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EXHIBIT A
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At an IAS Term, Part 9 of the
Supreme Court of the State of New
York, held in and for the County of
Kings, at the Courthouse, at 360
Adams Street, Brooklyn, New York,
1st
on the day of March, 2021.
P R E S E N T:
HON. DEBRA SILBER,
Justice.
. - _ -- - _ - - - - _ _- _ _ _- -_ _---- - - - - -_ _ - _ - _ X
ROBERT ZABORSKI,
DECISION/ORDER
Plaintiff,
Index No. 504273/17
- against -
Motion Sequence Nos. 3, 4
MB LORIMER LLC and
CORNERSTONE BUILDERS NY LLC,
Defendants.
- - _ _ -- - - - _ _-----------__-----__ _ - - - - _ x
CORNERSTONE BUILDERS NY LLC,
Third-Party Plaintiff,
-against-
NEW YORK BUILDER OF STAIRS,
Third-Party Defendant.
- _ - _ -- - - _ _ _ --____ _ _ _.. _ _ _ _ _ -- - - _ _ -- - _ - X
The following e-filed papers read herein: NYSCEF Doc. Nos.
Notice of Motion/Cross Motion and
Affidavits (Affirmations) Annexed 58-70. 75-76
Opposing Affidavits (Affirmations) 74, 76, 77
Reply Affidavits (Affirmations) 77.. 78.. 76. 79-80
Upon the foregoing papers, plaintiff Robert Zaborski (plaintiff or Mr. Zaborski)
moves (in motion sequence [mot. seq.] three) for an order, pursuant to CPLR 3212, granting
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him partial summary judgment against defendant Cornerstone Builders NY LLC
(Cornerstone) on the issue of liability pursuant to Labor Law § 240 (1). Third-party
defendant New York Builders of Stairs, Inc. (NY Builders or NYBS) cross-moves (in mot.
seq. four) for an order, pursuant to CPLR 3212, granting it summary judgment dismissing
plaintiffs Labor Law §§ 240 (1) and 241 (6) claims.
Background
Mr. Zaborski commenced the instant action by electronically filing a summons and
verified complaint with this court on March 3, 2017. Plaintiff alleges therein that on July
18, 2016, he was in a construction/renovation accident at the premises known as 163
Builders'
Middleton Street in Brooklyn. Specifically, plaintiff (a NY employee) claims that
he was injured while assembling an interior wooden curved/spiral staircase in a residential
building under construction. He maintains that a clamp, used to keep steps and risers in
place, fell and struck him, causing injuries. Cornerstone later interposed an answer and
impleaded NY Builders.
Plaintiff argues that defendants, inter alia, violated Labor Law § 240 (1) and § 241
(6), as well as certain applicable provisions of the Industrial Code (12 NYCRR ch 1, subch A.)
by allowing the clamp to fall. Plaintiff also maintains that the Labor Law and Industrial
Code violations proximately caused his injuries. Plaintiff further asserts that defendants MB
Lorimer LLC (against which a December 7, 2017 default judgment order was issued [see
NYSCEF Doc No. 21]) and Cornerstone were, respectively, the owner of the subject
premises and the general contractor hired by the owner to construct the building. Plaintiff
reasons that defendants are vicariously liable for the Labor Law violations without regard to
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fault or responsibility. Lastly, plaintiff argues that he was on a construction site performing
workl
construction and, as such, was a covered worker, and he seeks damages against
defendants for his injuries.
Discovery ensued, and on February 14, 2020, plaintiff filed a note of issue and
certificate of readiness, with a trial by jury demand (see NYSCEF Doc No. 56), certifying
that discovery is complete and that this matter is ready for trial. The instant summary
judgment motions followed.
PlaintVf's Arguments Supporting His Partial Summary Judgment Motion
Mr. Zaborski, in support of his motion, contends that Cornerstone, being a
"contractor,"
as that term is used in Labor Law § 240 (1) and interpreted by the courts of
this state, is subject to liability, pursuant to Labor Law § 240 (1), for elevation-related
construction accidents without regard to fault or responsibility. He points out that the
"proper"
statute places a non-delegable duty on owners and contractors to provide
protection against elevation-related risks on construction sites.
Plaintiff states that, immediately before the accident, he was standing on a plywood
platform that covered a stairwell opening. He was assisting a coworker who, while standing
on a ladder, was installing steps and risers to complete the stairs from the second to the third
floors of the building under construction. Plaintiff claims that he was standing below the
coworker, in front of the ladder, and was lifting and handing tools and materials to his
coworker.
1 scope of Labor provisions is
Work within the the Law's vicarious liability commonly
"protected"
referenced as activities, tasks or work. Workers covered by the statute are commonly
"protected"
referenced as workers.
3
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Plaintiff alleges that, when he bent down to pick up a drill to hand to his coworker, a
stair clamp (presumably some form of a c clamp) which were used to secure the steps and
risers in place during the construction of the stairs, somehow fell approximately six feet and
struck him on the head. He testified at his EBT that he lost consciousness and woke up in a
pool of blood. Plaintiff argues that an accident involving a falling object at a construction
site implicates Labor Law § 240 (1), and reiterates that the statute places a non-delegable
duty to protect workers from the risk of being struck and injured by a falling object on the
property owners and general contractors (such as defendants herein). Mr. Zaborski claims
that Cornerstone's failure to keep the subject clamp properly secured, and/or the failure to
furnish plaintiff with personal protective equipment to protect him from falling objects (such
as a hard hat) or devices that would prevent a fall (such as a net) constitute violations of
Labor Law § 240 (1).
Plaintiff claims that the facts establish that the Labor Law § 240 (1) violations were
"protected"
the proximate cause of his injuries and that he was a worker performing
tasks"
"protected (see n 1, supra) within the scope of the statute. Lastly, plaintiff maintains
that there is no serious dispute as to whether Cornerstone is a general contractor subject to
absolute vicarious liability pursuant to the statute. For these reasons, Mr. Zaborski
concludes that he has established prima facie entitlement to judgment as a matter of law
against Cornerstone, and, therefore, his partial summary judgment motion, pursuant to
Labor Law 240 (1), on the issue of liability against Cornerstone should be granted.
§
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Cornerstone's Arguments Opposing Plaintiff's Motion
Cornerstone, in opposition to Mr. Zaborski's motion, first argues that plaintiff has
not demonstrated a Labor Law § 240 (1) violation because plaintiff has failed to identify any
relevant safety devices. Cornerstone claims that a plaintiff who alleges the existence of a
Labor Law § 240 (1) violation based on a falling object must demonstrate that the object
required securing for the purposes of the undertaking and that, here, plaintiff has failed to
demonstrate this.
More specifically, Cornerstone argues that Mr. Zaborski must specify what safety
device either failed or was absent in order to support his Labor Law § 240 (1) claim.
Cornerstone notes that, to the extent Mr. Zaborski claims that defendants were required to
install safety nets in the subject stairwell, the NYBS deposition witness testified that it
would have been impossible to install nets in the area where plaintiff was working.
Moreover, Cornerstone adds that the NYBS deposition witness contradicted Mr. Zaborski's
testimony about the availability of hard hats and instructions to wear them. Also,
Cornerstone claims that there is a significant difference between Mr. Zaborski's description
of the fall, in which he says the subject clamp fell six feet, and other deposition witnesses
who stated Mr. Zaborski was working approximately two feet below the clamp.
Cornerstone contends that these are material factual issues, which preclude summary
judgment. Accordingly, Cornerstone concludes that Mr. Zaborski's motion should be
denied.
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Builders'
NY Arguments Supporting Its Summary Judgment
Cross Motion and Opposing Mr. Zaborski's Motion
NY Builders, in opposition to plaintiff's motion, and in support of its motion for
summary judgment dismissing Mr. Zaborski's Labor Law § 240 (1) and § 241 (6) claims,
first asserts that plaintiff's Labor Law § 240 (1) claim lacks merit. NY Builders maintains
that the goal of Labor Law § 240 (1) is to provide exceptional protection for workers against
the special hazards which stem from a work site that is either elevated or positioned below
the level where materials are hoisted or secured. However, NY Builders continues, not
every worker who falls at a construction site, and not every object that falls on a worker,
gives rise to the extraordinary protections of Labor Law § 240 (1). NY Builders asserts that
liability exists only where the alleged accident is a product of both a hazard contemplated in
§ 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated
therein. Here, though, NY Builders claims, the subject work precluded the use of devices
such as safety nets. Specifically, NY Builders continues, its deposition witnesses testified
that a safety net would have prevented workers from accessing the relevant areas of the
stairway under construction. NY Builders also suggests that Labor Law § 240 (1) only
applies to falling objects that were hoisted or secured at relevant times, and, here, it adds,
the subject clamp was not being hoisted or secured before the accident. For these reasons,
NY Builders states that Labor Law § 240 (1) does not apply to the instant facts.
Alternatively, NY Builders alleges that Mr. Zaborski was the sole proximate cause of
his injury. Specifically, NY Builders asserts that any failure on Cornerstone's part to
provide protection from such an elevation-related risk was not a proximate cause of the
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accident. To the contrary, NY Builders continues, Mr. Zaborski's own actions are the sole
proximate cause of the accident, and there is thus no liability. Here, notes NY Builders, Mr.
Zaborski was not wearing a hard hat at the time of the accident despite standard protocols
requiring him to do so. NY Builders acknowledges that Mr. Zaborski claimed to not know
Builders'
whether it was safe or not to perform his work without a hard hat; however, NY
deposition witness testified that all employees are, when hired, given personal protective
equipment (including a hard hat, gloves and face mask) and instructions to always use them.
Indeed, NY Builders continues, its witness testified that before the subject accident the use
of hard hats was discussed at safety meetings with employees. NY Builders adds that its
witness recalled telling Mr. Zaborski to wear a hard hat during installations, approximately
three to four months before the accident. Additionally, NY Builders points out that
Cornerstone's deposition witness stated that the use of hard hat was required at the
premises, and that if he observed any worker on site not wearing a hard hat, the worker
would be asked to obtain a hard hat or leave. Also, NY Builders claims that Mr. Zaborski
was improperly not paying attention to the work being performed above him before the
accident.
Lastly, NY Builders argues that Labor Law § 240 (1) does not apply to the instant
matter because any height differential between plaintiff and the object that fell on him was
de minimis. NY Builders points out that although plaintiff approximated that the clamp fell
a distance of one and a half meters, its deposition witness testified that the clamp was within
touching distance from plaintiff, approximately 2 feet above plaintiff's head, when it fell.
NY Builders notes that appellate authority stands for the proposition that objects that are
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within reach of the injured worker, but later fall, do not trigger Labor Law § 240 (1). NY
Builders concludes that for this third reason, Labor Law § 240 (1) does not apply here, and
plaintiff's claims thereunder should be dismissed. Alternatively, NY Builders alleges that
the record indicates several material factual issues that preclude awarding Mr. Zaborski
summary judgment.
With respect to Labor Law § 241 (6), NY Builders asserts that for an owner,
contractor or agent to be liable under Labor Law § 241 (6), a plaintiff is required to establish
a breach of an Industrial Code rule or regulation which gives a specific, positive command.
NY Builders further argues that, even if the worker alleges the breach of such a specific
Industrial Code rule, the Labor Law § 241 (6) claim is unsustainable if the identified rule is
inapplicable to the facts of the case. Here, NY Builders continues, Mr. Zaborski alleges
violations of Industrial Code 23-1.33 and 23-
§§ 23-1.7, 23-1.8, 23-1.18, 23-1.30, 23-1.32,
2.1. NY Builders claims that perusing these sections demonstrates that the provisions
therein are either not sufficiently specific to support a Labor Law § 241 (6) claim or are
inapplicable to the instant facts. Accordingly, concludes NY Builders, the Labor Law § 241
(6) claim should be dismissed based on plaintiff's failure to identify an applicable and
sufficiently specific Industrial Code provision. For these reasons, NY Builders argues its
cross motion should be granted and plaintiff's motion denied.
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Builders'
Plaintiff's Arguments Opposing NY Cross Motion
Builders'
Mr. Zaborski, in opposition to NY cross motion, first argues that the cross
motion is untimely and should thus not be considered. Alternatively, he continues, to the
extent that appellate authority permits entertaining an ostensibly untimely summary
judgment cross motion because the issues raised therein are nearly identical to those raised
by plaintiffs pending summary judgment motion, consideration should thus be limited to
those issues raised - to judgment as to Labor Law 240 (1).
only previously wit, summary §
Next, and again alternatively, Mr. Zaborski claims that the record establishes his
entitlement to judgment as a matter of law regarding Labor Law § 240 (1). He reiterates
that the stair clamp fell approximately six feet and struck him, and that the clamp was not
properly secured or it wouldn't have fallen Thus, he reasons that Cornerstone failed in
fulfilling its non-delegable duty to provide safety equipment to prevent the subject clamp
from falling and thereby committed a Labor Law § 240 (1) violation.
Builders'
Mr. Zaborski also characterizes Cornerstone and NY opposition arguments
Builders'
as dependent on hearsay statements. More specifically, NY deposition witness
testified that he was off-site when the accident happened and then received a call from
plaintiffs coworker indicating that a clamp fell on plaintiffs head. Any other statement
about the accident, plaintiff continues (such as plaintiffs alleged inattention), should be
disregarded, irrespective of whether such statements are attributed to plaintiffs coworker, as
hearsay. Indeed, Mr. Zaborski adds, if Cornerstone or NY Builders wanted to rely on
statements of plaintiffs coworker, they could have deposed the coworker and would then
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have sworn statements from him. Absent that, Mr. Zaborski concludes, Cornerstone and
Builders'
NY arguments, premised on hearsay statements, should be ignored.
plaintiff claims that the distance that the fell - from a height of
Additionally, clamp
six feet - is not de minimis. he asserts that the relevant is
approximately Instead, inquiry
whether the falling object is capable of generating significant force even over a relatively
short descent. Mr. Zaborski notes that relatively recent appellate authority instructs trial
courts addressing falls under Labor Law § 240 (1) to consider the combination of gravity
coupled with the object's injury-producing potential, instead of just a height threshold.
Moreover, as Mr. Zaborski adds, given that the clamp was required to be secured for the
purposes of the performed work, there is no merit to suggesting that the failure to wear a
"sole"
hard hat was the proximate cause of the accident. Consequently, Mr. Zaborski claims
that he is entitled to summary judgment as to Labor Law § 240 (1), notwithstanding these
opposition arguments.
Lastly, plaintiff asserts that his Labor Law § 241 (6) claim should not be dismissed as
itis sustainable based on Industrial Code § 23-1.30, which imposes minimum illumination
requirements. He highlights that this section contains a positive, specific command, and that
NY Builders offers no evidence that the minimum illumination requirements set forth in the
section were met. Accordingly, Mr. Zaborski contends that the cross motion should be
denied on this additional ground. In sum, he concludes that his summary judgment motion
should be granted, and the cross motion should be denied.
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Discussion
Summary JudgmentStandard
Summary judgment is a drastic remedy that deprives a litigant of his or her day in
court and should thus only be employed when there is no doubt as to the absence of triable
issues of material fact (Kolivas v Kirchoff 14 AD3d 493 [2d Dept 2005]; see also Andre v
Pomeroy, 35 NY2d 361, 364 [1974]). "[T]he proponent of a summary judgment motion
must make a prima facie showing of entitlement to judgment as a matter of law, tendering
fact"
sufficient evidence to demonstrate the absence of any material issues of (Manicone v
City of New York, 75 AD3d 535, 537 [2d Dept 2010], quoting Alvarez v Prospect Hosp., 68
NY2d 320, 324 [1986], citing Zuckerman v City of New York, 49 NY2d 557, 562 [1980];
Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Sillman v Twentieth
Century-Fox Film Corp., 3 NY2d 395, 404 [1957], rearg denied 3 NY2d 941 [1957]). The
motion should be granted only when it is clear that no material and triable issue of fact is
presented (Di Menna & Sons v City ofNew York, 301 NY 118 [1950]).
If a movant meets the initial burden, the court must then evaluate whether the issues
of fact alleged by the opponent are genuine or unsubstantiated (Gervasio v Di Napoli, 134
AD2d 235, 236 [2d Dept 1987]; Assing v United Rubber Supply Co., 126 AD2d 590 [2d
Dept 1987]; Columbus Trust Co. v Campolo, 110 AD2d 616 [2d Dept 1985], affd 66 NY2d
701 [1985]). Parties opposing a motion for summary judgment are entitled to every
favorable inference that may be drawn from the pleadings, affidavits and competing
contentions (see Fortune v Raritan Building Services Corp., 175 AD3d 469, 470 [2d Dept
2019]; Emigrant Bank v Drimmer, 171 AD3d 1132, 1134 [2d Dept 2019]; Pierre-Louis v
. --.
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DeLonghi America, Inc., 66 AD3d 859, 862 [2d Dept 2009], citing Nicklas v Tedlen Realty
Corp., 305 AD2d 385 [2d Dept 2003]; Henderson v City of New York, 178 AD2d 129, 130
[1st Dept 1991]; Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt., L.P., 7
NY3d 96, 105-106 [2006]); Akseizer v Kramer, 265 AD2d 356 [2d Dept 1999]; McLaughlin
v Thaima Realty Corp., 161 AD2d 383, 384 [1st Dept 1990]; Gibson v American Export
Isbrandtsen Lines, 125 AD2d 65, 74 [1st Dept 1987]; Strychalski v Mekus, 54 AD2d 1068,
1069 [4th Dept 1976]).
Conclusory assertions, even if believable, are not enough to defeat a summary
judgment motion (Seaboard Sur. Co. v Nigro Bros., 222 AD2d 574, 575 [2d Dept 1999]).
More specifically, "averments merely stating conclusions, of fact or of law, are insufficient
judgment"
[to] defeat summary (Banco Popular North America v Victory Taxi Management,
Inc., 1 NY3d 381, 383 [2004], quoting Mallad Constr. Corp. v County Fed. Sav. & Loan
Assn., 32 NY2d 285, 290 [1973]). Summary judgment "should not be granted where there
is any doubt as to the existence of such issues or where the issue is 'arguable'; issue-finding,
procedure"
rather than issue-determination, is the key to the (Sillman, 3 NY2d at
404'[internal citations omitted]). "The court's function on a motion for summary judgment
issues"'
is 'to determine whether material factual issues exist, not resolve such (Ruiz v
Griffin, 71 AD3d 1112, 1115 [2d Dept 2010] quoting Lopez v Beltre, 59 AD3d 683, 685 [2d
Dept 2009]). Lastly, if there is no genuine issue of fact, a trial court should summarily
364).2
decide the issues raised in a motion for summary judgment (Andre, 35 NY2d at
2 respect to the argument that the cross motion is the court finds that "good
With untimely,
cause"
(CPLR 3212 [fj) exists for an erstwhile untimely cross motion for summary judgment.
12
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Labor Law § 241 (6)
Next, Labor Law § 241 states, in applicable part, as follows:
"All contractors and owners and their agents, except owners of
one and two-family dwellings who contract for but do not direct
Preview
FILED: KINGS COUNTY CLERK 08/03/2022 05:31 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 08/03/2022 EXHIBIT A FILED: KINGS COUNTY CLERK 08/03/2022 05:31 PM INDEX NO. 504273/2017 NYSCEF NYSCEF DOC. DOC. NO. NO. 85 116 RECEIVED RECEIVED NYSCEF: NYSCEF: 08/03/2022 03/01/2021 At an IAS Term, Part 9 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, 1st on the day of March, 2021. P R E S E N T: HON. DEBRA SILBER, Justice. . - _ -- - _ - - - - _ _- _ _ _- -_ _---- - - - - -_ _ - _ - _ X ROBERT ZABORSKI, DECISION/ORDER Plaintiff, Index No. 504273/17 - against - Motion Sequence Nos. 3, 4 MB LORIMER LLC and CORNERSTONE BUILDERS NY LLC, Defendants. - - _ _ -- - - - _ _-----------__-----__ _ - - - - _ x CORNERSTONE BUILDERS NY LLC, Third-Party Plaintiff, -against- NEW YORK BUILDER OF STAIRS, Third-Party Defendant. - _ - _ -- - - _ _ _ --____ _ _ _.. _ _ _ _ _ -- - - _ _ -- - _ - X The following e-filed papers read herein: NYSCEF Doc. Nos. Notice of Motion/Cross Motion and Affidavits (Affirmations) Annexed 58-70. 75-76 Opposing Affidavits (Affirmations) 74, 76, 77 Reply Affidavits (Affirmations) 77.. 78.. 76. 79-80 Upon the foregoing papers, plaintiff Robert Zaborski (plaintiff or Mr. Zaborski) moves (in motion sequence [mot. seq.] three) for an order, pursuant to CPLR 3212, granting FILED: KINGS COUNTY CLERK 08/03/2022 05:31 PM INDEX NO. 504273/2017 NYSCEF NYSCEF DOC. DOC. NO. NO. 116 85 RECEIVED RECEIVED NYSCEF: NYSCEF: 08/03/2022 03/01/2021 him partial summary judgment against defendant Cornerstone Builders NY LLC (Cornerstone) on the issue of liability pursuant to Labor Law § 240 (1). Third-party defendant New York Builders of Stairs, Inc. (NY Builders or NYBS) cross-moves (in mot. seq. four) for an order, pursuant to CPLR 3212, granting it summary judgment dismissing plaintiffs Labor Law §§ 240 (1) and 241 (6) claims. Background Mr. Zaborski commenced the instant action by electronically filing a summons and verified complaint with this court on March 3, 2017. Plaintiff alleges therein that on July 18, 2016, he was in a construction/renovation accident at the premises known as 163 Builders' Middleton Street in Brooklyn. Specifically, plaintiff (a NY employee) claims that he was injured while assembling an interior wooden curved/spiral staircase in a residential building under construction. He maintains that a clamp, used to keep steps and risers in place, fell and struck him, causing injuries. Cornerstone later interposed an answer and impleaded NY Builders. Plaintiff argues that defendants, inter alia, violated Labor Law § 240 (1) and § 241 (6), as well as certain applicable provisions of the Industrial Code (12 NYCRR ch 1, subch A.) by allowing the clamp to fall. Plaintiff also maintains that the Labor Law and Industrial Code violations proximately caused his injuries. Plaintiff further asserts that defendants MB Lorimer LLC (against which a December 7, 2017 default judgment order was issued [see NYSCEF Doc No. 21]) and Cornerstone were, respectively, the owner of the subject premises and the general contractor hired by the owner to construct the building. Plaintiff reasons that defendants are vicariously liable for the Labor Law violations without regard to 2 FILED: KINGS COUNTY CLERK 08/03/2022 05:31 PM INDEX NO. 504273/2017 NYSCEF NYSCEF DOC. DOC. NO. NO. 85 116 RECEIVED RECEIVED NYSCEF: NYSCEF: 08/03/2022 03/01/2021 fault or responsibility. Lastly, plaintiff argues that he was on a construction site performing workl construction and, as such, was a covered worker, and he seeks damages against defendants for his injuries. Discovery ensued, and on February 14, 2020, plaintiff filed a note of issue and certificate of readiness, with a trial by jury demand (see NYSCEF Doc No. 56), certifying that discovery is complete and that this matter is ready for trial. The instant summary judgment motions followed. PlaintVf's Arguments Supporting His Partial Summary Judgment Motion Mr. Zaborski, in support of his motion, contends that Cornerstone, being a "contractor," as that term is used in Labor Law § 240 (1) and interpreted by the courts of this state, is subject to liability, pursuant to Labor Law § 240 (1), for elevation-related construction accidents without regard to fault or responsibility. He points out that the "proper" statute places a non-delegable duty on owners and contractors to provide protection against elevation-related risks on construction sites. Plaintiff states that, immediately before the accident, he was standing on a plywood platform that covered a stairwell opening. He was assisting a coworker who, while standing on a ladder, was installing steps and risers to complete the stairs from the second to the third floors of the building under construction. Plaintiff claims that he was standing below the coworker, in front of the ladder, and was lifting and handing tools and materials to his coworker. 1 scope of Labor provisions is Work within the the Law's vicarious liability commonly "protected" referenced as activities, tasks or work. Workers covered by the statute are commonly "protected" referenced as workers. 3 FILED: KINGS COUNTY CLERK 08/03/2022 05:31 PM INDEX NO. 504273/2017 NYSCEF NYSCEF DoC. DOC. NO. NO. 85 116 RECEIVED RECEIVED NYSCEF: NYSCEF: 03/01/2021 08/03/2022 Plaintiff alleges that, when he bent down to pick up a drill to hand to his coworker, a stair clamp (presumably some form of a c clamp) which were used to secure the steps and risers in place during the construction of the stairs, somehow fell approximately six feet and struck him on the head. He testified at his EBT that he lost consciousness and woke up in a pool of blood. Plaintiff argues that an accident involving a falling object at a construction site implicates Labor Law § 240 (1), and reiterates that the statute places a non-delegable duty to protect workers from the risk of being struck and injured by a falling object on the property owners and general contractors (such as defendants herein). Mr. Zaborski claims that Cornerstone's failure to keep the subject clamp properly secured, and/or the failure to furnish plaintiff with personal protective equipment to protect him from falling objects (such as a hard hat) or devices that would prevent a fall (such as a net) constitute violations of Labor Law § 240 (1). Plaintiff claims that the facts establish that the Labor Law § 240 (1) violations were "protected" the proximate cause of his injuries and that he was a worker performing tasks" "protected (see n 1, supra) within the scope of the statute. Lastly, plaintiff maintains that there is no serious dispute as to whether Cornerstone is a general contractor subject to absolute vicarious liability pursuant to the statute. For these reasons, Mr. Zaborski concludes that he has established prima facie entitlement to judgment as a matter of law against Cornerstone, and, therefore, his partial summary judgment motion, pursuant to Labor Law 240 (1), on the issue of liability against Cornerstone should be granted. § 4 FILED: KINGS COUNTY CLERK 08/03/2022 05:31 PM INDEX NO. 504273/2017 NYSCEF NYSCEF DoC. DOC. NO. NO. 85 116 RECEIVED RECEIVED NYSCEF: NYSCEF: 08/03/2022 03/01/2021 Cornerstone's Arguments Opposing Plaintiff's Motion Cornerstone, in opposition to Mr. Zaborski's motion, first argues that plaintiff has not demonstrated a Labor Law § 240 (1) violation because plaintiff has failed to identify any relevant safety devices. Cornerstone claims that a plaintiff who alleges the existence of a Labor Law § 240 (1) violation based on a falling object must demonstrate that the object required securing for the purposes of the undertaking and that, here, plaintiff has failed to demonstrate this. More specifically, Cornerstone argues that Mr. Zaborski must specify what safety device either failed or was absent in order to support his Labor Law § 240 (1) claim. Cornerstone notes that, to the extent Mr. Zaborski claims that defendants were required to install safety nets in the subject stairwell, the NYBS deposition witness testified that it would have been impossible to install nets in the area where plaintiff was working. Moreover, Cornerstone adds that the NYBS deposition witness contradicted Mr. Zaborski's testimony about the availability of hard hats and instructions to wear them. Also, Cornerstone claims that there is a significant difference between Mr. Zaborski's description of the fall, in which he says the subject clamp fell six feet, and other deposition witnesses who stated Mr. Zaborski was working approximately two feet below the clamp. Cornerstone contends that these are material factual issues, which preclude summary judgment. Accordingly, Cornerstone concludes that Mr. Zaborski's motion should be denied. FILED: KINGS COUNTY CLERK 08/03/2022 05:31 PM INDEX NO. 504273/2017 NYSCEF NYSCEF DoC. DOC. NO. NO. 85 116 RECEIVED RECEIVED NYSCEF: NYSCEF: 08/03/2022 03/01/2021 Builders' NY Arguments Supporting Its Summary Judgment Cross Motion and Opposing Mr. Zaborski's Motion NY Builders, in opposition to plaintiff's motion, and in support of its motion for summary judgment dismissing Mr. Zaborski's Labor Law § 240 (1) and § 241 (6) claims, first asserts that plaintiff's Labor Law § 240 (1) claim lacks merit. NY Builders maintains that the goal of Labor Law § 240 (1) is to provide exceptional protection for workers against the special hazards which stem from a work site that is either elevated or positioned below the level where materials are hoisted or secured. However, NY Builders continues, not every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240 (1). NY Builders asserts that liability exists only where the alleged accident is a product of both a hazard contemplated in § 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein. Here, though, NY Builders claims, the subject work precluded the use of devices such as safety nets. Specifically, NY Builders continues, its deposition witnesses testified that a safety net would have prevented workers from accessing the relevant areas of the stairway under construction. NY Builders also suggests that Labor Law § 240 (1) only applies to falling objects that were hoisted or secured at relevant times, and, here, it adds, the subject clamp was not being hoisted or secured before the accident. For these reasons, NY Builders states that Labor Law § 240 (1) does not apply to the instant facts. Alternatively, NY Builders alleges that Mr. Zaborski was the sole proximate cause of his injury. Specifically, NY Builders asserts that any failure on Cornerstone's part to provide protection from such an elevation-related risk was not a proximate cause of the 6 FILED: - --.- . KINGS .......-- COUNTY ---.,-- CLERK -.......... 08/03/2022 .... ...-..... 05:31 - - .- , PM .. INDEX NO. 504273/2017 --, NYSCEF NYSCEF DOC. DOC. NO. NO. 85 116 RECEIVED RECEIVED NYSCEF: NYSCEF: 03/01/2021 08/03/2022 accident. To the contrary, NY Builders continues, Mr. Zaborski's own actions are the sole proximate cause of the accident, and there is thus no liability. Here, notes NY Builders, Mr. Zaborski was not wearing a hard hat at the time of the accident despite standard protocols requiring him to do so. NY Builders acknowledges that Mr. Zaborski claimed to not know Builders' whether it was safe or not to perform his work without a hard hat; however, NY deposition witness testified that all employees are, when hired, given personal protective equipment (including a hard hat, gloves and face mask) and instructions to always use them. Indeed, NY Builders continues, its witness testified that before the subject accident the use of hard hats was discussed at safety meetings with employees. NY Builders adds that its witness recalled telling Mr. Zaborski to wear a hard hat during installations, approximately three to four months before the accident. Additionally, NY Builders points out that Cornerstone's deposition witness stated that the use of hard hat was required at the premises, and that if he observed any worker on site not wearing a hard hat, the worker would be asked to obtain a hard hat or leave. Also, NY Builders claims that Mr. Zaborski was improperly not paying attention to the work being performed above him before the accident. Lastly, NY Builders argues that Labor Law § 240 (1) does not apply to the instant matter because any height differential between plaintiff and the object that fell on him was de minimis. NY Builders points out that although plaintiff approximated that the clamp fell a distance of one and a half meters, its deposition witness testified that the clamp was within touching distance from plaintiff, approximately 2 feet above plaintiff's head, when it fell. NY Builders notes that appellate authority stands for the proposition that objects that are 7 FILED: KINGS COUNTY CLERK 08/03/2022 05:31 PM INDEX NO. 504273/2017 NYSCEF NYSCEF DOC. DOC. NO. NO. 116 85 RECEIVED RECEIVED NYSCEF: NYSCEF: 08/03/2022 03/01/2021 within reach of the injured worker, but later fall, do not trigger Labor Law § 240 (1). NY Builders concludes that for this third reason, Labor Law § 240 (1) does not apply here, and plaintiff's claims thereunder should be dismissed. Alternatively, NY Builders alleges that the record indicates several material factual issues that preclude awarding Mr. Zaborski summary judgment. With respect to Labor Law § 241 (6), NY Builders asserts that for an owner, contractor or agent to be liable under Labor Law § 241 (6), a plaintiff is required to establish a breach of an Industrial Code rule or regulation which gives a specific, positive command. NY Builders further argues that, even if the worker alleges the breach of such a specific Industrial Code rule, the Labor Law § 241 (6) claim is unsustainable if the identified rule is inapplicable to the facts of the case. Here, NY Builders continues, Mr. Zaborski alleges violations of Industrial Code 23-1.33 and 23- §§ 23-1.7, 23-1.8, 23-1.18, 23-1.30, 23-1.32, 2.1. NY Builders claims that perusing these sections demonstrates that the provisions therein are either not sufficiently specific to support a Labor Law § 241 (6) claim or are inapplicable to the instant facts. Accordingly, concludes NY Builders, the Labor Law § 241 (6) claim should be dismissed based on plaintiff's failure to identify an applicable and sufficiently specific Industrial Code provision. For these reasons, NY Builders argues its cross motion should be granted and plaintiff's motion denied. 8 FILED: KINGS COUNTY CLERK 08/03/2022 05:31 PM INDEX NO. 504273/2017 NYSCEF NYSCEF DOC. DOC. NO. NO. 85 116 RECEIVED RECEIVED NYSCEF: NYSCEF: 08/03/2022 03/01/2021 Builders' Plaintiff's Arguments Opposing NY Cross Motion Builders' Mr. Zaborski, in opposition to NY cross motion, first argues that the cross motion is untimely and should thus not be considered. Alternatively, he continues, to the extent that appellate authority permits entertaining an ostensibly untimely summary judgment cross motion because the issues raised therein are nearly identical to those raised by plaintiffs pending summary judgment motion, consideration should thus be limited to those issues raised - to judgment as to Labor Law 240 (1). only previously wit, summary § Next, and again alternatively, Mr. Zaborski claims that the record establishes his entitlement to judgment as a matter of law regarding Labor Law § 240 (1). He reiterates that the stair clamp fell approximately six feet and struck him, and that the clamp was not properly secured or it wouldn't have fallen Thus, he reasons that Cornerstone failed in fulfilling its non-delegable duty to provide safety equipment to prevent the subject clamp from falling and thereby committed a Labor Law § 240 (1) violation. Builders' Mr. Zaborski also characterizes Cornerstone and NY opposition arguments Builders' as dependent on hearsay statements. More specifically, NY deposition witness testified that he was off-site when the accident happened and then received a call from plaintiffs coworker indicating that a clamp fell on plaintiffs head. Any other statement about the accident, plaintiff continues (such as plaintiffs alleged inattention), should be disregarded, irrespective of whether such statements are attributed to plaintiffs coworker, as hearsay. Indeed, Mr. Zaborski adds, if Cornerstone or NY Builders wanted to rely on statements of plaintiffs coworker, they could have deposed the coworker and would then 9 FILED: .......- . KINGS .....-... COUNTY ,..,....... -.... CLERK ...., -- 08/03/2022 -...... 05:31 - - .- . PM ..., INDEX NO. 504273/2017 NYSCEF NYSCEF DOC. DOC. NO. NO. 85 116 RECEIVED RECEIVED NYSCEF: NYSCEF: 03/01/2021 08/03/2022 have sworn statements from him. Absent that, Mr. Zaborski concludes, Cornerstone and Builders' NY arguments, premised on hearsay statements, should be ignored. plaintiff claims that the distance that the fell - from a height of Additionally, clamp six feet - is not de minimis. he asserts that the relevant is approximately Instead, inquiry whether the falling object is capable of generating significant force even over a relatively short descent. Mr. Zaborski notes that relatively recent appellate authority instructs trial courts addressing falls under Labor Law § 240 (1) to consider the combination of gravity coupled with the object's injury-producing potential, instead of just a height threshold. Moreover, as Mr. Zaborski adds, given that the clamp was required to be secured for the purposes of the performed work, there is no merit to suggesting that the failure to wear a "sole" hard hat was the proximate cause of the accident. Consequently, Mr. Zaborski claims that he is entitled to summary judgment as to Labor Law § 240 (1), notwithstanding these opposition arguments. Lastly, plaintiff asserts that his Labor Law § 241 (6) claim should not be dismissed as itis sustainable based on Industrial Code § 23-1.30, which imposes minimum illumination requirements. He highlights that this section contains a positive, specific command, and that NY Builders offers no evidence that the minimum illumination requirements set forth in the section were met. Accordingly, Mr. Zaborski contends that the cross motion should be denied on this additional ground. In sum, he concludes that his summary judgment motion should be granted, and the cross motion should be denied. 10 FILED: -----. KINGS .......-- COUNTY ..,,..-.... CLERK ,..--.,-- 08/03/2022 ---- 05:31 --"- - PM -- INDEX NO. 504273/2017 --r --r NYSCEF NYSCEF DOC. DOC. NO. NO. 85 116 RECEIVED RECEIVED NYSCEF: NYSCEF: 03/01/2021 08/03/2022 Discussion Summary JudgmentStandard Summary judgment is a drastic remedy that deprives a litigant of his or her day in court and should thus only be employed when there is no doubt as to the absence of triable issues of material fact (Kolivas v Kirchoff 14 AD3d 493 [2d Dept 2005]; see also Andre v Pomeroy, 35 NY2d 361, 364 [1974]). "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering fact" sufficient evidence to demonstrate the absence of any material issues of (Manicone v City of New York, 75 AD3d 535, 537 [2d Dept 2010], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986], citing Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957], rearg denied 3 NY2d 941 [1957]). The motion should be granted only when it is clear that no material and triable issue of fact is presented (Di Menna & Sons v City ofNew York, 301 NY 118 [1950]). If a movant meets the initial burden, the court must then evaluate whether the issues of fact alleged by the opponent are genuine or unsubstantiated (Gervasio v Di Napoli, 134 AD2d 235, 236 [2d Dept 1987]; Assing v United Rubber Supply Co., 126 AD2d 590 [2d Dept 1987]; Columbus Trust Co. v Campolo, 110 AD2d 616 [2d Dept 1985], affd 66 NY2d 701 [1985]). Parties opposing a motion for summary judgment are entitled to every favorable inference that may be drawn from the pleadings, affidavits and competing contentions (see Fortune v Raritan Building Services Corp., 175 AD3d 469, 470 [2d Dept 2019]; Emigrant Bank v Drimmer, 171 AD3d 1132, 1134 [2d Dept 2019]; Pierre-Louis v . --. FILED: KINGS .--.,,..- COUNTY -,..... . CLERK ,..-.... 08/03/2022 --, --, -,,-- 05:31 --. -. PM .., INDEX NO. 504273/2017 NYSCEF NYSCEF DOC. DOC. NO. NO. 85 116 RECEIVED RECEIVED NYSCEF: NYSCEF: 03/01/2021 08/03/2022 DeLonghi America, Inc., 66 AD3d 859, 862 [2d Dept 2009], citing Nicklas v Tedlen Realty Corp., 305 AD2d 385 [2d Dept 2003]; Henderson v City of New York, 178 AD2d 129, 130 [1st Dept 1991]; Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt., L.P., 7 NY3d 96, 105-106 [2006]); Akseizer v Kramer, 265 AD2d 356 [2d Dept 1999]; McLaughlin v Thaima Realty Corp., 161 AD2d 383, 384 [1st Dept 1990]; Gibson v American Export Isbrandtsen Lines, 125 AD2d 65, 74 [1st Dept 1987]; Strychalski v Mekus, 54 AD2d 1068, 1069 [4th Dept 1976]). Conclusory assertions, even if believable, are not enough to defeat a summary judgment motion (Seaboard Sur. Co. v Nigro Bros., 222 AD2d 574, 575 [2d Dept 1999]). More specifically, "averments merely stating conclusions, of fact or of law, are insufficient judgment" [to] defeat summary (Banco Popular North America v Victory Taxi Management, Inc., 1 NY3d 381, 383 [2004], quoting Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 290 [1973]). Summary judgment "should not be granted where there is any doubt as to the existence of such issues or where the issue is 'arguable'; issue-finding, procedure" rather than issue-determination, is the key to the (Sillman, 3 NY2d at 404'[internal citations omitted]). "The court's function on a motion for summary judgment issues"' is 'to determine whether material factual issues exist, not resolve such (Ruiz v Griffin, 71 AD3d 1112, 1115 [2d Dept 2010] quoting Lopez v Beltre, 59 AD3d 683, 685 [2d Dept 2009]). Lastly, if there is no genuine issue of fact, a trial court should summarily 364).2 decide the issues raised in a motion for summary judgment (Andre, 35 NY2d at 2 respect to the argument that the cross motion is the court finds that "good With untimely, cause" (CPLR 3212 [fj) exists for an erstwhile untimely cross motion for summary judgment. 12 FILED: KINGS COUNTY CLERK 08/03/2022 05:31 PM INDEX NO. 504273/2017 NYSCEF NYSCEF DOC. DOC. NO. NO. 85 116 RECEIVED RECEIVED NYSCEF: NYSCEF: 08/03/2022 03/01/2021 Labor Law § 241 (6) Next, Labor Law § 241 states, in applicable part, as follows: "All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct