Preview
FILED: KINGS COUNTY CLERK 07/21/2022 03:26 PM INDEX NO. 504273/2017
NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 07/21/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
-----------------------------------------------------------------X
ROBERT ZABORSKI,
AFFIDAVIT OF
Plaintiff, JOHN P. CONIGLIO
- against - Index No. 504273/2017
MB LORIMER LLC AND CORNERSTONE BUILDERS
NY LLC,
Defendant.
_____-______-__.___________________--_____________-________-----X
CORNERSTONE BUILDERS NY LLC,
Third-Party Plaintiff,
- against -
NEW YORK BUILDER OF STAIRS, INC.,
Third-Party Defendant.
-___________________-______________________________-------------Ç
STATE OF NEW YORK )
) ss:
COUNTY OF ERIE )
John P. Coniglio, being duly sworn, deposes and says under penalty of perjury, as
follows:
QUALIFICATIONS/ BACKGROUND
1. I am the Managing Director and Principal Consultant of Occupational Safety &
Environmental Assoc. Inc. (OSEA), 3730A California Road, Orchard Park, New York 14127. In
that capacity, I manage the technical aspects for staff in three offices. I am also President of
Expert Litigation Services, Inc. This company is utilized to provide technical support to
attorneys as it relates to these matters.
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2. I am a practicing safety professional with over 40 years of experience in the
construction, heavy industry, process (chemical) and commercial areas. I have filled capacities
of safety supervisor, safety director, evaluator, master trainer and professional consultant serving
these industry sectors. I have several degrees from the SUNY system including a B.S. (Industrial
Technology), AAS (Civil & Fire Protection Technologies) and an MS Degree from Columbia
Southern University in Occupational Safety and Health Management. I have additionally
completed other advanced studies at Kennedy Western University receiving an MS degree in
Environmental Engineering and a PhD in Safety Engineering. My strengths remain the result of
hands-on experience, analyzing, managing and deploying safety programs, initiatives, training
and problem resolution. I remain active as a business owner, trainer, and managing/performing
site safety audits, problem resolution and selection of appropriate methods for safe performance.
3. I maintain several certifications prominent within the safety discipline including:
Certified Safety Professional (CSP), Certified Hazardous Materials Manager (CHMM), Certified
NYS Workplace Safety & Loss Prevention Consultant (CSC), Master Trainer-National Center
for Construction Education & Research and hold the NYS Basic Code Enforcement Training
Certificate. I am an active OSHA Authorized Outreach Instructor for both Construction and
General Industry. I provide consultation throughout the domestic U.S., Puerto Rico, Mexico,
Canada and further international experience on managing projects in locations such as China and
Sri Lanka.
4. I have provided expert consultation for construction managers, general
contractors, owners, subcontractors, engineers, and architect clients. Since 1983, I have been
retained and have provided expert opinions and testimony relating to occupational accidents and
injuries for both plaintiff and defendants. I have testified in court as an occupational safety
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expert for construction and industrial operations including; New York State Supreme Court, New
York State Court of Claims, and Federal Court. I have also testified in the states of Virginia,
North Carolina, Ohio and New Jersey.
5. I am intimately familiar with demolition practices, fall protection and construction
site safety procedures and requirements. I regularly audit and manage site safety, instruct on
proper methods to safely set up and complete work tasks and have instructed numerous students
in construction safety including fall protection. I am intimately familiar with elevated work
including scaffolds, ladders and selection of the proper device(s) for tasks. I am additionally
well versed with materials handling, crane set up and use, boom truck utilization and proper
"loading"
methods for a project with construction materials including projects throughout the
NYC area.
6. I have authored numerous articles relating to the field of safety and the text,
Basics."
"General Industry Safety A copy of my curriculum vitae is attached as Appendix A.
CLAIMS AGAINST DEFENDANTS/THIRD PARTY DEFENDANT
7. I have been requested by counsel for Third Party Defendant, New York Builder of
Stairs, Inc. (hereinafter "New York Builder"), to review the evidence in this case regarding an
accident, which allegedly occurred on July 18, 2016, when plaintiff was struck by a stair clamp
while constructing a staircase at the premises, 163 Middleton Street, Brooklyn, New York,
resulting in personal injuries.
8. Plaintiff claims that defendants, MB Lorimer LLC and Cornerstone Builders NY
LLC, violated the New York State Labor Law §§240(1), 241(6) and 200, and common-law
negligence principles. Defendant, Cornerstone Builders NY LLC, has commenced a third-party
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action against NY Builder pursuant to claims for contractual and common-law indemnification
and contribution and breach of contract.
MATERIALS REVIEWED
9. My opinions in this Affidavit are based on my knowledge and experience in the
construction industry as a practicing safety professional and my review of the following
documents and materials:
" Copies of pleadings, Summons and Complaint, Verified Answers,
including
Third-Party Summons and Complaint and Answer to Third-Party Complaint
" Plaintiff's Judgment motion and exhibits of Opposition of
Summary May 7, 2020,
Cornerstone Builders and exhibits, Opposition of NY Builders and exhibits
" NY Builders cross-motion for summary judgment and exhibits
" Bills of Particular
" Deposition of Plaintiff, Robert Zaborski, dated March 29, April
testimony 2019,
4, 2019 and May 13, 2019
" Deposition of Cornerstone dated June 14, 2019
testimony
" Deposition testimony of NY Builder dated July 11, 2019
" Two photographs marked at plaintiff's Deposition 6-14-19
(2)
" Plaintiff s motion to renew and exhibits, Affidavit of Affidavit
including Plaintiff,
of Miroslaw Sztark and Affidavit Dr. James Pugh P.E.
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FACTUAL BACKGROUND
10. Plaintiff's Bill of Particulars alleges that on July 18, 2016, plaintiff was struck by
a stair clamp while constructing a staircase at the premises, 163 Middleton Street, Brooklyn,
New York, resulting in personal injuries.
11. Plaintiff further alleges that defendant violated §§200, 240(1) and 241(6) of the
Labor Law of the State of New York and common-law negligence principles, as well as, several
provisions of Rule 23 of the Industrial Code of the State of New York, including 12 NYCRR
§§23-1.7, 23-1.8, 23-1.18, 23-1.30, 23-1.32, 23-1.33 and 23-2.1.
12. Plaintiff was hired by New York Builders in approximately January 2015
(approximately 1½ years before the alleged accident). (Zaborski, p. 25.)
13. On July 18, 2016, plaintiff was at the premises, 163 Middleton Street, Brooklyn,
New York, performing work on behalf of New York Builders. (Zaborski, p. 28.)
Builders'
14. Plaintiff was performing his work along with three other New York
employees: Wilson (plaintiff's foreman), Carlos and Merek (aka Miroslaw Sztark). (Zaborski,
p. 54, 69, 183.).
15. The men were constructing a spiral staircase from the second to the third floor of
the subject which consisted of 20-22 steps. p. 111-
premises, approximately (Zaborski, 65-67,
112.)
16. 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. (Zaborski, p. 184-185.) The components would then be screwed together
and the clamps removed for use on the next set of steps. (Zaborski, p. 188, 191, 195.)
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17. Plaintiff's duties were to hand Wilson tools, including clamps, hold the steps in
place and install screws. (Zaborski, p. 68.) Plaintiff would unscrew/loosen the clamps before
handing them up to Wilson to install on the staircase. (Zaborski, p. 187.) The clamps were
installed underneath the staircase to support the steps. (Zaborski, p. 93-94, 96.)
18. Prior to the accident, plaintiff and his co-workers had installed and removed
clamps at least 5-6 times, without incident. (Zaborski, p. 193.) The staircase was 90% complete
prior to the accident. (Zaborski, p. 112.)
19. A clamp had been moved to a new position from a preceding step five minutes
before the accident. (Zaborski, p. 202, 208.)
20. At the time of the accident, plaintiff 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. (Zaborski, p. 200-201, 224-226.) Wilson was installing screws on the
staircase to tighten the staircase at the time of the accident. (Zaborski, p. 119.)
21. The accident occurred when one of the clamps fell and struck plaintiff. (Zaborski,
p. 120-121.) The clamp fell approximately one and one-half meters from the staircase.
(Zaborski, p. 199.)
22. Plaintiff was standing underneath the staircase, approximately 2 ½ feet away from
Wilson and the ladder. (Zaborski, p. 81-82, 118, 199.) Wilson was also underneath the
staircase. (Zaborski, p. 199-200.)
23. Plaintiff had his back to Wilson at the time of the accident. (Zaborski, p. 121.)
24. At no time prior to the accident did plaintiff observe any clamps moving or
shaking. Plaintiff did not make any complaints to anyone regarding loose, moving or shaking
clamps prior to the accident. (Zaborski, p. 210.
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25. Plaintiff does not know how the accident occurred. (Zaborski, p. 127.) Plaintiff
does not know why the clamp felland does not know whether itwas loose. (Zaborski, p. 211.)
26. At no time prior to the accident during construction of spiral staircases was
netting used. Plaintiff did not make any complaints regarding a lack of netting to perform his
work. (Zaborski, p. 129, 180.
27. Plaintiff was not wearing a hard hat at the time of the accident and denied ever
owning a hard hat. (Zaborski, p. 176.) He did not know whether it was safe or not to perform
his work without a hard hat. (Zaborski, p. 178.) Plaintiff did not make any complaints to anyone
regarding the lack of a hard hat. (Zaborski, p. 179.)
28. A photograph of the exterior of the premises was marked at plaintiff's deposition
"DANGER- Area"
on June 14, 2019 as Plaintiff's 4, which depicts a Hard Hat sign on the chain
link fence surrounding the project-front side. (Photograph annexed hereto as Exhibit A)
29. Adam Baran is the Project Manager for third-party defendant, New York Builders
Builders'
(plaintiff's employer). Mr. Baran testified that all New York employees are given
personal protective equipment upon their hire with New York Builders, including a hard hat,
gloves and face mask. (Baran, p. 70.)
guideline"
30. Mr. Baran maintained that itis a "standard that workers wear hard hats
while performing work. (Baran, p. 72, 80.) Prior to the subject accident, the use of hard hats
Builders'
was discussed at safety meetings with New York employees. Mr. Baran recalled
telling plaintiff to wear a hard hat during installations, approximately three to four months prior
to the accident. (Baran, p. 75.)
31. New York Builder has written safety procedures, which consist of a safety
Builders'
booklet with guidelines that is posted in the locker room of the New York shop. These
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guidelines have been hanging on the wall for approximately eight to ten years. In addition, there
Builders'
is an OSHA poster on the wall in the locker room of the New York shop, which also
listsvarious safety regulations. (Baran, p. 75-77.)
32. Mr. Baran observed plaintiff, Wilson and Carlos all wearing hard hats during the
prior construction of another staircase approximately 1-2 weeks before plaintiff's accident.
(Baran, p. 82-83.)
33. Mr. Baran stated 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
Builders'
the staircase for New York employees to perform their work. (Baran, p. 88-89.) If
netting was installed on the underside of the staircase, New York Builders could not access the
relevant parts to make the necessary adjustments. (Baran, p. 88-89, 102.)
34. Mr. Baran did not witness the plaintiff's accident, but was informed by Wilson
out."
that they were adjusting the staircase and that he told the plaintiff to "watch (Baran, p. 99.)
However, the plaintiff was not paying attention and the clamp fell, striking him in the head.
out."
(Baran, p. 108.) Plaintiff did not respond to Wilson's direction to "watch (Baran, p. 101.)
35. Mr. Baran testified that it is standard protocol that workers be aware that when a
staircase is being adjusted that workers step out of the way. (Baran, p. 101.)
36. The subject clamp which struck the plaintiff was located approximately two feet
above the plaintiffs head and was reachable by both plaintiff and Carlos. (Baran, p. 104.)
37. Mr. Baran was told by Wilson that the plaintiff was not facing the staircase at the
time of the accident and that his back was facing the underside of the staircase. (Baran, p. 133.)
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38. Mr. Baran did not receive any violations or citations from OSHA or the
Department of Buildings and was not contacted by either agency regarding this occurrence.
(Baran, p. 129.)
39. Joel Banda testified on behalf of the general contractor, Cornerstone Builders NY
LLC, as superintendent of the project. Cornerstone had approximately two laborers working at
the site on a daily basis that performed cleaning, housekeeping and acceptance of deliveries.
(Banda, p. 32-33.)
40. At the time of the alleged accident, Mr. Banda would visit the premises
approximately two times per day, including once in the morning and once in the late afternoon,
to ensure that the job was being done per specifications. (Banda, p. 36, 60.) Mr. Banda was not
present at the time of the accident.
41. Mr. Banda stated that the use of hard hats was required at the premises. (Banda,
p. 53.) If Mr. Banda observed any workers not wearing hard hats in the premises, they would be
asked to obtain a hard hat or leave the premises. (Banda, p. 62-63.)
LABOR LAW §240(1) IS NOT APPLICABLE TO THIS CASE
42. Labor Law §240(1) states as follows:
"Allcontractorsandownersandtheiragentsexceptownersofone
and two-family dwellings who contract for but do not direct or
control the work, in the erection, demolition, repairing, altering,
painting, cleaning or pointing of a building or structure shall
furnish or erect or cause to be furnished or erected for the
performance of such labor; scaffolding, hoists, stays, ladders,
slings, hangers, blocks, pulleys, braces, irons, ropes, and other
devices which shall be so constructed placed and operated as to
"
give proper protection to a person so employed
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43. There is no evidence that the subject stair clamp fell because of the absence or
inadequacy of a safety device of the kind enumerated in the statute. The safety devices
enumerated in Labor Law §240(1) are "scaffolding, hoists, stays, ladders, slings, hangers, blocks,
ropes."
pulleys, braces, irons, [and] Labor Law §240(1). However, there is no evidence here
that any such devices were absent, inadequate or necessary for the performance of plaintiff's
work. Neither plaintiff nor any defendant testified that any such devices were required to
perform plaintiff's work.
44. The project manager for plaintiff's employer, Adam Baran, of New York Builders
testified that none of the devices enumerated in the statute were required to be used while
erecting a spiral staircase. Mr. Baran maintained that neither netting, nor any other protective
equipment, may be used beneath the staircase to avoid falling objects because access is needed to
Builders'
the underside of the staircase for New York employees to perform their work. (Baran,
p. 88-89.) If netting was installed on the underside of the staircase, New York Builders could not
access the relevant parts to make the necessary adjustments. (Baran, p. 88-89, 102.)
45. Plaintiff also testified 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. (Zaborski, p. 129, 180.) Plaintiff 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. (Zaborski, p. 68.)
defendants'
46. Plaintiff's expert, James Pugh, Ph.D., P.E., opines that failure to
properly secure the stair clamp represented a risk of a falling object from an elevated height.
Specifically, Mr. Pugh references The American National Standards Institute (ANSI) and the
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International Safety Equipment Association (ISEA) as purportedly requiring defendants to secure
tools at heights using a tethering system. However, the ANSI standard cited by Mr. Pugh was
not in effect at the time of the subject loss (July 18, 2016). Furthermore, both standards (ANSI
or ISEA) are voluntary standards and there is no current regulation requiring tethering hand tools
used overhead. Adding a tether as a safety device is not required by any code or the Labor Law.
47. None of the devices enumerated in the statute are required to be used while
erecting a spiral staircase. The testimony of Mr. Baran of NY Builder states that neither netting,
tethering, nor any other protective equipment, may be used beneath the staircase to avoid falling
Builders'
objects because access is needed to the underside of the staircase for New York
employees to perform their work.
48. Indeed, while keeping items from falling is always the objective, many tasks
require the free movement of the tool/device such as the bar clamp. The bar 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 level and position requires agility to move the items
by maneuvering the clamp, rendering a tethering system, netting or other safety device beneath
the staircase impracticable. By itsnature and area of use, there is no place to properly tether the
device and no room for a safety net which would encumber the work site and hinder the job.
49. PPE is a requirement whenever there is an overhead exposure. However, a hard
hat is not a safety device of the kind enumerated in the statute, which are "scaffolding, hoists,
ropes."
stays, ladders, slings, hangers, blocks, pulleys, braces, irons, [and] Labor Law §240(1).
Nevertheless, Mr. Baran of NY Builder (plaintiff's employer) testified that all New York
Builders'
employees are given personal protective equipment upon their hire with New York
Builders, including a hard hat, gloves and face mask. (Baran, p. 70.) Mr. Baran maintained that
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guideline"
itis a "standard that workers wear hard hats while performing work. (Baran, p. 72,
80.) Prior to the subject accident, the use of hard hats was discussed at safety meetings with
Builders'
New York employees. Mr. Baran recalled telling plaintiff to wear a hard hat during
installations, approximately three to four months prior to the accident. (Baran, p. 75.) Mr. Baran
observed plaintiff, Wilson and Carlos all wearing hard hats during the prior construction of
another staircase approximately 1-2 weeks before plaintiff's accident. (Baran, p. 82-83.)
50. Mr. Banda of Cornerstone Builders stated that the use of hard hats was required at
the premises. (Banda, p. 53.) If Mr. Banda observed any workers not wearing hard hats in the
premises, they would be asked to obtain a hard hat or leave the premises. (Banda, p. 62-63.)
51. Also, a photograph marked at plaintiff's deposition on June 14, 2019 depicts a
"DANGER- Area"
Hard Hat sign clearly displayed on the chain link fence surrounding the
project-front. (see Exhibit A herein.)
52. Any argument that the stair clamp was not properly secured, and should not have
loosened, is factually incorrect and contrary to the deposition testimony of the parties and
staircase construction standards and protocols. The project manager for New York Builders, Mr.
Baran, testified that when the steps are adjusted and put together, a stair clamp loosens when you
install the step or riser. (Baran, p. 105.) The staircase was being adjusted at the time of the
out."
accident and plaintiff's foreman, Wilson, told plaintiff to "watch (Baran, p. 99, 101, 108.)
Mr. Baran testified that it is standard protocol that workers be aware that when a staircase is
being adjusted and step out of the way. (Baran, p. 101.) There is no evidence that the stair
clamp was not properly secured.
53. The evidence also indicates that the subject stair clamp was always within
plaintiff's reach, approximately 2 feet above plaintiff's head, thus falling outside the scope of
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6'1"
Labor Law §240(1). Plaintiff testified that he stands in height and his duties were to hand
Wilson the stair clamps, hold the steps in place and install screws. (Zaborski, p. 68.) Although
plaintiff approximated that the clamp fell a distance of 1 ½ meters, Mr. Baran of New York
Builders testified that the clamp was within touching distance from plaintiff, approximately 2
feet above plaintiff's head, when itfell. (Baran, p. 104.)
54. Based on the foregoing, it is my opinion within a reasonable degree of Certified
Professional Safety certainty that Labor Law §240(1) is not applicable to this case.
John . Coniglio, CSP, C SC
Sworn to before me this
day of , 202
Public
ELIZABETH A. BERMINGHAM
PUBLIC-STATE OF NEW YORK
NOTARY
No, OlBE6212953
gd/--
Qualified In Erie County
Commlasion ExpiresOctober 26,
My
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Preview
FILED: KINGS COUNTY CLERK 07/21/2022 03:26 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 07/21/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -----------------------------------------------------------------X ROBERT ZABORSKI, AFFIDAVIT OF Plaintiff, JOHN P. CONIGLIO - against - Index No. 504273/2017 MB LORIMER LLC AND CORNERSTONE BUILDERS NY LLC, Defendant. _____-______-__.___________________--_____________-________-----X CORNERSTONE BUILDERS NY LLC, Third-Party Plaintiff, - against - NEW YORK BUILDER OF STAIRS, INC., Third-Party Defendant. -___________________-______________________________-------------Ç STATE OF NEW YORK ) ) ss: COUNTY OF ERIE ) John P. Coniglio, being duly sworn, deposes and says under penalty of perjury, as follows: QUALIFICATIONS/ BACKGROUND 1. I am the Managing Director and Principal Consultant of Occupational Safety & Environmental Assoc. Inc. (OSEA), 3730A California Road, Orchard Park, New York 14127. In that capacity, I manage the technical aspects for staff in three offices. I am also President of Expert Litigation Services, Inc. This company is utilized to provide technical support to attorneys as it relates to these matters. 1 of 13 FILED: KINGS COUNTY CLERK 07/21/2022 03:26 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 07/21/2022 2. I am a practicing safety professional with over 40 years of experience in the construction, heavy industry, process (chemical) and commercial areas. I have filled capacities of safety supervisor, safety director, evaluator, master trainer and professional consultant serving these industry sectors. I have several degrees from the SUNY system including a B.S. (Industrial Technology), AAS (Civil & Fire Protection Technologies) and an MS Degree from Columbia Southern University in Occupational Safety and Health Management. I have additionally completed other advanced studies at Kennedy Western University receiving an MS degree in Environmental Engineering and a PhD in Safety Engineering. My strengths remain the result of hands-on experience, analyzing, managing and deploying safety programs, initiatives, training and problem resolution. I remain active as a business owner, trainer, and managing/performing site safety audits, problem resolution and selection of appropriate methods for safe performance. 3. I maintain several certifications prominent within the safety discipline including: Certified Safety Professional (CSP), Certified Hazardous Materials Manager (CHMM), Certified NYS Workplace Safety & Loss Prevention Consultant (CSC), Master Trainer-National Center for Construction Education & Research and hold the NYS Basic Code Enforcement Training Certificate. I am an active OSHA Authorized Outreach Instructor for both Construction and General Industry. I provide consultation throughout the domestic U.S., Puerto Rico, Mexico, Canada and further international experience on managing projects in locations such as China and Sri Lanka. 4. I have provided expert consultation for construction managers, general contractors, owners, subcontractors, engineers, and architect clients. Since 1983, I have been retained and have provided expert opinions and testimony relating to occupational accidents and injuries for both plaintiff and defendants. I have testified in court as an occupational safety - 2 - 2 of 13 FILED: KINGS COUNTY CLERK 07/21/2022 03:26 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 07/21/2022 expert for construction and industrial operations including; New York State Supreme Court, New York State Court of Claims, and Federal Court. I have also testified in the states of Virginia, North Carolina, Ohio and New Jersey. 5. I am intimately familiar with demolition practices, fall protection and construction site safety procedures and requirements. I regularly audit and manage site safety, instruct on proper methods to safely set up and complete work tasks and have instructed numerous students in construction safety including fall protection. I am intimately familiar with elevated work including scaffolds, ladders and selection of the proper device(s) for tasks. I am additionally well versed with materials handling, crane set up and use, boom truck utilization and proper "loading" methods for a project with construction materials including projects throughout the NYC area. 6. I have authored numerous articles relating to the field of safety and the text, Basics." "General Industry Safety A copy of my curriculum vitae is attached as Appendix A. CLAIMS AGAINST DEFENDANTS/THIRD PARTY DEFENDANT 7. I have been requested by counsel for Third Party Defendant, New York Builder of Stairs, Inc. (hereinafter "New York Builder"), to review the evidence in this case regarding an accident, which allegedly occurred on July 18, 2016, when plaintiff was struck by a stair clamp while constructing a staircase at the premises, 163 Middleton Street, Brooklyn, New York, resulting in personal injuries. 8. Plaintiff claims that defendants, MB Lorimer LLC and Cornerstone Builders NY LLC, violated the New York State Labor Law §§240(1), 241(6) and 200, and common-law negligence principles. Defendant, Cornerstone Builders NY LLC, has commenced a third-party - 3 - 3 of 13 FILED: KINGS COUNTY CLERK 07/21/2022 03:26 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 07/21/2022 action against NY Builder pursuant to claims for contractual and common-law indemnification and contribution and breach of contract. MATERIALS REVIEWED 9. My opinions in this Affidavit are based on my knowledge and experience in the construction industry as a practicing safety professional and my review of the following documents and materials: " Copies of pleadings, Summons and Complaint, Verified Answers, including Third-Party Summons and Complaint and Answer to Third-Party Complaint " Plaintiff's Judgment motion and exhibits of Opposition of Summary May 7, 2020, Cornerstone Builders and exhibits, Opposition of NY Builders and exhibits " NY Builders cross-motion for summary judgment and exhibits " Bills of Particular " Deposition of Plaintiff, Robert Zaborski, dated March 29, April testimony 2019, 4, 2019 and May 13, 2019 " Deposition of Cornerstone dated June 14, 2019 testimony " Deposition testimony of NY Builder dated July 11, 2019 " Two photographs marked at plaintiff's Deposition 6-14-19 (2) " Plaintiff s motion to renew and exhibits, Affidavit of Affidavit including Plaintiff, of Miroslaw Sztark and Affidavit Dr. James Pugh P.E. -- 4 - 4 of 13 FILED: KINGS COUNTY CLERK 07/21/2022 03:26 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 07/21/2022 FACTUAL BACKGROUND 10. Plaintiff's Bill of Particulars alleges that on July 18, 2016, plaintiff was struck by a stair clamp while constructing a staircase at the premises, 163 Middleton Street, Brooklyn, New York, resulting in personal injuries. 11. Plaintiff further alleges that defendant violated §§200, 240(1) and 241(6) of the Labor Law of the State of New York and common-law negligence principles, as well as, several provisions of Rule 23 of the Industrial Code of the State of New York, including 12 NYCRR §§23-1.7, 23-1.8, 23-1.18, 23-1.30, 23-1.32, 23-1.33 and 23-2.1. 12. Plaintiff was hired by New York Builders in approximately January 2015 (approximately 1½ years before the alleged accident). (Zaborski, p. 25.) 13. On July 18, 2016, plaintiff was at the premises, 163 Middleton Street, Brooklyn, New York, performing work on behalf of New York Builders. (Zaborski, p. 28.) Builders' 14. Plaintiff was performing his work along with three other New York employees: Wilson (plaintiff's foreman), Carlos and Merek (aka Miroslaw Sztark). (Zaborski, p. 54, 69, 183.). 15. The men were constructing a spiral staircase from the second to the third floor of the subject which consisted of 20-22 steps. p. 111- premises, approximately (Zaborski, 65-67, 112.) 16. 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. (Zaborski, p. 184-185.) The components would then be screwed together and the clamps removed for use on the next set of steps. (Zaborski, p. 188, 191, 195.) - 5 - 5 of 13 FILED: KINGS COUNTY CLERK 07/21/2022 03:26 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 07/21/2022 17. Plaintiff's duties were to hand Wilson tools, including clamps, hold the steps in place and install screws. (Zaborski, p. 68.) Plaintiff would unscrew/loosen the clamps before handing them up to Wilson to install on the staircase. (Zaborski, p. 187.) The clamps were installed underneath the staircase to support the steps. (Zaborski, p. 93-94, 96.) 18. Prior to the accident, plaintiff and his co-workers had installed and removed clamps at least 5-6 times, without incident. (Zaborski, p. 193.) The staircase was 90% complete prior to the accident. (Zaborski, p. 112.) 19. A clamp had been moved to a new position from a preceding step five minutes before the accident. (Zaborski, p. 202, 208.) 20. At the time of the accident, plaintiff 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. (Zaborski, p. 200-201, 224-226.) Wilson was installing screws on the staircase to tighten the staircase at the time of the accident. (Zaborski, p. 119.) 21. The accident occurred when one of the clamps fell and struck plaintiff. (Zaborski, p. 120-121.) The clamp fell approximately one and one-half meters from the staircase. (Zaborski, p. 199.) 22. Plaintiff was standing underneath the staircase, approximately 2 ½ feet away from Wilson and the ladder. (Zaborski, p. 81-82, 118, 199.) Wilson was also underneath the staircase. (Zaborski, p. 199-200.) 23. Plaintiff had his back to Wilson at the time of the accident. (Zaborski, p. 121.) 24. At no time prior to the accident did plaintiff observe any clamps moving or shaking. Plaintiff did not make any complaints to anyone regarding loose, moving or shaking clamps prior to the accident. (Zaborski, p. 210. - 6 - 6 of 13 FILED: KINGS COUNTY CLERK 07/21/2022 03:26 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 07/21/2022 25. Plaintiff does not know how the accident occurred. (Zaborski, p. 127.) Plaintiff does not know why the clamp felland does not know whether itwas loose. (Zaborski, p. 211.) 26. At no time prior to the accident during construction of spiral staircases was netting used. Plaintiff did not make any complaints regarding a lack of netting to perform his work. (Zaborski, p. 129, 180. 27. Plaintiff was not wearing a hard hat at the time of the accident and denied ever owning a hard hat. (Zaborski, p. 176.) He did not know whether it was safe or not to perform his work without a hard hat. (Zaborski, p. 178.) Plaintiff did not make any complaints to anyone regarding the lack of a hard hat. (Zaborski, p. 179.) 28. A photograph of the exterior of the premises was marked at plaintiff's deposition "DANGER- Area" on June 14, 2019 as Plaintiff's 4, which depicts a Hard Hat sign on the chain link fence surrounding the project-front side. (Photograph annexed hereto as Exhibit A) 29. Adam Baran is the Project Manager for third-party defendant, New York Builders Builders' (plaintiff's employer). Mr. Baran testified that all New York employees are given personal protective equipment upon their hire with New York Builders, including a hard hat, gloves and face mask. (Baran, p. 70.) guideline" 30. Mr. Baran maintained that itis a "standard that workers wear hard hats while performing work. (Baran, p. 72, 80.) Prior to the subject accident, the use of hard hats Builders' was discussed at safety meetings with New York employees. Mr. Baran recalled telling plaintiff to wear a hard hat during installations, approximately three to four months prior to the accident. (Baran, p. 75.) 31. New York Builder has written safety procedures, which consist of a safety Builders' booklet with guidelines that is posted in the locker room of the New York shop. These - 7 - 7 of 13 FILED: KINGS COUNTY CLERK 07/21/2022 03:26 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 07/21/2022 guidelines have been hanging on the wall for approximately eight to ten years. In addition, there Builders' is an OSHA poster on the wall in the locker room of the New York shop, which also listsvarious safety regulations. (Baran, p. 75-77.) 32. Mr. Baran observed plaintiff, Wilson and Carlos all wearing hard hats during the prior construction of another staircase approximately 1-2 weeks before plaintiff's accident. (Baran, p. 82-83.) 33. Mr. Baran stated 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 Builders' the staircase for New York employees to perform their work. (Baran, p. 88-89.) If netting was installed on the underside of the staircase, New York Builders could not access the relevant parts to make the necessary adjustments. (Baran, p. 88-89, 102.) 34. Mr. Baran did not witness the plaintiff's accident, but was informed by Wilson out." that they were adjusting the staircase and that he told the plaintiff to "watch (Baran, p. 99.) However, the plaintiff was not paying attention and the clamp fell, striking him in the head. out." (Baran, p. 108.) Plaintiff did not respond to Wilson's direction to "watch (Baran, p. 101.) 35. Mr. Baran testified that it is standard protocol that workers be aware that when a staircase is being adjusted that workers step out of the way. (Baran, p. 101.) 36. The subject clamp which struck the plaintiff was located approximately two feet above the plaintiffs head and was reachable by both plaintiff and Carlos. (Baran, p. 104.) 37. Mr. Baran was told by Wilson that the plaintiff was not facing the staircase at the time of the accident and that his back was facing the underside of the staircase. (Baran, p. 133.) - 8 - 8 of 13 FILED: KINGS COUNTY CLERK 07/21/2022 03:26 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 07/21/2022 38. Mr. Baran did not receive any violations or citations from OSHA or the Department of Buildings and was not contacted by either agency regarding this occurrence. (Baran, p. 129.) 39. Joel Banda testified on behalf of the general contractor, Cornerstone Builders NY LLC, as superintendent of the project. Cornerstone had approximately two laborers working at the site on a daily basis that performed cleaning, housekeeping and acceptance of deliveries. (Banda, p. 32-33.) 40. At the time of the alleged accident, Mr. Banda would visit the premises approximately two times per day, including once in the morning and once in the late afternoon, to ensure that the job was being done per specifications. (Banda, p. 36, 60.) Mr. Banda was not present at the time of the accident. 41. Mr. Banda stated that the use of hard hats was required at the premises. (Banda, p. 53.) If Mr. Banda observed any workers not wearing hard hats in the premises, they would be asked to obtain a hard hat or leave the premises. (Banda, p. 62-63.) LABOR LAW §240(1) IS NOT APPLICABLE TO THIS CASE 42. Labor Law §240(1) states as follows: "Allcontractorsandownersandtheiragentsexceptownersofone and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect or cause to be furnished or erected for the performance of such labor; scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed placed and operated as to " give proper protection to a person so employed - 9 - 9 of 13 FILED: KINGS COUNTY CLERK 07/21/2022 03:26 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 07/21/2022 43. There is no evidence that the subject stair clamp fell because of the absence or inadequacy of a safety device of the kind enumerated in the statute. The safety devices enumerated in Labor Law §240(1) are "scaffolding, hoists, stays, ladders, slings, hangers, blocks, ropes." pulleys, braces, irons, [and] Labor Law §240(1). However, there is no evidence here that any such devices were absent, inadequate or necessary for the performance of plaintiff's work. Neither plaintiff nor any defendant testified that any such devices were required to perform plaintiff's work. 44. The project manager for plaintiff's employer, Adam Baran, of New York Builders testified that none of the devices enumerated in the statute were required to be used while erecting a spiral staircase. Mr. Baran maintained that neither netting, nor any other protective equipment, may be used beneath the staircase to avoid falling objects because access is needed to Builders' the underside of the staircase for New York employees to perform their work. (Baran, p. 88-89.) If netting was installed on the underside of the staircase, New York Builders could not access the relevant parts to make the necessary adjustments. (Baran, p. 88-89, 102.) 45. Plaintiff also testified 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. (Zaborski, p. 129, 180.) Plaintiff 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. (Zaborski, p. 68.) defendants' 46. Plaintiff's expert, James Pugh, Ph.D., P.E., opines that failure to properly secure the stair clamp represented a risk of a falling object from an elevated height. Specifically, Mr. Pugh references The American National Standards Institute (ANSI) and the - 10 - 10 of 13 FILED: KINGS COUNTY CLERK 07/21/2022 03:26 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 07/21/2022 International Safety Equipment Association (ISEA) as purportedly requiring defendants to secure tools at heights using a tethering system. However, the ANSI standard cited by Mr. Pugh was not in effect at the time of the subject loss (July 18, 2016). Furthermore, both standards (ANSI or ISEA) are voluntary standards and there is no current regulation requiring tethering hand tools used overhead. Adding a tether as a safety device is not required by any code or the Labor Law. 47. None of the devices enumerated in the statute are required to be used while erecting a spiral staircase. The testimony of Mr. Baran of NY Builder states that neither netting, tethering, nor any other protective equipment, may be used beneath the staircase to avoid falling Builders' objects because access is needed to the underside of the staircase for New York employees to perform their work. 48. Indeed, while keeping items from falling is always the objective, many tasks require the free movement of the tool/device such as the bar clamp. The bar 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 level and position requires agility to move the items by maneuvering the clamp, rendering a tethering system, netting or other safety device beneath the staircase impracticable. By itsnature and area of use, there is no place to properly tether the device and no room for a safety net which would encumber the work site and hinder the job. 49. PPE is a requirement whenever there is an overhead exposure. However, a hard hat is not a safety device of the kind enumerated in the statute, which are "scaffolding, hoists, ropes." stays, ladders, slings, hangers, blocks, pulleys, braces, irons, [and] Labor Law §240(1). Nevertheless, Mr. Baran of NY Builder (plaintiff's employer) testified that all New York Builders' employees are given personal protective equipment upon their hire with New York Builders, including a hard hat, gloves and face mask. (Baran, p. 70.) Mr. Baran maintained that - 11 - 11 of 13 FILED: KINGS COUNTY CLERK 07/21/2022 03:26 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 07/21/2022 guideline" itis a "standard that workers wear hard hats while performing work. (Baran, p. 72, 80.) Prior to the subject accident, the use of hard hats was discussed at safety meetings with Builders' New York employees. Mr. Baran recalled telling plaintiff to wear a hard hat during installations, approximately three to four months prior to the accident. (Baran, p. 75.) Mr. Baran observed plaintiff, Wilson and Carlos all wearing hard hats during the prior construction of another staircase approximately 1-2 weeks before plaintiff's accident. (Baran, p. 82-83.) 50. Mr. Banda of Cornerstone Builders stated that the use of hard hats was required at the premises. (Banda, p. 53.) If Mr. Banda observed any workers not wearing hard hats in the premises, they would be asked to obtain a hard hat or leave the premises. (Banda, p. 62-63.) 51. Also, a photograph marked at plaintiff's deposition on June 14, 2019 depicts a "DANGER- Area" Hard Hat sign clearly displayed on the chain link fence surrounding the project-front. (see Exhibit A herein.) 52. Any argument that the stair clamp was not properly secured, and should not have loosened, is factually incorrect and contrary to the deposition testimony of the parties and staircase construction standards and protocols. The project manager for New York Builders, Mr. Baran, testified that when the steps are adjusted and put together, a stair clamp loosens when you install the step or riser. (Baran, p. 105.) The staircase was being adjusted at the time of the out." accident and plaintiff's foreman, Wilson, told plaintiff to "watch (Baran, p. 99, 101, 108.) Mr. Baran testified that it is standard protocol that workers be aware that when a staircase is being adjusted and step out of the way. (Baran, p. 101.) There is no evidence that the stair clamp was not properly secured. 53. The evidence also indicates that the subject stair clamp was always within plaintiff's reach, approximately 2 feet above plaintiff's head, thus falling outside the scope of - 12 - 12 of 13 FILED: KINGS COUNTY CLERK 07/21/2022 03:26 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 07/21/2022 6'1" Labor Law §240(1). Plaintiff testified that he stands in height and his duties were to hand Wilson the stair clamps, hold the steps in place and install screws. (Zaborski, p. 68.) Although plaintiff approximated that the clamp fell a distance of 1 ½ meters, Mr. Baran of New York Builders testified that the clamp was within touching distance from plaintiff, approximately 2 feet above plaintiff's head, when itfell. (Baran, p. 104.) 54. Based on the foregoing, it is my opinion within a reasonable degree of Certified Professional Safety certainty that Labor Law §240(1) is not applicable to this case. John . Coniglio, CSP, C SC Sworn to before me this day of , 202 Public ELIZABETH A. BERMINGHAM PUBLIC-STATE OF NEW YORK NOTARY No, OlBE6212953 gd/-- Qualified In Erie County Commlasion ExpiresOctober 26, My - 13 - 13 of 13