, p. 176.) He did “not know” whether it was safe or his work without a hard hat. (NYSCEF Doc. No. 102, p. 178.) Plaintiff did not Page |5 5 of 20(FILED: KINGS COUNTY INDEX NO. 504273/2017 CLERK 0772172022 03:26 PM NYSCEF DOC. NO. 110 make any complaints p.179,) RECEIVED NYSCEF: 07/21/2022 to anyone regarding the lack of a hard hat. (NYSCEF Doc. No. 102, Deposition Testimony of New Y ork Builders of Stairs 24. (plaintiff's employer). personal protective e gloves and face mask. 25. while performing work. use of hard hats was discussed at safety meetings with New York Builders’ employees. Mr. Baran recalled tel four months prior to the accident. (NY SCEF Doc. No. 104, p. 75.) Mr. Baran maintained that it is a "standard guideline" that workers wear hard hat Adam Baran is the Project Manager for third-party defendant, New Y ork Builders Mr. Baran testified that all New York Builders' employees are given [uipment upon their hire with New Y ork Builders, including a hard hat, (NY SCEF Doc. No. 104, p. 70.) (NY SCEF Doc. No. 104, p. 72, 80.) Prior to the subject accident, ing plain iff to wear a hard hat during installations, approximately three to 26. — In addi safety booklet with guidelines These guidelines have been hanging on the wall for approximately eight to ten years. addition, there is an OSHA poster on shop, which also lis‘ 27, Mr. prior construction lent. (NY SCE 28. be used beneath the acci Mr. the s p. 88. access the relevant 102. ion, New Y ork Builders has written safety procedures, which consist of at is posted in the locker room of the New Y ork Builders’ shop. n ie wall in the locker room of the New York Builders’ -89.) If netting ts various safety regul Baran observed plaint of another staircase F Doc. No. 104, p. 82- Baran maintained that ations. (NY SCEF Doc. No. 104, p. 75-77.) iff, Wilson and Carlos all wearing hard hats during the approxima' 83.) tely one to two weeks before plaintiff's neither netting nor any other protective equipment may staircase to avoid fal! was installed on the underside o arts to make the necessary adjust ing objects because access is needed to the underside of taircase for New Y ork Builders' employees to perform their work. (NY SCEF Doc. No. 104, the staircase, New Y ork Builders could not ments. (NY SCEF Doc. No. 104, p. 88-89, Page |6 6 of 20(FILED: KINGS COUNTY CLERK 0772172022 03:26 PM NYSCEF DOC. NO. 110 29. INDEX NO. 504273/2017 RECEIVED NYSCEF: 07/21/2022 The subject clamp which struck the plaintiff was located approximately two feet above the plaintiff's head and was reachable by both plaintiff and Carlos. (NY SCEF Doc. No. 104, p. 104.) Deposition Testimony of Cornerstone Builders 30. LLC, as superintendent 31. of the project. Joel Banda testified on behalf of the general contractor, Comerstone Builders NY Mr. Banda stated that the use of hard hats was required at the premises. (NY SCEF Doc. No. 103, p. 53.) If Mr. Banda observed any workers not wearing hard hats in the premises, they would 103, p. 62-63.) Affidavit of John C oniglio, P.E. 32. ‘The Af devices enumerated in (Exhibit A.) equipment, may be used the underside of the staircase for New York Buil Mr. Coniglio states that the statute are required to Mr. Coniglio states that neither ne’ beneath the staircase to avoi , while keeping items from require the free movement of the tool/device such as are placed stringer to stringer compressing them toge are then mechanically ‘astened. Getting the correct e used while erecting the bar clamp. He states er to hold in place the st the items by maneuvering the clamp, rendering a tethering system impracticab! 33. Mr. Pugh, was not in ef Mr. Coniglio further states that the ANSI standard cited by e asked to obtain a hard hat or leave the premises. (NY SCEF Doc. No. ‘idavit of liability expert, John Coniglio, P.E., confirms that none of the a spiral staircase. tting, tethering, nor any other protective falling objects because access is needed to ders' employees to perform their work. ‘alling is always the objective, many tasks that the bar clamps ep and riser which level and position requires agility to move e. plaintiff's expert, ect at the time of the subject loss. Furthermore, both standards (ANSI or ISEA) cited by Mr. Pug th are voluntary standards and there is no current regul hand tools used overhead. (Exhibit A.) Page |7 7 of 20 ation for tethering(FILED: KINGS COUNTY CLERK 0772172022 03:26 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 07/21/2022 ARGUMENT 34. A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation. Elder v. Elder, 21 A.D.3d 1055 (2d Dep’t 2005); Matter of Allstate Ins. Co. v. Liberty Mut. Ins., 58 A.D.3d 727 (2d Dep’t 2009). 35. A motion for leave to renew must be based upon new facts, not offered on the original application, “that would change the prior determination.” CPLR §2221[e][2]; Matter of Korman v. Bellmore Pub. Schools, 62 A.D.3d 882 (2d Dep’t 2009). 36. | The new or additional facts must have either not been known to the party seeking renewal (see Matter of Shapiro v. State of New York, 259 A.D.2d 753 (2d Dep’t 1999)) or may, in the Supreme Court's discretion, be based on facts known to the party seeking renewal at the time of the original motion (see Cole-Hatchard v. Grand Union, 270 A.D.2d 447 (2d Dep’t 2000)). However, in either instance, a “reasonable justification” for the failure to present such facts on the original motion must be presented CPLR §2221[e][3]; Matter of Korman, 62 A.D.3d at 884. What constitutes a “reasonable justification’ is within the Supreme Court's discretion. Heaven v. McGowan, 40 A.D.3d 583 (2d Dep’t 2007). I PLAINTIFF HAS FAILED TO CITE TO ANY REASONABLE JUSTIFICATION FOR HIS FAILURE TO PRESENT THE AFFIDAVITS OF MR. SZTARK AND HIS EXPERT ON THE PRIOR MOTION 37. Plaintiff has failed to cite to any reasonable justification for his failure to present the Affidavit of eyewitness Miroslaw Sztark on his prior motion for summary judgment, pursuant to Labor Law §240(1). 38. In a case similar to the case at bar, Abrams v. Berelson, 94 A.D.3d 782 (2d Dep’ 2012), the Second Department held that plaintiff did not demonstrate “reasonable justification” for not presenting new evidence on prior motion for summary judgment where efforts made by plaintiff to locate a witness had occurred after motion for summary judgment had been decide and plaintiff did not move until six months after locating witness. Page |8 8 of 20(FILED: KINGS COUNTY CLERK 0772172022 03:26 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 07/21/2022 39. Similarly, in Lardo v. Rivlab Transp. Corp., 46 A.D.3d 759 (2d Dep’t 2007), the Second Department reversed the Supreme Court’s decision granting defendants' motion for leave to renew where defendants submitted one defendant's affidavit which presented new evidence setting forth defendant's version of events surrounding accident, where defendants failed to give reasonable justification for failing to submit those facts in opposition of a prior motion. 40. Also, in Kirby v. Suburban Elec. Engineers Contractors, Inc., 83 A.D.3d 1380 (4th Dep’t 2011), plaintiffs failed to demonstrate that their purported new evidence was not in existence or not available at the time of defendant's motion for summary judgment, where in support of their motion for leave to renew, plaintiffs submitted affidavits in which information presented could have been discovered and presented earlier with due diligence. 41. The Second Department has consistently held that plaintiff must cite to a reasonable justification for failure to submit new evidence on the prior motion in support of a motion for leave to renew. Rowe v. NY CPD, 85 A.D.3d 1001 (2d Dep’t 2011) [Supreme Court did not improvidently exercise its discretion in denying leave to renew where “new evidence” consists of documents which the plaintiff knew existed and were in fact in his own possession at the time the initial motion was made and no reasonable justification exists for the plaintiff's failure to exercise due diligence by submitting the documents in the first instance]; Deutsche Bank Tr. Co. v. Ghaness, 100 A.D.3d 585 (2d Dep’t 2012) [mortgagor was not entitled to leave to renew and reargue his motion based on “new evidence,” which consisted of information the mortgagor knew or should have known existed at the time of his motion to vacate, absent a reasonable justification as to why mortgagor failed to submit the information in the first instance]; Leyberman v. Leyberman, 43 A.D.3d 925 (2d Dep’t 2007) [petitioner was not entitled to leave to renew and argue where she failed to present new facts that were unavailable to her at time she filed her written objections and which would have changed prior determination]; Renna v. Gullo, 19 A.D.3d 472 (2d Dep’t 2005) [Supreme Court providently exercised its discretion in denying the plaintiffs' motion for leave to renew as they failed to offer a reasonable justification as to why the allegedly new facts were not submitted earlier]; Deutsche Bank Nat. Tr. Co. v. Page |9 9 of 20(FILED: KINGS COUNTY CLERK 0772172022 03:26 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 07/21/2022 Wilkins, 97 A.D.3d 527 (2d Dep’t 2012) [trial court providently exercised its discretion in denying mortgagor's motion for leave to renew where purported new facts had been available to him at the time he opposed mortgagee's motion; mortgagor had failed to demonstrate reasonable justification for failing to submit purported new facts earlier, and purported new facts would not have changed prior determination]. 42. Likewise, here, plaintiff has failed to offer any reasonable justification for his ‘ailure to present the Affidavit of eyewitness Miroslaw Sztark on his prior motion for summary judgment, pursuant to Labor Law §240(1). Plaintiff's own deposition testimony establishes that plaintiff had full knowledge (or should have known) that Mr. Sztark was a witness to his alleged accident before his prior motion. Specifically, plaintiff testified that Mr. Sztark was one of four 4) employees (including himself) working on the staircase at the time of the accident, thai Mr. Sztark was present when his accident occurred, and that Mr. Sztark came to plaintiff's assistance immediately after the accident. (NYSCEF Doc. No. 102, p. 54, 69, 183, 6-7. Plaintiff offers no reason why he failed to exercise due diligence in locating Mr. Sztark, a known witness to his accident, to obtain his A ffidavit or testimony, prior to his original motion. 43. In addition, plaintiff waited approximately six (6) months to file the instant motion to renew (on May 20, 2022) even though plaintiff located Mr. Sztark in November 202 and offers no reason for this delay. Also, plaintiff has not formally disclosed Mr. Sztark as a witness in any discovery document to date. Instead, plaintiff ambushes defendants witl Mr. Sztark’s Affidavit upon the instant motion to renew, thereby depriving defendants of an opportunity to depose Mr. Sztark in advance of the motion. 44. Nor has plaintiff cited to any reasonable justification for his failure to submit the Expert Affidavit of Mr. Pugh on the prior motion. In fact, plaintiff’s motion to renew offers no justification whatsoever for his failure to submit expert evidence on the prior motion. Plaintiff does not make a single argument as to why expert evidence was not submitted with his original motion papers. Page |10 10 of 20(FILED: KINGS COUNTY CLERK 0772172022 03:26 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 07/21/2022 45. The case law is clear that retention of a new expert is not a legitimate basis for renewal of a prior motion. Burgos v. Rateb, 64 A.D.3d 530 (2d Dep't 2009). 46. | The Second Department has routinely denied motions to renew based on parties’ failure to include reasonable justification for failure to present expert evidence on the prior motion. In Byun Sik Chu v. Kerrigan, 154 A.D.3d 731 (2d Dep’t 2017), the Supreme Court providently exercised its discretion in denying plaintiff's motion for leave to renew based on affidavit of his physician, an affirmation of a radiologist, and his own affidavit as plaintiff failed to provide justification for his failure to include expert affidavits and affirmation in opposition to defendants' motions. 47. In Ramirez v. Khan, 60 A.D.3d 748 (2d Dep’t 2009), the Second Department affirmed the trial court’s decision denying plaintiff's motion for leave to renew where plaintif: failed to provide reasonable justification for failure to include physician's affidavit on prior motion and, in any event, that affirmation would not have changed prior determination awarding summary judgment to defendant. 48. In Cioffi v. S.M. Foods, Inc., 142 A.D.3d 520 (2d Dep’t 2016), the Secon Department affirmed the trial’s court’s denial of police officer's motion for leave to renew where officer did not point to new or additional facts beyond new affidavits from his experts and di not offer explanation as to why affidavits could not have been submitted with original motion papers. 49, In Hernandez _v. Nwaishienyi, 148 A.D.3d 684 (2d Dep’t 2017), the Secon Department affirmed the Supreme Court’s denial of motion for leave to renew where plaintif! did not point to new or additional facts beyond new affidavit from his expert and did not offer explanation as to why affidavit could not have been submitted with original motion papers 50. In Daria v. Beacon Cap. Co., 299 A.D.2d 312 (2d Dep’t 2002), motion for leave to renew motion for summary judgment was properly denied where movant failed to offer reasonable justification for failure to submit expert affidavit in opposition to original summary judgment motion. Page |1l 11 of 20(FILED: KINGS COUNTY CLERK 0772172022 03:26 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 110 51. RECEIVED NYSCEF: 07/21/2022 In sum, plaintiff has failed to cite to any reasonable justification for the failure to present the Affidavit of Mr. Sztark and Expert Affidavit of Mr. Pugh with his original motion papers, and therefore, plaintiff’s motion to renew should be denied. II. THE AFFIDAVIT OF MR. SZTARK AND EXPERT AFFIDAVIT DO NOT CHANGE THIS COURT’S PRIOR DETERMINATION DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT PURSUANT TO LABOR LAW §240(1) 52. _ Plaintiff’s motion to renew should be denied as the Affidavit of Mr. Sztark and the Expert Affidavit of Mr. Pugh do not change this Court’s prior determination denying plaintiff's summary judgment motion pursuant to Labor Law §240(1). If anything, the Affidavits raise further additional issues of fact as to whether the stair clamp fell because of the absence or inadequacy of a safety device of the kind enumerated in the statute and whether any height differential between plaintiff and the stair clamp that fell on him was de minimis. (a) The Affidavit of Mr. Sztark and Expert Affidavit do not change this Court’s prior determination finding issues of fact as to whether the stair clamp fell because of the absence or inadequacy of a safety device of the kind enumerated in the statute 53. This Court's Decision/Order, dated March 1, 2021, properly denied plaintiff’ s motion for summary judgment, pursuant to Labor Law §240(1), based on issues of fact as whether the stair clamp fell because of the absence or inadequacy of a safety device of the kind enumerated in the statute. Specifically, the Court stated “Similarly, since ‘Labor Law §240(1) should be construed with a commonsense approach to 18 N.Y .3d 134 (2011) e realities of the workplace at issue (Salazar v. Novalex Contr. Corp. , if the trier of fact believes the swom witness statement that safety netting or other securing devices would not have been feasible considering the work performed, there would be thus no Labor Law §240(1) violation. This also p. 19.) presents an issue of credil 54. ility.” (NY SCEF Doc. No. 95, Here, the Affidavit of Mr. Sztark does not change the prior determination of this Court as to whether the stair clamp fell because of the absence or inadequacy of a safety device Page |12 12 of 20(FILED: KINGS COUNTY CLERK 0772172022 03:26 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 07/21/2022 of the kind enumerated in the statute. In fact, Mr. Sztark’s Affidavit is completely silent on the issue whether there was an absence or inadequacy of a safety device at the site. 55. However, the testimony of the project manager for plaintiff's employer, Adam Baran, of New York Builders makes clear 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. (NY SCEF Doc. No. 104, p. 88-89.) If netting was installed on the underside of the staircase, New Y ork Builders could not access the relevant parts to make the necessary adjustments. (NY SCEF Doc. No. 104, p. 88-89, 102.) 56. Notably, even Mr. Sztark’s Affidavit admits that workers were required to work underneath the staircase during assembly to install plywood blocks and to loosen and remove the pipe clamp. (NY SCEF Doc. No. 93, 410.) 57. Plaintiff’s own testimony confirms 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. (NY SCEF Doc. No. 102, p. 129, 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. (NY SCEF Doc. No. 102, p. 68.) 58. In acase directly on point to the case at bar, the Appellate Division affirmed the lower Court’s decision in Love v. New Y ork State Thruway Auth., 17 A.D.3d 1000 (4th Dept. 2005), where 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 Page |13 13 of 20(FILED: KINGS COUNTY CLERK 0772172022 03:26 PM NYSCEF DOC. NO. 110 piece of concrete, nor the clamp, was being hoiste State Thruway Auth.,17 A.D.3d at 59. Likewise, here, there is no evidence RECEI 1001. INDEX NO. 504273/2017 VED NYSCEF: 07/21/2022 or secured when it fell. Love v. New York at 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 Plaintiff himself testified that the preceding step was five minutes before the accident. (NY SCEF Doc. No. 102, p. such, the absence or inadequacy o: clamp to fall. 60. Nor does the Affi determination of this Court as inadequacy of a safety device o: defendants’ failure to properly secure the stair clamp represent an elevated height. Specifically, Mr. Pugh references The American National Standards Institute (ANSI) and the International Saf defendants to secure tools at heights using a tethering system. (NYSCEF Doc. No. 94. However, defendants’ liability expert, John Coniglio, P.E., confirms that by Mr. Pugh was not in effect at the time of the subject loss. Furthermo: the kind enumerated in the statute. Mr. Pugh opines that ed a risk of a falling object from ‘ety Equipment Association (ISEA) as purportedly requiring the ANSI standard cited re, both standards (A NS: e time of the accident. (NYSCEF Doc. No. 104, p. 99.) last time a clamp had been moved to a new position from a 202, 208.) As a necessary hoisting or securing device did not cause the stair avit of plaintiffs expert, Dr. James Pugh, change the prior whether the stair clamp fell because of the absence or or ISEA) are voluntary standards and there is no current regulation for tethering hand tools used overhead. (Exhibit A.) 61. Furthermore, Mr. Coniglio’s Affidavit confirms that none o enumerated in the statute are required to be used while erecting a spiral staircase. cites to the testimony of Mr. Baran and states that neither netting, tethering, protective equipment, may be used beneath the staircase to avoid falling objects is needed to the underside of the he devices Mr. Coniglio nor any other /ecause access staircase for New Y ork Builders' employees to perform their work. Mr. Coniglio states that, while keeping items from falling is always the o tasks require the free movement of the tool/device such as the bar clamp. He stat Page |14 14 of 20 jective, many tes that the bar(FILED: KINGS COUNTY CLERK 0772172022 03:26 PM NYSCEF DOC. NO. 110 INDEX NO. 504273/2017 RECEIVED NYSCEF: 07/21/2022 clamps are placed stringer to stringer compressing them together to hold in place the step and riser which are then mechanically fastened. Getting the correct leve' and position requires agility to move the items by maneuvering the clamp, rendering a tethering system impracticable. (Exhibit A). 62. support a Labor Law §240(1) violation, in the statute, which are "scaffolding, eir hire with New Y ork Builders, inc hats while performing work. (NY SCE le use of hard hats was discussed al Mr. Sztark and Mr. Pugh’s re! races, irons, [and] ropes." Labor Law §240 No. 104, p. 70.) Mr. Baran maintained that Mr. Baran recalled telling plaintiff to wear a ‘our months prior to the accident. (NY SCEF Doc. No. 104, p. 75.) erence to the allege asa hoists, ( stays, ladders, slin luding i F Doc. No. 104, p. 72, 80.) Wilson and Carlos all wearing hard approximately one to two weeks before plaint (NY SCEF Doc. No. 103, p. 53.) If Mr. Banda observed any worl ats during the prior const ). In any event, Mr. a hard hat, gloves and is a "standard guidel safety meetings with New ard hat during installat lack of hard hats does not ard hat is not safety device of the kind enumerated s, hangers, blocks, pulleys, Baran (plaintiffs employer) estified that all New Y ork Builders' employees are given personal protective equipment upon face mask. (NY SCEF Doc. ine" that workers wear hard Prior to the subject accident, York Builders’ employees. ions, approximately three to Mr. Baran observed plaintiff, truction of another staircase tiff’s accident. (NY SCEF Doc. No. 104, p. 82-83.) Mr. Banda of Cornerstone Builders stated that the use of hard hats was required at the premises. ers not wearing hard hats in the premises, they would be asked to obtain a hard hat or leave the premises. (NY SCEF Doc. No. 103, p. 62-63.) 63. Also, as noted in Mr. Coniglio’s Affidavit, a pho’ tograph marked at plaintiff's deposition depicts a “Danger- Hard Hat Area” sign clearly displayed on the chain link fence surrounding the project-front. (Exhibit A.) Page |15 15 of 20(FILED: KINGS COUNTY CLERK 0772172022 03:26 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 07/21/2022 (b) The Affidavit of Mr. Sztark and Expert Affidavit do not change this Court’s prior determination finding issues of fact as to whether any height differential between plaintiff and the stair clamp that fell on him was de minimis 64. This Court's Decision/Order, dated March 1, 2021, properly denied plaintiff’ s motion for summary judgment, pursuant to Labor Law §240(1), based on issues of fact as to whether any height differential between plaintiff and the stair clamp that fell on him was de minimis. 65. The deposition testimony of the parties establishes 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 at his duties were to hand Wilson the stair clamps, hold the steps in place and install screws. (NY SCEF Doc. No. 102, p. 68.) Although plaintiff approximated that the clamp fell a distance of 1% meters, Mr. Baran of New York Builders testified that the clamp was within touching istance from plaintiff, approximately two feet above plaintiff's head, when it fell. (NYSCEF Doc. No. 104, p. 104.) 66. n Kuhn v. Giovanniello, 145 A.D.3d 1457 (4th Dept. 2016), the Court affirmed e lower Court’s decision where plaintiff, while standing at ground level, was struck in the Do oulder by a falling pipe that weighed approximately 60 pounds. The Court held that, although ere was conflicting deposition testimony conceming 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 @ ways 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. 67. The Affidavit of Mr. Sztark does not change this Court’s prior determination on this issue. In fact, Mr. Sztark’s Affidavit confirms that workers would reach up from underneath the staircase and manually loosen and remove stair clamps from the steps. He also attests that workers would wedge a piece of plywood in between the jaws of the stair clamp and the step to further tighten and secure the step during the work. (NYSCEF Doc. No. 93, 47-9.) Although Page |16 16 of 20(FILED: KINGS COUNTY CLERK 0772172022 03:26 PM NYSCEF DOC. NO. 110 INDEX NO. 504273/2017 RECEIVED NYSCEF: 07/21/2022 Mr. Sztark approximated that the clamp fell a distance of 4% feet, his Affidavit confirms that the clamp was within touching distance from plaintiff, approximately two feet above plaintiff’s head, when it fell. finding issues of fact as to the heig 68. The Affidavit of Mr. Pugh does not change this Court’s prior determination ht differential between plaintiff and the stair clamp that fell on him. In fact, Mr. Pugh’s Affidavit is completely silent on the issue of the distance between plaintiff and the stair clamp. 69. Plaintiff's argument at the statements made by plaintiff's foreman, Wilson, to Mr. Baran are inadmissible hearsay is without basis in the law. Hearsay statements are admissible in support of a motion the failure to tender evidence in a Magmt., P.C., 305 A.D.2 378 (2d or summary judgment “... provided an acceptable excuse for missible form is supplied.” Maniscalco v. Liro Eng'g Const. Dep’t 2003). Here, Wilson is no longer employed by third- party defendant, New Y ork Builders, and as such, New Y ork Builders was unable to obtain the Affidavit or cooperation of Wilson to oppose plaintiff’s prior motion and/or to support their prior cross-motion. As such, motions. 70. Given thai Court's prior determinati and the stair clamp thal the A ffi ion findin fell on judgment as to Labor Law §240( denied. le statements made ig issues of CONCLUSION y Wilson to Mr. Baran are admissible upon the lavit of Mr. Sztark and Expert Affidavit do not change this ‘act as to the height differential between plaintiff im, the Court’s denial of plaintiff's motion for summary ) was proper and plaintiff's motion for renewal should be 71. Based on the foregoing, plaintiff’s motion to renew, filed almost one and a half (14) years after this Court’s Decision/Order, should be denied as (1) plaintiff fails to cite to any reasonable justification for plaintiff's failure to submit the Affidavit of Miroslaw Sztark and Expert Affidavit of James Pugh P.E. on plaintiff's prior motion and (2) the Affidavits do not Page |17 17 of 20(FILED: KINGS COUNTY CLERK 0772172022 03:26 PM NYSCEF DOC. NO. 110 INDEX NO. 504273/2017 RECEIVED NYSCEF: 07/21/2022 change this Court's prior determination denying plaintiff's summary judgment motion pursuant to Labor Law §240(1). WHEREFORE, it is respectfully requested that the Court deny plaintiff's motion in its entirety and grant such other and further relief as the Court may deem just, proper, and equitable. Dated: Elmsford, New Y ork July 21, 2022 Y ours, etc., Talene D. White By: Talene D. White, Esq. PILLINGER MILLER TARALLO, LLP Attorneys for Third-Party Defendant New Y ork Builders of Stairs, Inc. 555 Taxter Road, 5th Floor Elmsford, NY 10523 (914) 703-6300 PMT File No. N-PLM-00135/TDW TO: THE PLATTA LAW FIRM, PLLC Attorney for Plaintiff Robert Zaborski 42 Broadway Suite 1927 New York, NY 10004 212) 514-5100 TRAUB LIEBERMAN STRAUS AND SHREWSBERRY, LLP Attomey for Defendant/Third-Party Plaintiff Cornerstone Builders NY LLC Mid- Westchester Executive Park Seven Skyline Drive Hawthome, NY 10532 914) 347-2600 Page |18 18 of 20(FILED: KINGS COUNTY CLERK 0772172022 03:26 PM NYSCEF DOC. NO. 110 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ROBERT ZABORSKI, Plaintiff, - against - INDEX NO. 504273/2017 RECEIVED NYSCEF: 07/21/2022 CERTIFICATION PURSUANT TO UNIFORM RULES 202.8-b Index No. 504273/2017 MB LORIMER LLC AND CORNERSTONE BUILDERS NY LLC, Defendant. CORNERSTONE BUILDERS NY LLC, Third-Party Plaintiff, - against - NEW YORK BUILDER OF STAIRS, INC., Third-Party Defendant. I hereby certify the total number of words in this AFFIRMATION IN OPPOSITION , inclusive of point headings and footnotes, and exclusive of the caption and signature block is 5,945 words, which is less than the 7,000 word limit imposed by 22 NY CRR 202.8-b. Dated: Elmsford, New Y ork July 21, 2022 Yours, etc., PILLINGER MILLER TARALLO, LLP By: Talene D. White TALENE D. WHITE Attorneys for Third-Party Defendant New Y ork Builders of Stairs, Inc. 555 Taxter Road, 5th Floor Elmsford, NY 10523 (914) 703-6300 PMT File No. N-PLM-00135/TDW 19 of 20(FILED: KINGS COUNTY CLERK 0772172022 03:26 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 07/21/2022 INDEX NO. 504273/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ROBERT ZABORSKI, PLAINTIFF, - AGAINST - MB LORIMER LLC AND CORNERSTONE BUILDERS NY LLC, DEFENDANT. CORNERSTONE BUILDERS NY LLC, THIRD-PARTY PLAINTIFF, - AGAINST - NEW YORK BUILDER OF STAIRS, INC., THIRD-PARTY DEFENDANT. AFFIRMATION IN OPPOSITION PILLINGER MILLER TARALLO, LLP Attomeys for Third-Party Defendant New Y ork Builders of Stairs, Inc. 555 Taxter Road, 5th 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, pursuant to 22 N.Y.C.R.R. § 130-1.1a, the foregoing AFFIRMATION IN OPPOSITION is/are neither frivolous nor frivolously presented. Dated: Elmsford, New Y ork Talene D. White July 21, 2022 TALENE D. WHITE PLEASE TAKE NOTICE that the within is a true copy of a entered in the office of the clerk of the within named Court on that a of which the within is a true copy will be presented for settlement to the Hon. one of the judges of the within named Court at , onat 9:30 am. oo PILLINGER MILLER TARALLO, LLP Attomeys for Third-Party Defendant New Y ork Builders of Stairs, Inc. 555 Taxter Road, 5th Floor Elmsford, NY 10523 (914) 703-6300 PMT File No. N-PLM-00135/TDW TDW/ars 2744095, 20 of 20