Preview
(FILED: KINGS COUNTY CLERK 0772172022 03:26 PM INDEX NO. 504273/2017
NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 07/21/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
wee ee eect e eee ee eee eee e nee ee eee eee nee ee eee eee eeeeeeneeeeeeeeeeeee, X
ROBERT ZABORSKI, COUNTERSTATEMENT
OF FACTS
Plaintiff,
Index No. 504273/2017
- 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.
Third-party defendant, New Y ork Builder of Stairs, Inc., pursuant to 22 NY CRR §202.8-
g, contends that there are genuine issues to be tried with respect to the following material facts:
1. On July 18, 2016, defendant, MB Lorimer, owned the premises located at 163
Middleton Street, Brooklyn, New Y ork. Exhibit I, p. 15-16.
RESPONSE: Admit.
2. Prior to July 18, 2016, MB Lorimer hired Comerstone to serve as the general
contractor for a construction project at the premises located at 163 Middleton Street, Brooklyn,
New York. This job was for the construction of a new residential building at the premises.
Exhibit I, p. 14-16.
RESPONSE: Admit.
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3. Prior to July 18, 2016, Comerstone hired NY Builder to perform work at the
subject construction site. Specifically, NY Builder was hired to construct interior wooden stairs
in the building which was under construction. Exhibit I, p. 22.
RESPONSE: Admit.
4. On July 18, 2016, plaintiff was employed by NY Builder performing work at the
subject site. This was plaintiff's first day at this job site. Exhibit H, p. 28-29, 43; Exhibit K.
RESPONSE: Admit.
5. Plaintiff was working with two co-workers, Wilson and Carolos. Wilson was a
master assembler of stairs. Plaintiff was his helper. Exhibit H, p. 44, 55, 119; Exhibit K.
RESPONSE: Deny, except admit that plaintiff was performing his work along
with three (3) other New York Builders’ employees- Wilson (plaintiff's foreman), Carlos and
Merek (aka Miroslaw Sztark). (NYSCEF Doc. No. 102, p. 54, 69, 183.)
6. They were working to construct a curved/spiral staircase from the second to the
third floor of the building. Exhibit H, p. 111-112; Exhibit K.
RESPONSE: Admit.
7. To perform this work, plaintiff and Carlos were standing on a plywood platform
that was built to cover the opening for the stairs. Exhibit H, p. 110; Exhibit K.
RESPONSE: Admit.
8. To build the stairs, the workers would first install stringers, which would hold the
stairs in place. Exhibit H, p. 64-65; Exhibit K.
RESPONSE: Admit.
9. Once the stringers were installed, they would go about installing the risers and
steps one by one from the bottom of the stairs working their way up. Once a riser and step were
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placed, the workers would place stair clamps on the sides of the stringers that would hold the
elements together. Once all the elements were held together, they would be screwed into each
other. Once secured by screws, the stair clamps would be removed, and the workers would start
installing the next step. Exhibit H, p. 64-65, 110-111, 117; Exhibit K.
RESPONSE: Deny, except admit that 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.)
10. The stair clamps consisted of a metal pipe and two adjustable clamps, one on each
end. Exhibit H, p. 120-121; Exhibit K.
RESPONSE: Admit.
11. At the time of plaintiff's accident, Wilson was standing on a ladder so that he
could place steps and risers for installation. About twelve steps had already been installed.
Plaintiff was standing below Wilson on the platform in front of the ladder. Exhibit H, p. 67-
68,118; Exhibit K.
RESPONSE: Deny, except admit that, prior to the accident, plaintiff and his co-
workers had installed and removed clamps at least five-six times, without incident. (NY SCEF
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.)
12. Plaintiff would hand material and tools to Wilson, who would place and install
them. Exhibit F, p. 69, 96; Exhibit J.
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RESPONSE: Deny, except admit that plaintiff's 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. (NYSCEF 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.)
13. Immediately before his accident, Wilson asked plaintiff to hand him a drill. As
plaintiff bent down to grab a drill which was on the platform, one of the stair clamps, the “entire
assembly,” meaning a section of pipe and two clamps on each side, fell approximately six feet
and struck plaintiff on the head. Exhibit H, p. 120-121, 224-225; Exhibit K.
RESPONSE: Deny, except admit that, 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. (NY SCEF Doc. No. 102, p. 200-201,
224-226.) Wilson was installing screws on the staircase to tighten the staircase at the time of the
accident. (NY SCEF Doc. No. 102, p. 119.) The accident occurred when one of the clamps fell
and struck plaintiff. (NY SCEF Doc. No. 102, p. 120-121.)
14. Plaintiff lost consciousness and was bleeding from his head. Exhibit H, p. 122,
128; Exhibit K.
RESPONSE: Deny, except admit that plaintiff testified he lost consciousness and
was bleeding from his head.
15. Plaintiff was never provided with a hard hat for his work at the subject premises.
Exhibit H, p. 129; Exhibit K.
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RESPONSE: Deny, except admit that all New York Builders' employees are
given personal protective equipment upon their hire with New Y ork Builders, including a hard
hat, gloves and face mask. (NY SCEF Doc. No. 104, p. 70.)
16. Plaintiff testified that he was never instructed to wear a hard hat at this jobsite.
Plaintiff did not observe any workers wearing hard hats at this jobsite. Exhibit H, p. 129, 172;
Exhibit K.
RESPONSE: Deny, except admit that it is a "standard guideline" that workers
wear hard hats while performing work. (NY SCEF Doc. No. 104, p. 72, 80.) Prior to the subject
accident, the use of hard hats was discussed at safety meetings with New York Builders’
employees. Plaintiff was told to wear a hard hat during installations, approximately three to four
months prior to the accident. (NY SCEF Doc. No. 104, p. 75.) Mr. Baran observed plaintiff,
Wilson, and Carlos all wearing hard hats during the prior construction of another staircase
approximately one-two weeks before plaintiff's accident. (NYSCEF Doc. No. 104, p. 82-83.)
Mr. Banda of Cornerstone Builders 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 be asked to obtain a hard hat or leave the premises. (NY SCEF Doc.
No. 103, p. 62-63.) Also, a photograph 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, Coniglio A ffidavit.)
17. Adam Baran, plaintiff's boss, testified that Joel Banda from Cornerstone was
responsible for ensuring the workers performed their work in a safe manner. However,
Mr. Baran did not know how long Mr. Banda was at the site on a daily basis. Exhibit J, p. 72-74.
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RESPONSE: Deny, except admit that Mr. Banda would visit the premises
approximately two times per day, including once in the moming and once in the late afternoon,
to ensure that the job was being done per specifications. (NY SCEF Doc. No. 103, p. 36, 60.)
18. On the other hand, Mr. Banda testified that the workers were responsible for
providing their own personal protective equipment, including hard hats. He would visit the site
twice a day, at 9:00 am. and again at 5:00 p.m. Exhibit I. p. 36, 53-54.
RESPONSE: Deny, except admit that, 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.
(NY SCEF Doc. No. 103, p. 36, 60.)
19. Plaintiff and his co-workers were never provided with any safety netting to set up
under the stairs while working. Exhibit H, p. 129.
RESPONSE: Deny; except admit that 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. (NYSCEF Doc. No. 102, 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. (NYSCEF Doc. No. 102, p. 68.) The testimony of the
project manager for plaintiff's employer, Adam Baran, of New York Builders indicates 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 Y ork Builders'
employees to perform their work. (NYSCEF 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.)
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Third-party defendant, New York Builder of Stairs, Inc., pursuant to 22 NYCRR
§202.8-g, contends that there is no genuine issue to be tried with respect to the following
material facts:
1. 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.)
2. 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.)
3. 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.)
4. 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.)
5. Prior to the accident, plaintiff and his co-workers had installed and removed
clamps at least five-six times, without incident. (NY SCEF 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.)
6. 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
-7-
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NYSCEF DOC. NO. 113
accident occurred. (NYSCEF Doc. No. 102,
screws on the staircase to tighten the staircase at
102, p. 119.)
7. The accident occurred when one o:
Doc. No. 102, p. 120-121.) The clamp fell approxima'
(NY SCEF Doc. No. 102, p. 199.)
Wilson and the ladder.
underneath the staircase. (
at the time of the accident.
9. 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.)
10. At no time
shaking. Plaintiff did not
clamps prior to the accident. (NY S'
11. Plaintiff does not
p. 127.) Plaintiff does not know
(NY SCEF Doc. No. 102, p. 211.)
12. At no time
(NY SCEF Doc. No. 102, p. 121.)
. 200-201, 224-226.)
the time of the accident. (NY SCEF Doc. No.
INDEX NO. 504273/2017
RECEIVED NYSCEF: 07/21/2022
Wilson was installing
the clamps fell and struck plaintiff. (NY SCEF
ely 1% meters from the staircase.
8. Plaintiff was standing underneath the staircase, approximately 2 / feet away from
(NYSCEF Doc. No. 102, p. 81-
NY SCEF Doc. No. 102, p. 199-200.) P.
18, 199.) Wilson was also
aintiff had his back to Wilson
to assist plaintiff. (NY SCEF
when it occurred. (NY SCEF
prior to the accident did plaintiff observe any clamps moving or
make any complaints to anyone regard
CEF Doc. No. 102, p. 210.)
now how the accident occurred.
ling loose, moving or shaking
(NY SCEF Doc. No. 102,
why the clamp fell and does not know whether it was loose.
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. (NY SCEF Doc. No.
102, p. 129, 180.)
13. Plaintiff was not wearing a hard hat at the time of the accident and denied ever
owning a hard hat. (NY SCEF Doc. No. 102, p. 176.) He did “not know” whether it was safe or
not to perform his work without a hard hat. (NYSCEF Doc. No. 102, p. 178.) Plaintiff did not
make any complaints to anyone regarding the lack of a hard hat. (NYSCEF Doc. No. 102,
p.179,)
-8-
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NYSCEF DOC. NO. 113
14,
(plaintiffs employer). Mr. Baran testified that all New Yor
INDEX NO. 504273/2017
RECEIVED NYSCEF: 07/21/2022
Adam Baran is the Project Manager for third-party defendant, New Y ork Builders
Builders' employees are given
personal protective equipment upon their hire with New York Builders, including a hard hat,
gloves and face mask. (NY SCEF Doc. No. 104, p. 70.)
15. Mr. Baran maintain
while performing work. (NY SCE
F Doc. No. 104, p. 72, 80.)
use of hard hats was
Mr. Baran recalled telling plaintifi
four months prior to the accident.
16.
safety boo:
In addition, New Y
let with guidelines that
ed that it is a "standard guide
iscussed at safety meetings with New York Builders' employee:
to wear a hard hat during installations,
(NY SCEF Doc. No. 104, p. 75.)
ork Builders has written safety proced
is posted in the locker room of the New Y ork Builders' shop.
These guidelines have been hanging on the wall for approximately
addition, there is an OSH
‘A poster on
le wall in the locker room of
shop, which also lis‘
17. Mr.
if ano
104,
prior construction o
(NY SCEF
18.
beneath the
er SI
. 82-
Doc. No.
Mr. Baran maint
be used staircase to av
ts various safety regul
Baran observed plaint
aircase aj
83.
ained that
ine" that workers wear hard hat
Prior to the subject accident,
eight to ten years.
lations. (NY SCEF Doc. No. 104, p. 75-77.)
iff, Wilson, and Carlos all wearing
"i
approximately three to
lures, which consist of a
n
he New York Builders'
ard hats during
proximately one-two weeks be!
)
oid fal
neither netting nor any other protec’
ing objects because access is neede
ore plaintiffs acci
tive equipment may
le of
104,
to the undersi:
No.
the staircase for New Y ork Builders' employees to perform their work. (NY SCEF Doc. No.
p. 88-89.) If netting was instal
access the relevant parts to mal
102.)
19.
above
104, p. 104.)
ed on the underside of the staircase, New Y orl
e the necessary adjustments. (NY SCEF Doc. No. 104,
The subject clamp which struck the plaintiff was located approximately
9 of 11
Builders coul
. 88-89,
not
two feet
e plaintiff's head and was reachable by both plaintiff and Carlos. (NY SCEF Doc. No.(FILED: KINGS COUNTY CLERK 0772172022 03:26 PM INDEX NO. 504273/2017
NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 07/21/2022
20. Joel Banda testified on behalf of the general contractor, Comerstone Builders NY
LLC, as superintendent of the project. 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 be asked to obtain a hard hat or leave the premises.
(NY SCEF Doc. No. 103, p. 62-63.)
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
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
-10-
10 of 11(FILED: KINGS COUNTY CLERK 0772172022 03:26 PM INDEX NO. 504273/2017
NYSCEF DOC. NO. 113 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.
COUNTERSTATEMENT OF FACTS
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 NY.C.R.R. § 130-1. Ja
Talene D. White hereby certifies that, pursuant to 22 N.Y.C.R.R. § 130-1.1a, the foregoing COUNTERSTATEMENT OF
FACTS 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.
PALLINGER 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
2744115
11 of 11
Preview
(FILED: KINGS COUNTY CLERK 0772172022 03:26 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 07/21/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS wee ee eect e eee ee eee eee e nee ee eee eee nee ee eee eee eeeeeeneeeeeeeeeeeee, X ROBERT ZABORSKI, COUNTERSTATEMENT OF FACTS Plaintiff, Index No. 504273/2017 - 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. Third-party defendant, New Y ork Builder of Stairs, Inc., pursuant to 22 NY CRR §202.8- g, contends that there are genuine issues to be tried with respect to the following material facts: 1. On July 18, 2016, defendant, MB Lorimer, owned the premises located at 163 Middleton Street, Brooklyn, New Y ork. Exhibit I, p. 15-16. RESPONSE: Admit. 2. Prior to July 18, 2016, MB Lorimer hired Comerstone to serve as the general contractor for a construction project at the premises located at 163 Middleton Street, Brooklyn, New York. This job was for the construction of a new residential building at the premises. Exhibit I, p. 14-16. RESPONSE: Admit. 1 of 11(FILED: KINGS COUNTY CLERK 0772172022 03:26 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 07/21/2022 3. Prior to July 18, 2016, Comerstone hired NY Builder to perform work at the subject construction site. Specifically, NY Builder was hired to construct interior wooden stairs in the building which was under construction. Exhibit I, p. 22. RESPONSE: Admit. 4. On July 18, 2016, plaintiff was employed by NY Builder performing work at the subject site. This was plaintiff's first day at this job site. Exhibit H, p. 28-29, 43; Exhibit K. RESPONSE: Admit. 5. Plaintiff was working with two co-workers, Wilson and Carolos. Wilson was a master assembler of stairs. Plaintiff was his helper. Exhibit H, p. 44, 55, 119; Exhibit K. RESPONSE: Deny, except admit that plaintiff was performing his work along with three (3) other New York Builders’ employees- Wilson (plaintiff's foreman), Carlos and Merek (aka Miroslaw Sztark). (NYSCEF Doc. No. 102, p. 54, 69, 183.) 6. They were working to construct a curved/spiral staircase from the second to the third floor of the building. Exhibit H, p. 111-112; Exhibit K. RESPONSE: Admit. 7. To perform this work, plaintiff and Carlos were standing on a plywood platform that was built to cover the opening for the stairs. Exhibit H, p. 110; Exhibit K. RESPONSE: Admit. 8. To build the stairs, the workers would first install stringers, which would hold the stairs in place. Exhibit H, p. 64-65; Exhibit K. RESPONSE: Admit. 9. Once the stringers were installed, they would go about installing the risers and steps one by one from the bottom of the stairs working their way up. Once a riser and step were 2 of 11(FILED: KINGS COUNTY CLERK 0772172022 03:26 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 07/21/2022 placed, the workers would place stair clamps on the sides of the stringers that would hold the elements together. Once all the elements were held together, they would be screwed into each other. Once secured by screws, the stair clamps would be removed, and the workers would start installing the next step. Exhibit H, p. 64-65, 110-111, 117; Exhibit K. RESPONSE: Deny, except admit that 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.) 10. The stair clamps consisted of a metal pipe and two adjustable clamps, one on each end. Exhibit H, p. 120-121; Exhibit K. RESPONSE: Admit. 11. At the time of plaintiff's accident, Wilson was standing on a ladder so that he could place steps and risers for installation. About twelve steps had already been installed. Plaintiff was standing below Wilson on the platform in front of the ladder. Exhibit H, p. 67- 68,118; Exhibit K. RESPONSE: Deny, except admit that, prior to the accident, plaintiff and his co- workers had installed and removed clamps at least five-six times, without incident. (NY SCEF 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.) 12. Plaintiff would hand material and tools to Wilson, who would place and install them. Exhibit F, p. 69, 96; Exhibit J. 3 of 11(FILED: KINGS COUNTY CLERK 0772172022 03:26 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 07/21/2022 RESPONSE: Deny, except admit that plaintiff's 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. (NYSCEF 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.) 13. Immediately before his accident, Wilson asked plaintiff to hand him a drill. As plaintiff bent down to grab a drill which was on the platform, one of the stair clamps, the “entire assembly,” meaning a section of pipe and two clamps on each side, fell approximately six feet and struck plaintiff on the head. Exhibit H, p. 120-121, 224-225; Exhibit K. RESPONSE: Deny, except admit that, 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. (NY SCEF Doc. No. 102, p. 200-201, 224-226.) Wilson was installing screws on the staircase to tighten the staircase at the time of the accident. (NY SCEF Doc. No. 102, p. 119.) The accident occurred when one of the clamps fell and struck plaintiff. (NY SCEF Doc. No. 102, p. 120-121.) 14. Plaintiff lost consciousness and was bleeding from his head. Exhibit H, p. 122, 128; Exhibit K. RESPONSE: Deny, except admit that plaintiff testified he lost consciousness and was bleeding from his head. 15. Plaintiff was never provided with a hard hat for his work at the subject premises. Exhibit H, p. 129; Exhibit K. 4 of 11(FILED: KINGS COUNTY CLERK 0772172022 03:26 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 07/21/2022 RESPONSE: Deny, except admit that all New York Builders' employees are given personal protective equipment upon their hire with New Y ork Builders, including a hard hat, gloves and face mask. (NY SCEF Doc. No. 104, p. 70.) 16. Plaintiff testified that he was never instructed to wear a hard hat at this jobsite. Plaintiff did not observe any workers wearing hard hats at this jobsite. Exhibit H, p. 129, 172; Exhibit K. RESPONSE: Deny, except admit that it is a "standard guideline" that workers wear hard hats while performing work. (NY SCEF Doc. No. 104, p. 72, 80.) Prior to the subject accident, the use of hard hats was discussed at safety meetings with New York Builders’ employees. Plaintiff was told to wear a hard hat during installations, approximately three to four months prior to the accident. (NY SCEF Doc. No. 104, p. 75.) Mr. Baran observed plaintiff, Wilson, and Carlos all wearing hard hats during the prior construction of another staircase approximately one-two weeks before plaintiff's accident. (NYSCEF Doc. No. 104, p. 82-83.) Mr. Banda of Cornerstone Builders 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 be asked to obtain a hard hat or leave the premises. (NY SCEF Doc. No. 103, p. 62-63.) Also, a photograph 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, Coniglio A ffidavit.) 17. Adam Baran, plaintiff's boss, testified that Joel Banda from Cornerstone was responsible for ensuring the workers performed their work in a safe manner. However, Mr. Baran did not know how long Mr. Banda was at the site on a daily basis. Exhibit J, p. 72-74. 5 of 11(FILED: KINGS COUNTY CLERK 0772172022 03:26 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 07/21/2022 RESPONSE: Deny, except admit that Mr. Banda would visit the premises approximately two times per day, including once in the moming and once in the late afternoon, to ensure that the job was being done per specifications. (NY SCEF Doc. No. 103, p. 36, 60.) 18. On the other hand, Mr. Banda testified that the workers were responsible for providing their own personal protective equipment, including hard hats. He would visit the site twice a day, at 9:00 am. and again at 5:00 p.m. Exhibit I. p. 36, 53-54. RESPONSE: Deny, except admit that, 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. (NY SCEF Doc. No. 103, p. 36, 60.) 19. Plaintiff and his co-workers were never provided with any safety netting to set up under the stairs while working. Exhibit H, p. 129. RESPONSE: Deny; except admit that 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. (NYSCEF Doc. No. 102, 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. (NYSCEF Doc. No. 102, p. 68.) The testimony of the project manager for plaintiff's employer, Adam Baran, of New York Builders indicates 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 Y ork Builders' employees to perform their work. (NYSCEF 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.) 6 of 11(FILED: KINGS COUNTY CLERK 0772172022 03:26 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 07/21/2022 Third-party defendant, New York Builder of Stairs, Inc., pursuant to 22 NYCRR §202.8-g, contends that there is no genuine issue to be tried with respect to the following material facts: 1. 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.) 2. 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.) 3. 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.) 4. 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.) 5. Prior to the accident, plaintiff and his co-workers had installed and removed clamps at least five-six times, without incident. (NY SCEF 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.) 6. 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 -7- 7 of 11(FILED: KINGS COUNTY CLERK 0772172022 03:26 PM NYSCEF DOC. NO. 113 accident occurred. (NYSCEF Doc. No. 102, screws on the staircase to tighten the staircase at 102, p. 119.) 7. The accident occurred when one o: Doc. No. 102, p. 120-121.) The clamp fell approxima' (NY SCEF Doc. No. 102, p. 199.) Wilson and the ladder. underneath the staircase. ( at the time of the accident. 9. 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.) 10. At no time shaking. Plaintiff did not clamps prior to the accident. (NY S' 11. Plaintiff does not p. 127.) Plaintiff does not know (NY SCEF Doc. No. 102, p. 211.) 12. At no time (NY SCEF Doc. No. 102, p. 121.) . 200-201, 224-226.) the time of the accident. (NY SCEF Doc. No. INDEX NO. 504273/2017 RECEIVED NYSCEF: 07/21/2022 Wilson was installing the clamps fell and struck plaintiff. (NY SCEF ely 1% meters from the staircase. 8. Plaintiff was standing underneath the staircase, approximately 2 / feet away from (NYSCEF Doc. No. 102, p. 81- NY SCEF Doc. No. 102, p. 199-200.) P. 18, 199.) Wilson was also aintiff had his back to Wilson to assist plaintiff. (NY SCEF when it occurred. (NY SCEF prior to the accident did plaintiff observe any clamps moving or make any complaints to anyone regard CEF Doc. No. 102, p. 210.) now how the accident occurred. ling loose, moving or shaking (NY SCEF Doc. No. 102, why the clamp fell and does not know whether it was loose. 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. (NY SCEF Doc. No. 102, p. 129, 180.) 13. Plaintiff was not wearing a hard hat at the time of the accident and denied ever owning a hard hat. (NY SCEF Doc. No. 102, p. 176.) He did “not know” whether it was safe or not to perform his work without a hard hat. (NYSCEF Doc. No. 102, p. 178.) Plaintiff did not make any complaints to anyone regarding the lack of a hard hat. (NYSCEF Doc. No. 102, p.179,) -8- 8 of 11(FILED: KINGS COUNTY CLERK 0772172022 03:26 PM NYSCEF DOC. NO. 113 14, (plaintiffs employer). Mr. Baran testified that all New Yor INDEX NO. 504273/2017 RECEIVED NYSCEF: 07/21/2022 Adam Baran is the Project Manager for third-party defendant, New Y ork Builders Builders' employees are given personal protective equipment upon their hire with New York Builders, including a hard hat, gloves and face mask. (NY SCEF Doc. No. 104, p. 70.) 15. Mr. Baran maintain while performing work. (NY SCE F Doc. No. 104, p. 72, 80.) use of hard hats was Mr. Baran recalled telling plaintifi four months prior to the accident. 16. safety boo: In addition, New Y let with guidelines that ed that it is a "standard guide iscussed at safety meetings with New York Builders' employee: to wear a hard hat during installations, (NY SCEF Doc. No. 104, p. 75.) ork Builders has written safety proced is posted in the locker room of the New Y ork Builders' shop. These guidelines have been hanging on the wall for approximately addition, there is an OSH ‘A poster on le wall in the locker room of shop, which also lis‘ 17. Mr. if ano 104, prior construction o (NY SCEF 18. beneath the er SI . 82- Doc. No. Mr. Baran maint be used staircase to av ts various safety regul Baran observed plaint aircase aj 83. ained that ine" that workers wear hard hat Prior to the subject accident, eight to ten years. lations. (NY SCEF Doc. No. 104, p. 75-77.) iff, Wilson, and Carlos all wearing "i approximately three to lures, which consist of a n he New York Builders' ard hats during proximately one-two weeks be! ) oid fal neither netting nor any other protec’ ing objects because access is neede ore plaintiffs acci tive equipment may le of 104, to the undersi: No. the staircase for New Y ork Builders' employees to perform their work. (NY SCEF Doc. No. p. 88-89.) If netting was instal access the relevant parts to mal 102.) 19. above 104, p. 104.) ed on the underside of the staircase, New Y orl e the necessary adjustments. (NY SCEF Doc. No. 104, The subject clamp which struck the plaintiff was located approximately 9 of 11 Builders coul . 88-89, not two feet e plaintiff's head and was reachable by both plaintiff and Carlos. (NY SCEF Doc. No.(FILED: KINGS COUNTY CLERK 0772172022 03:26 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 07/21/2022 20. Joel Banda testified on behalf of the general contractor, Comerstone Builders NY LLC, as superintendent of the project. 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 be asked to obtain a hard hat or leave the premises. (NY SCEF Doc. No. 103, p. 62-63.) 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 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 -10- 10 of 11(FILED: KINGS COUNTY CLERK 0772172022 03:26 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 113 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. COUNTERSTATEMENT OF FACTS 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 NY.C.R.R. § 130-1. Ja Talene D. White hereby certifies that, pursuant to 22 N.Y.C.R.R. § 130-1.1a, the foregoing COUNTERSTATEMENT OF FACTS 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. PALLINGER 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 2744115 11 of 11