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FILED: KINGS COUNTY CLERK 10/20/2022 04:01 PM INDEX NO. 504273/2017
NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 10/20/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
X Index No.: 504273/2017
ROBERT ZABORSKI,
Plaintiff, NOTICE OF APPEAL
-against-
MB LORIMER LLC and CORNERSTONE BUILDERS
NY LLC,
Defendants.
X
CORNERSTONE BUILDERS NY LLC,
Third-Party Plaintiff,
-against-
NEW YORK BUILDERS OF STAIRS, INC.,
Third-Party Defendant.
X
PLEASE TAKE NOTICE that the Plaintiff, ROBERT ZABORSKI, hereby appeals to
the Appellate Division of the Supreme Court of the State of New York, Second Department, from
an Order of the Supreme Court, Kings, County, dated October 11, 2022 and entered with the Kings
County clerk on October 11, 2022 and that Plaintiff appeals from each and every portion of the
Order.
Dated: New York, New York
October 20, 2022
Yours, etc.,
THE PLATT AW FIRM, PLLC
By:
MICHAEL TAUB, Esq.
Attorneys for Plaintiff
42 Broadway, Suite 1927
New York, New York 10004
(212) 514-5100
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TO:
Traub Lieberman Straus and
Shrewsberry, LLP
Attorneys for Defendant/Third-Party Plaintiff
CORNERSTONE BUILDERS NY LLC
Mid-Westchester Executive Park
Seven Skyline Drive
Hawthorne, New York 10532
Pillinger Miller Tarallo, LLP
Attorneys for Third-Party Defendant
NEW YORK BUILDERS OF STAIRS, INC.
5th
555 Taxter Road, PlOOT
Elmsford, New York 10523
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9upreme (Eourt of 11e 9tate of New §ork
Appellate Binision: Second Jubicial Bepartment
Informational Statement (Pursuant to 22 NYCRR 1250.3 - Civil
[a])
For Court of OriginalInstance
e e
ROBERT ZABORSKI
PLAINTIFF,
Date Notice of Appeal Filed
- against -
MB LORIMER LLC and CORNERSTONE BUILDERS NY, LLC, et al.
For Appellate Division
DEFENDANTS.
Civil Action O CPLR article78 Proceeding Appeal O Transferred Proceeding
O CPLR article
75 Arbitration O Special Proceeding Other O OriginalProceedings O CPLR Article 78
¡ CPLR Article 78 O Executive Law § 298
¡ Habeas Corpus Proceeding
¡ Eminent Domain O CPLR 5704 Review
O Labor Law 220 or 220-b
O Public Oflicers Law § 36
U Real Property Tax Law § I278
¡ Administrative Review ¡ Business Relationships ¡ Commercial ¡ Contracts
¡ Declaratory Judgment ¡ Domestic Relations ¡ Election Law ¡ Estate Matters
¡ Family Court O Mortgage Foreclosure O Miscellaneous ¡ Prisoner Discipline & Parole
O Real Property O Statutory ¡ Taxation Torts
(other than foreclosure)
InformationalStatement - Civil
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Paper Appealed From (Check one only): Ifan appeal has been taken from more than one order or
judgment by the filingof thisnotice of appeal, please
indicate the below information for each such order or
judgment appealed from on a separate sheet of paper.
O Amended Decree O Determination E Order O Resettled Order
¡ Amended Judgement O Finding ¡ Order & Judgment O Ruling
¡ Amended Order O Interlocutory Decree ¡ PartialDecree O Other (specify):
O Decision O Interlocutory Judgment ¡ Resettled Decree
O Decree ¡ Judgment O Resettled Judgment
Court: Supreme Court 8 County: Kings
Dated: 10/11/2022 Entered:10/11/2022
Judge (name infull):Debrasilber Index No.:504273/2017
Stage: E Interlocutory O Final O Post-Final Trial: ¡ Yes E No If Yes:¡ Jury O Non-Jury
Prior Unperfected Appeal and Related Case Information
Are any appeals arising in the same action or proceeding currently pending inthe court? O Yes G No
If Yes,please set forth the Appellate Division Case Number assigned to each such appeal.
Where appropriate, indicate whether there is any related action or proceeding now in any court of this or any other
jurisdiction,and ifso, thestatus of the case:
Commenced by: ¡ Order to Show Cause ¡ Notice of Petition O Writ of Habeas Corpus Date Filed:
Statute authorizing commencement of proceeding in the Appellate Division:
Court: Choose Court County: Choose Countv
Judge (name infull): Order of Transfer Date:
Court: Choose Court County: Choose Countv
Judge (name infull): Dated:
Description: Ifan appeal, brieflydescribe the paper appealed from. Ifthe appeal is from an order, specify the relief
requested and whether the motion was granted or denied. Ifan original proceeding commenced inthis court or transferred
pursuant to CPLR 7804(g), briefly describe the object of proceeding. If anapplication under CPLR 5704, brieflydescribe the
nature of the ex parte order to be reviewed.
Plaintiffappeals from the lower courfs order that denied theirmotion for Renewal. Pursuant to CPLR 2221 for Renewal of
Plaintiff'sMotion of June 23, 2020 for Summary Judgment in favor of Plaintiff
and against Defendant Cornerstone Builders
NY, LLC and upon Renewal granting Plaintiff
Summary Judgment.
InformationalStatement - Civil
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Issues: Specify the issues proposed to be raised on the appeal, proceeding, or application for CPLR 5704 review, the grounds
for reversal, or modification to be advanced and the specific reliefsought on appeal.
Did the Court below, to the extent that itdenied Renewal, and thereby denied Plaintiff's Motion for
Summary Judgment, err in finding that Renewal would not be granted, thereby denying Plaintiff's Motion
for Summary Judgment?
Party Information
Instructions: Fillinthe name of each party to the action or proceeding, one name per line. Ifthis form is tobe filedfor an
appeal, indicate the status of the party inthe court of original instance and his,her, or itsstatus inthis court, if any. If this
form is tobe filedfor a proceeding commenced in this court, fill
in only the party's name and his,her, or itsstatus inthis
court.
No. Party Name Original Status Appellate Division Status
1 Robert Zaborski 3|aintiff 5 Appellant 5
2 MB LorimerLLC Defendant 5 Respondent 5
3 DornerstoneBuilders
NY, LLC Defendant
4 Mew York Builders
of Stairs,
Inc. Defendant 5 Respondent 5
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
InformationalStatement - Civil
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Instructions: Fillinthe names of the attorneys or firms for the respective parties. If this
form is tobe filed with the
notice of petition or order to show cause by which a special proceeding is tobe commenced in theAppellate Division,
only the name of the attorney for the petitioner need be provided. Inthe event that a litigantrepresents herself or
Se"
himself, the box marked "Pro must be checked and the appropriate information for that litigantmust be supplied
in the spaces provided.
Attorney/Firm Name: The Platta Law Firm, PLLC
Address: 42 Broadway, Suite 1927
City: New York State: New York Zip: 10004 Telephone No: 212-514-5100
E-mail Address: ek@plattalaw.com
Attorney Type: Retained ¡ Assigned ¡ Government ¡ Pro Se ¡ Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):
Attorney/Firm Name: Traub LiebermanStrausand Shrewsberry,LLP
Address: Mid-WestchesterExecutivePark, Seven Skyline
Drive
City:Hawthorne State: New York Zip:10532 Telephone No: 914-347-2600
E-mail Address:nboeckle@tisslaw.com
Attorney Type: B Retained ¡ Assigned O Government ¡ Pro Se ¡ Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):
Attorney/Firm Name: Pillinger
Miller Tarallo,
LLP
Address: 555 TaxterRoad, 5th Floor
City:Elmsford State:NY Zip: 10523 Telephone No: 914-703-6300
E-mail Address: twhite@pmtlawfirm.com
Attorney Type: M Retained ¡ Assigned ¡ Government ¡ Pro Se O Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):
Attorney/Firm Name:
Address:
City: State: Zip: Telephone No:
E-mail Address:
Attorney Type: ¡ Retained ¡ Assigned ¡ Government O Pro Se ¡ Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):
Attorney/Firm Name:
Address:
City: State: Zip: Telephone No:
E-mail Address:
Attorney Type: O Retained O Assigned ¡ Government O Pro Se ¡ Pro Hac Vice
Party or PartiesRepresented (set forthparty number(s) from table above):
Attorney/Firm Name:
Address:
City: State: Zip: | Telephone No:
E-mail Address:
Attorney Type: O Retained O Assigned O Government O Pro Se ¡ Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):
InformationalStatement - Civil
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KINGS 120 COUNTY CLERK 10 12 2022 89: 83 RECEIVED NYSCEF: 10/20/2022
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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,
on the 11th day of October, 2022.
P R E S E N T:
HON. DEBRA SILBER,
Justice.
- - .. - - . .. -
_ . - - .. - - -.- - _ -- - - . . -. . . - - -. X
ROBERT ZABORSKl,
DECISION/ORDER
Plaintiff,
Index No. 504273/17
- against -
Motion Sequence No. 5
MB LORIMER LLC and
CORNERSTONE BUILDERS NY LLC,
Defendants.
..-.-....-_.- _.-.....---- - _ _.- . - -- -. x
CORNERSTONE BUILDERS NY LLC,
Third-Party Plaintiff,
-against-
NEW YORK BUILDER OF STAIRS, INC.,
Third-Party Defendant.
.........-----..-- _ - -_..- _--. _ _ - -- - -x
The following e-filed papers read herein: NYSCEF Doc. Nos.
Notice of Motion/Cross Motion and
Affidavits (Affirmations) Annexed 89-105
Opposing Affidavits (Affirmations) 106-108: 110-1 13
Reply Affidavits (Affirmations) 1 14-1 17
This action arises from a work-related accident which took place in 2016. The action
was commenced in 2017 and is now on the trial calendar.
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Upon the foregoing papers, plaintiff Robert Zaborski moves in motion sequence five
for leave to renew and reargue the court's decision dated March 1, 2021. After virtual oral
argument, leave is denied.
In the court's prior decision, on Motion Seq. #3 and #4, the court denied plaintiff
Zaborski's partial summary judgment motion against defendant/third-party plaintiff
Cornerstone on the issue of liability under Labor Law § 240 (1), and granted third-party
defendant NY Builder's cross motion for summary judgment solely to the extent that
plaintiff's Labor Law § 241 (6) claim was dismissed, and was otherwise denied.
On May 19, 2022, plaintiff filed the instant motion. The branch of the motion for
leave to renew states that it isbased on newly discovered evidence that could not have been
included in the prior motions. Specifically, plaintiff's attorney claims "in November 2021,
Plaintiff happened to encounter a former coworker, Miroslaw Sztark, on a street near his
home; as set forth here, this was the first time that Plaintiff had seen Mr. Sztark since the
accident. In talking, Plaintiff learned that Mr. Sztark lived near him, and that he had
witnessed the accident . . . Prior to this chance encounter, Plaintiff had no contact
Sztark"
information for Mr. [affirmation Doc 91 17]. Plaintiff claims that "until recently, I
did not know that Miroslaw Sztark was either inside the building when my accident
it"
occurred or that he witnessed [Affidavit Doc 92 14].
At his EBT, plaintiff testified that he was employed by third-party defendant NY
Builder of Stairs and was engaged in the installation of a staircase at the time of his
accident. On the day of his accident, there were four employees of NY Builder of Stairs at
the job site, including himself. He testified that after his accident, Miroslaw Sztark, whom
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"Merek"
he refers to as came to his assistance [Doc 102 Page 7]. Now,he avers that he did
not know that this co-worker witnessed his accident. He offers an affidavit from the co-
worker, an affidavit from himself, and an affidavit from an engineer, James Pugh. In his
prior motion for summary judgment, plaintiff did not submit an affidavit from an engineer.
"new"
Plaintiff claims that upon granting him leave to renew and reviewing this evidence,
the court should grant plaintiff summary judgment on his Labor Law 240(1) claim.
Third-party defendant opposes the motion and argues that "Plaintiff's instant motion
to renew is simply seeking a second bite of the apple by a plaintiff who has not exercised
presentation"
due diligence in making his first factual [Doc 110 14]. He continues
"Plaintiff's own deposition testimony establishes that plaintiff had full knowledge (or
should have known) that Mr. Sztark was a witness to his alleged accident before his prior
motion. Specifically, plaintiff testified that Mr. Sztark was one of four (4) employees
(including himself) working on the staircase at the time of the accident, that Mr. Sztark was
present when his accident occurred, and that Mr. Sztark came to plaintiff's assistance
immediately after the accident. Plaintiff offers no reason why he failed to exercise due
diligence in locating Mr. Sztark, a known witness to his accident, to obtain his Affidavit or
motion."
testimony, prior to his original Further, counsel points out [¶7] "Nor has plaintiff
cited to any reasonable justification for his failure to submit the Expert Affidavit of Mr.
Pugh on the prior motion. In fact, plaintiff's motion to renew offers no justification
whatsoever for his failure to submit expert evidence on the prior motion. Plaintiff does not
make a single argument as to why expert evidence was not submitted with his original
papers."
motion
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Defendant Cornerstone Builders also opposes the motion, and their counsel argues
that "For the reasons set forth in the accompanying counter statement of facts and
Memorandum of Law, the Defendant, Cornerstone Builders, respectfully requests that this
entirety"
Court deny the Plaintiff s Motion to Renew summary judgment in its [Doc 106
19]. The memo of law points out that "The testimony elicited by Plaintiff in this case
establishes that Plaintiff knew of Merek's existence on the jobsite since the date of the
2016."
accident in Counsel elaborates "Plaintiff commenced this action in 2017, while
Merek was still working for New York Builder of Stairs, Inc. In this regard, Merek's
whereabouts were known and a statement could have been obtained accordingly. Should
reasonable justification be found here, it would open the door for future Plaintiffs to be
excused from due diligence in investigating their claim. Plaintiff cannot be absolved of his
duty to have sought out a statement from Merek when he knew his involvement from the
beginning."
very
The court notes that Document 72 in the court file, e-filed on May 15, 2020, is a copy
Workers'
of the plaintiff's Compensation Employee Claim Form, signed by plaintiff on
August 2, 2016, which states that the accident occurred on July 18, 2016, and in answering
happen?" Szlark."
question D(11) "Did anyone see your injury plaintiff answered "Mirek
In general, a motion for leave to renew must be based upon new facts not offered on
the prior motion that would change the prior determination and must set forth a reasonable
justification for the failure to present such facts on the prior motion (see Worrell v. Parkway
Estates, LLC, 43 AD3d 436, 437, 840 N.Y.S.2d 817; Heaven v. McGowan, 40 AD3d 583,
such"
586, 835 N.Y.S.2d 641). A motion to renew "shall be identified specifically as (CPLR
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2221(e)(1)). A motion for leave to renew is not a second chance freely given to parties who
have not exercised due diligence in making their first factual presentation (see Worrell v.
Parkway Estates, LLC, 43 AD3d at 437, 840 N.Y.S.2d 817; Renna v. Gullo, 19 AD3d 472,
797 N.Y.S.2d 115). Indeed, the Supreme Court lacks discretion to grant renewal where the
moving party omits a reasonable justification for failing to present the new facts on the
original motion (see Worrell v. Parkway Estates, LLC, 43 AD3d at 437, 840 N.Y.S.2d
817; Greene v. New York City Hous. Auth., 283 AD2d 458, 459, 724 N.Y.S.2d 631).
Here, the justification proffered, that plaintiff could not have previously located his
co-worker, Mr. Sztark, is not supported by the facts in the record. Mr. Sztark's affidavit
asserts that he was employed by the company for more than 15 years and did not leave the
company to change jobs until 2018. Plaintiff listed him as the only witness to his accident
Workers'
on his Compensation claim just weeks after the accident. Thus, the court finds that
plaintiff has failed to make the necessary showing to support the request for leave
to renew (see Chiarella v Quitoni, 178 AD2d 502, 577 N.Y.S.2d 429 [2d Dept 1991]
["Generally, a motion to renew must be based upon newly-discovered material facts or
evidence which existed at the time that the prior motion was made but which were unknown
renewal"
to the party seeking (emphasis added)]). Thus, movant has not established that the
evidence"
"new was not available at the time he made his original motion. In any event, the
evidence"
"new would not have changed the outcome of the motion, as the plaintiff's
witness'
motion was denied due to the factual issues in dispute. The affidavit would not
have changed the prior determination. The new engineer's report certainly may not be
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considered. There is no explanation for obtaining an engineer for the first time for this
motion to renew.
The other branch of the motion seeks leave to reargue the court's determination
granting third-party defendant NY Builder of Stairs summary judgment dismissing the
plaintiff's Labor Law §241(6) claim. However, there is not one word addressed to this
branch of the motion in the affirmation in support. Therefore, leave to reargue must be
denied.
parties'
The next in person appearance in JCP is on February 1, 2023. It appears that
is intended to be a date to commence jury selection, from the notes in the court's computer
records.
The foregoing constitutes the decision and order of the court.
E N T E
Hon. Debra Silber, J.S.C.
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AFFIDAVIT OF SERIVCE
STATE OF NEW YORK )
) s.s.:
COUNTY OF NEW YORK )
KASSANDRA MARIN, being duly sworn, deposes and says:
That affiant is not a party to this action and is over the age of 18 years and resides in Queens
County, New York.
That on October 20, 2022, affiant served the within NOTICE OF APPEAL, DECISION
and ORDER upon the defendant(s) and/or attorney(s) for defendant(s) by depositing a true copy
of same securely enclosed in a postpaid wrapper in a post office, official depository under the
exclusive care and custody of the United States Postal Service within the State of New York,
directed to said individuals or offices as follows:
Traub Lieberman Straus and
Shrewsberry, LLP
Mid-Westchester Executive Park
Seven Skyline Drive
Hawthome, New York 10532
Pillinger Miller Tarallo, LLP
502
555 Taxter Road, Floor
Elmsford, New York 10523
that being the respective address within the State designated by them for that purpose upon the
preceding papers in this action, or the respective places where they kept an office, between which
places there then was and now is a regular communication by mail.
KASSAND MARIN
Sworn to before me this
O t er 20, 2022
RY PUBLIC
Melissa Gonzalez Tobar
Nota Public,State of New York
01G06406539
Qua Queens
..d in County
Expires March 30, 2024
Commission
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
--------------------------------------------------------------------X Index No.: 504273/2017
ROBERT ZABORSKI,
Plaintiff,
-against-
MB LORMIER LLC and CORNERSTONE
BUILDERS NY LLC,
Defendants.
--------------------------------------------------------------------Ç
CORNERSTONE BUILDERS NY, LLC,
Third-Party Plaintiff,
-against-
NEW YORK BUILDER OF STAIRS, INC.,
Third-Party Defendant.
-------------------------------------------------------------------Ç
NOTICE OF APPEAL
THE PLATTA LAW FIRM, PLLC
Attorneys for: Plaintiff
42 Broadway, Suite 1927
New York, New York 10004
(212) 514-5100
The undersigned attorney hereby certifies, pursuant to 22 NYCRR 130-1.1-a that he/she has read
the within papers and that same are not frival u a term is defined in 22 NYCRR 130-
1.1(c).
MICHÆÈ TA
Service of a copy of the within is hereby
admitted.
Dated,
Attorney(s) for
PLEASE TAKE NOTICE:
O NOTICE OF ENTRY
that the within is a (certified) true copy of an Order duly entered in the office of the clerk
of the within named court on 20 .
O NOTICE OF SETTLEMENT
that an Order of which the within is a true copy will be presented for settlement to the
Honorable Justice one of the judges of the within named
Court, on 20____ at O'clock ___.M.
Dated: October 20, 2022
Yours, etc.
THE PLATTA LAW FIRM, PLLC
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FILED: KINGS COUNTY CLERK 10/20/2022 04:01 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 10/20/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS X Index No.: 504273/2017 ROBERT ZABORSKI, Plaintiff, NOTICE OF APPEAL -against- MB LORIMER LLC and CORNERSTONE BUILDERS NY LLC, Defendants. X CORNERSTONE BUILDERS NY LLC, Third-Party Plaintiff, -against- NEW YORK BUILDERS OF STAIRS, INC., Third-Party Defendant. X PLEASE TAKE NOTICE that the Plaintiff, ROBERT ZABORSKI, hereby appeals to the Appellate Division of the Supreme Court of the State of New York, Second Department, from an Order of the Supreme Court, Kings, County, dated October 11, 2022 and entered with the Kings County clerk on October 11, 2022 and that Plaintiff appeals from each and every portion of the Order. Dated: New York, New York October 20, 2022 Yours, etc., THE PLATT AW FIRM, PLLC By: MICHAEL TAUB, Esq. Attorneys for Plaintiff 42 Broadway, Suite 1927 New York, New York 10004 (212) 514-5100 1 of 14 FILED: KINGS COUNTY CLERK 10/20/2022 04:01 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 10/20/2022 TO: Traub Lieberman Straus and Shrewsberry, LLP Attorneys for Defendant/Third-Party Plaintiff CORNERSTONE BUILDERS NY LLC Mid-Westchester Executive Park Seven Skyline Drive Hawthorne, New York 10532 Pillinger Miller Tarallo, LLP Attorneys for Third-Party Defendant NEW YORK BUILDERS OF STAIRS, INC. 5th 555 Taxter Road, PlOOT Elmsford, New York 10523 2 of 14 FILED: KINGS COUNTY CLERK 10/20/2022 04:01 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 10/20/2022 9upreme (Eourt of 11e 9tate of New §ork Appellate Binision: Second Jubicial Bepartment Informational Statement (Pursuant to 22 NYCRR 1250.3 - Civil [a]) For Court of OriginalInstance e e ROBERT ZABORSKI PLAINTIFF, Date Notice of Appeal Filed - against - MB LORIMER LLC and CORNERSTONE BUILDERS NY, LLC, et al. For Appellate Division DEFENDANTS. Civil Action O CPLR article78 Proceeding Appeal O Transferred Proceeding O CPLR article 75 Arbitration O Special Proceeding Other O OriginalProceedings O CPLR Article 78 ¡ CPLR Article 78 O Executive Law § 298 ¡ Habeas Corpus Proceeding ¡ Eminent Domain O CPLR 5704 Review O Labor Law 220 or 220-b O Public Oflicers Law § 36 U Real Property Tax Law § I278 ¡ Administrative Review ¡ Business Relationships ¡ Commercial ¡ Contracts ¡ Declaratory Judgment ¡ Domestic Relations ¡ Election Law ¡ Estate Matters ¡ Family Court O Mortgage Foreclosure O Miscellaneous ¡ Prisoner Discipline & Parole O Real Property O Statutory ¡ Taxation Torts (other than foreclosure) InformationalStatement - Civil 3 of 14 FILED: KINGS COUNTY CLERK 10/20/2022 04:01 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 10/20/2022 Paper Appealed From (Check one only): Ifan appeal has been taken from more than one order or judgment by the filingof thisnotice of appeal, please indicate the below information for each such order or judgment appealed from on a separate sheet of paper. O Amended Decree O Determination E Order O Resettled Order ¡ Amended Judgement O Finding ¡ Order & Judgment O Ruling ¡ Amended Order O Interlocutory Decree ¡ PartialDecree O Other (specify): O Decision O Interlocutory Judgment ¡ Resettled Decree O Decree ¡ Judgment O Resettled Judgment Court: Supreme Court 8 County: Kings Dated: 10/11/2022 Entered:10/11/2022 Judge (name infull):Debrasilber Index No.:504273/2017 Stage: E Interlocutory O Final O Post-Final Trial: ¡ Yes E No If Yes:¡ Jury O Non-Jury Prior Unperfected Appeal and Related Case Information Are any appeals arising in the same action or proceeding currently pending inthe court? O Yes G No If Yes,please set forth the Appellate Division Case Number assigned to each such appeal. Where appropriate, indicate whether there is any related action or proceeding now in any court of this or any other jurisdiction,and ifso, thestatus of the case: Commenced by: ¡ Order to Show Cause ¡ Notice of Petition O Writ of Habeas Corpus Date Filed: Statute authorizing commencement of proceeding in the Appellate Division: Court: Choose Court County: Choose Countv Judge (name infull): Order of Transfer Date: Court: Choose Court County: Choose Countv Judge (name infull): Dated: Description: Ifan appeal, brieflydescribe the paper appealed from. Ifthe appeal is from an order, specify the relief requested and whether the motion was granted or denied. Ifan original proceeding commenced inthis court or transferred pursuant to CPLR 7804(g), briefly describe the object of proceeding. If anapplication under CPLR 5704, brieflydescribe the nature of the ex parte order to be reviewed. Plaintiffappeals from the lower courfs order that denied theirmotion for Renewal. Pursuant to CPLR 2221 for Renewal of Plaintiff'sMotion of June 23, 2020 for Summary Judgment in favor of Plaintiff and against Defendant Cornerstone Builders NY, LLC and upon Renewal granting Plaintiff Summary Judgment. InformationalStatement - Civil 4 of 14 FILED: KINGS COUNTY CLERK 10/20/2022 04:01 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 10/20/2022 Issues: Specify the issues proposed to be raised on the appeal, proceeding, or application for CPLR 5704 review, the grounds for reversal, or modification to be advanced and the specific reliefsought on appeal. Did the Court below, to the extent that itdenied Renewal, and thereby denied Plaintiff's Motion for Summary Judgment, err in finding that Renewal would not be granted, thereby denying Plaintiff's Motion for Summary Judgment? Party Information Instructions: Fillinthe name of each party to the action or proceeding, one name per line. Ifthis form is tobe filedfor an appeal, indicate the status of the party inthe court of original instance and his,her, or itsstatus inthis court, if any. If this form is tobe filedfor a proceeding commenced in this court, fill in only the party's name and his,her, or itsstatus inthis court. No. Party Name Original Status Appellate Division Status 1 Robert Zaborski 3|aintiff 5 Appellant 5 2 MB LorimerLLC Defendant 5 Respondent 5 3 DornerstoneBuilders NY, LLC Defendant 4 Mew York Builders of Stairs, Inc. Defendant 5 Respondent 5 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 InformationalStatement - Civil 5 of 14 FILED: KINGS COUNTY CLERK 10/20/2022 04:01 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 10/20/2022 Instructions: Fillinthe names of the attorneys or firms for the respective parties. If this form is tobe filed with the notice of petition or order to show cause by which a special proceeding is tobe commenced in theAppellate Division, only the name of the attorney for the petitioner need be provided. Inthe event that a litigantrepresents herself or Se" himself, the box marked "Pro must be checked and the appropriate information for that litigantmust be supplied in the spaces provided. Attorney/Firm Name: The Platta Law Firm, PLLC Address: 42 Broadway, Suite 1927 City: New York State: New York Zip: 10004 Telephone No: 212-514-5100 E-mail Address: ek@plattalaw.com Attorney Type: Retained ¡ Assigned ¡ Government ¡ Pro Se ¡ Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above): Attorney/Firm Name: Traub LiebermanStrausand Shrewsberry,LLP Address: Mid-WestchesterExecutivePark, Seven Skyline Drive City:Hawthorne State: New York Zip:10532 Telephone No: 914-347-2600 E-mail Address:nboeckle@tisslaw.com Attorney Type: B Retained ¡ Assigned O Government ¡ Pro Se ¡ Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above): Attorney/Firm Name: Pillinger Miller Tarallo, LLP Address: 555 TaxterRoad, 5th Floor City:Elmsford State:NY Zip: 10523 Telephone No: 914-703-6300 E-mail Address: twhite@pmtlawfirm.com Attorney Type: M Retained ¡ Assigned ¡ Government ¡ Pro Se O Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above): Attorney/Firm Name: Address: City: State: Zip: Telephone No: E-mail Address: Attorney Type: ¡ Retained ¡ Assigned ¡ Government O Pro Se ¡ Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above): Attorney/Firm Name: Address: City: State: Zip: Telephone No: E-mail Address: Attorney Type: O Retained O Assigned ¡ Government O Pro Se ¡ Pro Hac Vice Party or PartiesRepresented (set forthparty number(s) from table above): Attorney/Firm Name: Address: City: State: Zip: | Telephone No: E-mail Address: Attorney Type: O Retained O Assigned O Government O Pro Se ¡ Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above): InformationalStatement - Civil 6 of 14 FILED: KINGS COUNTY CLERK 10/20/2022 04:01 PM INDEX NO. 504273/2017 NYSCEF INDEX NO. 504273/2017 FILED: DOC. NO. KINGS 120 COUNTY CLERK 10 12 2022 89: 83 RECEIVED NYSCEF: 10/20/2022 NYSCEF DOC. NO. 118 RECEIVED NYSCEF: 10/12/2022 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, on the 11th day of October, 2022. P R E S E N T: HON. DEBRA SILBER, Justice. - - .. - - . .. - _ . - - .. - - -.- - _ -- - - . . -. . . - - -. X ROBERT ZABORSKl, DECISION/ORDER Plaintiff, Index No. 504273/17 - against - Motion Sequence No. 5 MB LORIMER LLC and CORNERSTONE BUILDERS NY LLC, Defendants. ..-.-....-_.- _.-.....---- - _ _.- . - -- -. x CORNERSTONE BUILDERS NY LLC, Third-Party Plaintiff, -against- NEW YORK BUILDER OF STAIRS, INC., Third-Party Defendant. .........-----..-- _ - -_..- _--. _ _ - -- - -x The following e-filed papers read herein: NYSCEF Doc. Nos. Notice of Motion/Cross Motion and Affidavits (Affirmations) Annexed 89-105 Opposing Affidavits (Affirmations) 106-108: 110-1 13 Reply Affidavits (Affirmations) 1 14-1 17 This action arises from a work-related accident which took place in 2016. The action was commenced in 2017 and is now on the trial calendar. 1 of 9 7 of 14 FILED: KINGS COUNTY CLERK 10/20/2022 04:01 PM INDEX NO. 504273/2017 NYSCEF INDEX NO. 504273/2017 FILED: DOC. NO. KINGS 120 COUNTY CLERK 10 12 2022 29:83 RECEIVED NYSCEF: 10/20/2022 NYSCEF DOC. NO. 118 RECEIVED NYSCEF: 10/12/2022 Upon the foregoing papers, plaintiff Robert Zaborski moves in motion sequence five for leave to renew and reargue the court's decision dated March 1, 2021. After virtual oral argument, leave is denied. In the court's prior decision, on Motion Seq. #3 and #4, the court denied plaintiff Zaborski's partial summary judgment motion against defendant/third-party plaintiff Cornerstone on the issue of liability under Labor Law § 240 (1), and granted third-party defendant NY Builder's cross motion for summary judgment solely to the extent that plaintiff's Labor Law § 241 (6) claim was dismissed, and was otherwise denied. On May 19, 2022, plaintiff filed the instant motion. The branch of the motion for leave to renew states that it isbased on newly discovered evidence that could not have been included in the prior motions. Specifically, plaintiff's attorney claims "in November 2021, Plaintiff happened to encounter a former coworker, Miroslaw Sztark, on a street near his home; as set forth here, this was the first time that Plaintiff had seen Mr. Sztark since the accident. In talking, Plaintiff learned that Mr. Sztark lived near him, and that he had witnessed the accident . . . Prior to this chance encounter, Plaintiff had no contact Sztark" information for Mr. [affirmation Doc 91 17]. Plaintiff claims that "until recently, I did not know that Miroslaw Sztark was either inside the building when my accident it" occurred or that he witnessed [Affidavit Doc 92 14]. At his EBT, plaintiff testified that he was employed by third-party defendant NY Builder of Stairs and was engaged in the installation of a staircase at the time of his accident. On the day of his accident, there were four employees of NY Builder of Stairs at the job site, including himself. He testified that after his accident, Miroslaw Sztark, whom a of 9 8 of 14 FILED: KINGS COUNTY CLERK 10/20/2022 04:01 PM INDEX NO. 504273/2017 NYSCEF INDEXNYSCEF: NO. 504273/2017 FILED: DOC. NO. KINGS 120 COUNTY CLERK 10/12/2022 R9:83 AN| RECEIVED 10/20/2022 NYSCEF DOC. NO. 118 RECEIVED NYSCEF: 10/12/2022 "Merek" he refers to as came to his assistance [Doc 102 Page 7]. Now,he avers that he did not know that this co-worker witnessed his accident. He offers an affidavit from the co- worker, an affidavit from himself, and an affidavit from an engineer, James Pugh. In his prior motion for summary judgment, plaintiff did not submit an affidavit from an engineer. "new" Plaintiff claims that upon granting him leave to renew and reviewing this evidence, the court should grant plaintiff summary judgment on his Labor Law 240(1) claim. Third-party defendant opposes the motion and argues that "Plaintiff's instant motion to renew is simply seeking a second bite of the apple by a plaintiff who has not exercised presentation" due diligence in making his first factual [Doc 110 14]. He continues "Plaintiff's own deposition testimony establishes that plaintiff had full knowledge (or should have known) that Mr. Sztark was a witness to his alleged accident before his prior motion. Specifically, plaintiff testified that Mr. Sztark was one of four (4) employees (including himself) working on the staircase at the time of the accident, that Mr. Sztark was present when his accident occurred, and that Mr. Sztark came to plaintiff's assistance immediately after the accident. Plaintiff offers no reason why he failed to exercise due diligence in locating Mr. Sztark, a known witness to his accident, to obtain his Affidavit or motion." testimony, prior to his original Further, counsel points out [¶7] "Nor has plaintiff cited to any reasonable justification for his failure to submit the Expert Affidavit of Mr. Pugh on the prior motion. In fact, plaintiff's motion to renew offers no justification whatsoever for his failure to submit expert evidence on the prior motion. Plaintiff does not make a single argument as to why expert evidence was not submitted with his original papers." motion S of 8 9 of 14 FILED: KINGS COUNTY CLERK 10/20/2022 04:01 PM INDEX NO. 504273/2017 NYSCEF INDEX NO. 504273/2017 FILED: DOC. NO. KINGS 120 COUNTY CLERK 10 12 2022 29:83 RECEIVED NYSCEF: 10/20/2022 NYSCEF DOC. NO. 118 RECEIVED NYSCEF: 10/12/2022 Defendant Cornerstone Builders also opposes the motion, and their counsel argues that "For the reasons set forth in the accompanying counter statement of facts and Memorandum of Law, the Defendant, Cornerstone Builders, respectfully requests that this entirety" Court deny the Plaintiff s Motion to Renew summary judgment in its [Doc 106 19]. The memo of law points out that "The testimony elicited by Plaintiff in this case establishes that Plaintiff knew of Merek's existence on the jobsite since the date of the 2016." accident in Counsel elaborates "Plaintiff commenced this action in 2017, while Merek was still working for New York Builder of Stairs, Inc. In this regard, Merek's whereabouts were known and a statement could have been obtained accordingly. Should reasonable justification be found here, it would open the door for future Plaintiffs to be excused from due diligence in investigating their claim. Plaintiff cannot be absolved of his duty to have sought out a statement from Merek when he knew his involvement from the beginning." very The court notes that Document 72 in the court file, e-filed on May 15, 2020, is a copy Workers' of the plaintiff's Compensation Employee Claim Form, signed by plaintiff on August 2, 2016, which states that the accident occurred on July 18, 2016, and in answering happen?" Szlark." question D(11) "Did anyone see your injury plaintiff answered "Mirek In general, a motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination and must set forth a reasonable justification for the failure to present such facts on the prior motion (see Worrell v. Parkway Estates, LLC, 43 AD3d 436, 437, 840 N.Y.S.2d 817; Heaven v. McGowan, 40 AD3d 583, such" 586, 835 N.Y.S.2d 641). A motion to renew "shall be identified specifically as (CPLR 4 of 9 10 of 14 FILED: KINGS COUNTY CLERK 10/20/2022 04:01 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 120 RECEIVED INDEX NO. NYSCEF: 504273/2017 10/20/2022 |FILED: KINGS COUNTY CLERK 10 /12/2022 B9 : 83 AM) NYSCEF DOC. NO. 118 RECEIVED NYSCEF: 10/12/2022 2221(e)(1)). A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation (see Worrell v. Parkway Estates, LLC, 43 AD3d at 437, 840 N.Y.S.2d 817; Renna v. Gullo, 19 AD3d 472, 797 N.Y.S.2d 115). Indeed, the Supreme Court lacks discretion to grant renewal where the moving party omits a reasonable justification for failing to present the new facts on the original motion (see Worrell v. Parkway Estates, LLC, 43 AD3d at 437, 840 N.Y.S.2d 817; Greene v. New York City Hous. Auth., 283 AD2d 458, 459, 724 N.Y.S.2d 631). Here, the justification proffered, that plaintiff could not have previously located his co-worker, Mr. Sztark, is not supported by the facts in the record. Mr. Sztark's affidavit asserts that he was employed by the company for more than 15 years and did not leave the company to change jobs until 2018. Plaintiff listed him as the only witness to his accident Workers' on his Compensation claim just weeks after the accident. Thus, the court finds that plaintiff has failed to make the necessary showing to support the request for leave to renew (see Chiarella v Quitoni, 178 AD2d 502, 577 N.Y.S.2d 429 [2d Dept 1991] ["Generally, a motion to renew must be based upon newly-discovered material facts or evidence which existed at the time that the prior motion was made but which were unknown renewal" to the party seeking (emphasis added)]). Thus, movant has not established that the evidence" "new was not available at the time he made his original motion. In any event, the evidence" "new would not have changed the outcome of the motion, as the plaintiff's witness' motion was denied due to the factual issues in dispute. The affidavit would not have changed the prior determination. The new engineer's report certainly may not be S of 8 11 of 14 FILED: KINGS COUNTY CLERK 10/20/2022 04:01 PM INDEX NO. 504273/2017 NYSCEF INDEX NO. 504273/2017 FILED: DOC. NO. KINGS 120 COUNTY CLERK 10 12 2022 89:83 RECEIVED NYSCEF: 10/20/2022 NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 10/12/2022 considered. There is no explanation for obtaining an engineer for the first time for this motion to renew. The other branch of the motion seeks leave to reargue the court's determination granting third-party defendant NY Builder of Stairs summary judgment dismissing the plaintiff's Labor Law §241(6) claim. However, there is not one word addressed to this branch of the motion in the affirmation in support. Therefore, leave to reargue must be denied. parties' The next in person appearance in JCP is on February 1, 2023. It appears that is intended to be a date to commence jury selection, from the notes in the court's computer records. The foregoing constitutes the decision and order of the court. E N T E Hon. Debra Silber, J.S.C. 8 of 8 12 of 14 FILED: KINGS COUNTY CLERK 10/20/2022 04:01 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 10/20/2022 AFFIDAVIT OF SERIVCE STATE OF NEW YORK ) ) s.s.: COUNTY OF NEW YORK ) KASSANDRA MARIN, being duly sworn, deposes and says: That affiant is not a party to this action and is over the age of 18 years and resides in Queens County, New York. That on October 20, 2022, affiant served the within NOTICE OF APPEAL, DECISION and ORDER upon the defendant(s) and/or attorney(s) for defendant(s) by depositing a true copy of same securely enclosed in a postpaid wrapper in a post office, official depository under the exclusive care and custody of the United States Postal Service within the State of New York, directed to said individuals or offices as follows: Traub Lieberman Straus and Shrewsberry, LLP Mid-Westchester Executive Park Seven Skyline Drive Hawthome, New York 10532 Pillinger Miller Tarallo, LLP 502 555 Taxter Road, Floor Elmsford, New York 10523 that being the respective address within the State designated by them for that purpose upon the preceding papers in this action, or the respective places where they kept an office, between which places there then was and now is a regular communication by mail. KASSAND MARIN Sworn to before me this O t er 20, 2022 RY PUBLIC Melissa Gonzalez Tobar Nota Public,State of New York 01G06406539 Qua Queens ..d in County Expires March 30, 2024 Commission 13 of 14 FILED: KINGS COUNTY CLERK 10/20/2022 04:01 PM INDEX NO. 504273/2017 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 10/20/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS --------------------------------------------------------------------X Index No.: 504273/2017 ROBERT ZABORSKI, Plaintiff, -against- MB LORMIER LLC and CORNERSTONE BUILDERS NY LLC, Defendants. --------------------------------------------------------------------Ç CORNERSTONE BUILDERS NY, LLC, Third-Party Plaintiff, -against- NEW YORK BUILDER OF STAIRS, INC., Third-Party Defendant. -------------------------------------------------------------------Ç NOTICE OF APPEAL THE PLATTA LAW FIRM, PLLC Attorneys for: Plaintiff 42 Broadway, Suite 1927 New York, New York 10004 (212) 514-5100 The undersigned attorney hereby certifies, pursuant to 22 NYCRR 130-1.1-a that he/she has read the within papers and that same are not frival u a term is defined in 22 NYCRR 130- 1.1(c). MICHÆÈ TA Service of a copy of the within is hereby admitted. Dated, Attorney(s) for PLEASE TAKE NOTICE: O NOTICE OF ENTRY that the within is a (certified) true copy of an Order duly entered in the office of the clerk of the within named court on 20 . O NOTICE OF SETTLEMENT that an Order of which the within is a true copy will be presented for settlement to the Honorable Justice one of the judges of the within named Court, on 20____ at O'clock ___.M. Dated: October 20, 2022 Yours, etc. THE PLATTA LAW FIRM, PLLC 14 of 14