Preview
FILED: KINGS COUNTY CLERK 10/06/2022 02:09 PM INDEX NO. 513009/2018
NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 10/06/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
____________________---------____---_______Ç
WILMAN FERNANDEZ-VELAYARSE, Index No. 513009/2018
Plaintiff,
-against- AFFIRMATION IN
SUPPORT OF
CLARKSON BU LLC and PLAINTIFF'S MOTION
DAWNY CONSTRUCTION LTD. FOR PARTIAL SUMMARY
JUDGMENT UNDER
Defendants LABOR LAW
---------------------------------------------------------- SECTION 240(1)
CLARKSON BU LLC and
DAWNY CONSTRUCTION LTD.
Third Party Plaintiffs
-against
MAGELLAN CONCRETE STRUCTURES CORP.,
Third Party Defendant.
_____----------------------_______---______Ç
BRIAN S. BRANDMAN, an attorney duly admitted to practice before the
Courts of the State of New York, deposes and states as follows, upon information and
belief, under the penalties of perjury:
1. I am a principal of the law firm of PONTISAKOS & BRANDMAN
PC, attorneys for the Plaintiff herein, and as such, I am fully familiar with the facts and
circumstances of this matter, the source of my knowledge being the filemaintained in my
office.
2. I submit this affirmation in support of the Plaintiff's motion for
partial summary judgment on the issue of liability under the New York State Labor Law,
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Sections 240(1) against the property owner, Defendant CLARKSON BU LLC
("CLARKSON') and its general contractor, Defendant DAWNY CONSTRUCTION LTD.
3. In his Affidavit and in undisputed deposition testimony annexed
hereto as Exhibits A and B, respectively, Plaintiff Wilman Fernandez-Velayarse explains
that, while working at a building under construction, his foreman assigned him to place
wood planks to create the floor of a form where a new concrete floor would be poured and
that, while doing that work, he feltsomething underneath him move, causing him to fall to
the concrete floor below. He suffered severe injuries and was taken by ambulance Kings
County Hospital, where he remained for twenty days; he has had extensive medical
treatment, including multiple surgeries, since. There is no dispute that when he fell,he was
wearing a safety harness with no lanyard. His Affidavit and deposition testimony states
that he was told that there were no available tielines and he was told to work without one.
4. This accident was documented, with photos of EMTs treating him
and removing him from the scene (Exhibit C) as well as an accident report (Exhibit D) that
was prepared by an equipment manager, Heloy Netto, who was not produced for a
deposition.
5. Plaintiff's unrefuted testimony that he fell off an unguarded beam
that moved and that he was not given a tie line for his safety harness, gives rise to liability
under the New York State Labor Law, Section 240(1), as against the property owner and
its general contractor. Doto v. Astoria Energy II,LLC, 129 A.D.3d 660, 11 N.Y.S.3d 201
(2nd Dept. 2015); Hernandez v. 767 Fifth Partners, 94 A.D.3d 649, 144 N.Y.S.3d 559 (1st
Dept. 2021). Itis apparent that the post and beam he fell from did not afford adequate
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protection against this fall (Hernandez, supra) and that the harness, with no tieline, could
not and did not afford any protection when the worker began his fall off the beam.
6. The Construction Contract, attached hereto as Exhibit E, establishes
that Defendant CLARKSON owned the subject property and hired Defendant DAWNY
CONSTRUCTION to serve as the General Contractor, consenting to allow DAWNY to
assume those duties from its predecessor, Dvir Mog Construction in November, 2017.
Exhibit E page 1.
7. The Summons and Complaint is annexed hereto as Exhibit F. The
Defendants'
Answers are annexed as Exhibits G and H. The Bill of Particulars is annexed
as Exhibit I. The Note of Issue was filed on August 11, 2022 and this motion is,
accordingly, timely.
THE PLAINTIFF'S DEPOSITION TESTIMONY
8. Plaintiff testified he was injured while working for the Third Party
Defendant MAGELLAN at a construction site at 77 Clarkson in Brooklyn, where a new
apartment building was being erected. Exhibit B Page 19. He had worked for this company
since 2014 (page 12), having been promoted from a helper to being in charge of the
blueprints. Page 14 to 15.
9. He had been working at the 77 Clarkson project for approximately
two weeks before his accident (Page 18-19) during which time his job was to read the
blueprints and make markings so that the carpenters would know what to do. Page 20 line
4-9. Before the day of the accident, he had not done any manual labor at this site. Page 24
line 14.
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10. When he first began working at 77 Clarkson, its third floor had
already been constructed (Page 19) and Magellan had a crew of 35-40 people working,
with one foreman, Paulo Andre. Page 20 line 21 and page 24 line 8. There was also an
equipment manager, Eloy [now known to be Heloy Netto] who was "in charge of the
for."
harness or the tools that you would ask Page 32 line 8.
11. There was a dearth of fall arrest protection at this jobsite, with more
workers than available harnesses and tie lines. "Sometimes you would ask for the
harnesses and they wouldn't be available. So they would just say you have to either go to
you."
work or you can just go home. Either way it isup to Page 33 line 4. Plaintiff chose
to work without the tie line because he needed the job. Page 116 line 11.
12. On the day of the accident, "they did give me a harness, but itdidn't
it."
have the line, and when I asked them for it,they said they didn't have Page 32 line 3
see also Page 113 line 10-24; page 35 line 16.
13. Even though there were no available tie lines (page 35 line 16; page
113 line 10), the workers were told to wear a harness while working to avoid getting cited
for an OSHA violation. Page 37 line 12.
14. When, on previous occasions, he had complained to Paulo about the
inability to tie off, Paulo told him "just to dedicate myself to working. That there was no
that."
time for Page 38 line 7; see also lines page 115 line 8. Paolo told him "there weren't
work."
any and to just Page 116 line 3.
15. Plaintiff testified that on the accident date, he worked with the
blueprints, marking the building until lunchtime, but after lunch Paolo assigned him to a
different type of work (Page 40 line 8): to help close the floor of the next level where
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concrete would be poured (page 42 line 12 to page 43 and page 44), by cutting and placing
2x4 wood pieces on the beams, creating the wooden floor of the form for the concrete that
would be poured to create the fifth floor. Page 48. It was his firsttime doing this type of
work (Page 46 line 2) and foreman Paolo showed him how to do it.Page 59 line 22 to page
60.
16. The fifth level was under construction, so that a plywood flooring
was only partially in place, and the Plaintiff was assigned to create the flooring in an open
area. Page 66 line 10. Andre instructed him to put the 2x4s on top of the horizontal beams,
and plywood would later be placed on top. Page 67 line 6. He had placed two 2x4s and was
in the process of placing the third when he fell.Page 68 line 2. He explained, "I walked on
fell."
top of the beam and then that post moved and that is when I Page 71 line 3. He stated
that, while doing this work, there would have been no place for him to tie a lanyard, if he
had one. Page 36-37.
17. Ambulance personnel removed him from the scene and took him to
Kings County Hospital, where the equipment manager Heloy Netto brought him an
accident report. "He came over to me while I was in the hospital with a report and he told
arm."
me to sign something , but I was unable to because I couldn't use this Page 129 line
3. He did not read the report that Eloy had prepared: "I didn't even get a chance to look at
it."
Page 129 line 17.
TESTIMONY OF DAWNY MARTINEZ
18. DAWNY MARTINEZ testified on behalf of the owner, Defendant
CLARKSON BU LLC and its general contractor, Defendant DAWNY CONSTRUCTION
LTD. (Transcript annexed as Exhibit J, see cover page).
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19. Martinez acknowledged that on the accident date, CLARKSON
owned, and DAWNY was the General Contractor at, 77 Clarkson Avenue (Page 29 line 8-
12), where a seven story building was being built (page 27 line 17 to page 28 line 23)
pursuant to a contract between Defendant DAWNY and Defendant CLARKSON. (Page
30 line 21; copy of contract is attached hereto as Exhibit E). DAWNY CONSTRUCTION,
with the approval of owner CLARKSON, hired Plaintiff's employer, Third Party
Defendant MAGELLAN. Page 39 line 2. In fact, Martinez testified that his company
subcontracted out allof the work associated with this construction project. Page 79 line25.
20. Martinez testified that during the work he visited the site three to
five days a week. Page 45 line 7. The main purpose of these visits was to make safety
checks. Page 55 line 9. He was not on site at the time of the accident and instead heard
about itvia a telephone call (Page 44 line 24) from his safety manager, Jeffrey Collins.
Page 62 line 19. He did not know of any witnesses to the accident. Page 78 line 10.
21. Martinez testified that as DAWNY's Safety Manager, Jeffrey
Collins was responsible for making sure that safety equipment such as harnesses and
lanyards were not only provided by the subcontractor Magellan, but also that they were
used by itsworkers. Page 48 line 18. Collins was DAWNY's employee. Page 22.
22. Nevertheless, Martinez acknowledged that Safety Manager Collins
was not required and did at the construction siteall - Collins would
to, not, stay day instead,
safety"
"enforce by checking the site at the beginning of the day and he would not remain
at the site after his initial inspection. Page 47 line 5 to page 48. Thus when the Plaintiff was
assigned after lunch (Exhibit B page 40 line 8) to work above the highest beams, laying
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the wood for the floor of a concrete form without a lanyard, Collins was likely not on site
to see and correct that violation. Notably, Collins has not given deposition testimony.
23. Martinez, who acknowledged that "if I was a witness to a worker
job"
without a harness or hard hat, I would remove them from the (page 50 line 11) frankly
acknowledged that he did not know whether the Plaintiff had been assigned a lanyard and
told to tie itoff before his fall and injury. Page 73 line 22 to page 74.
TESTIMONY OF PAULO ANDRE
ON BEHALF OF THIRD PARTY DEFENDANT MAGELLAN
24. Paulo Andre, who testified on behalf of the Plaintiff's employer,
Third Party Defendant MAGELLAN (Transcript annexed as Exhibit K), acknowledged
that Fernandez-Velayarse had fallen a distance of eight to ten feet (page 31 line 23 to page
32) while working without being tied off with a safety lanyard. Page 31 line 14. He
acknowledged the photos showed the injured Plaintiff where he landed after falling from
above. Page 83 line 18.
25. Beyond that, Martinez had no relevant information about the
Plaintiff's accident: he did not know where he was or what he was doing on the accident
date (Page 28) or what Plaintiff was doing (page 38). Stating "I really don't remember
happened"
exactly how it (page 31 line 13), Andre acknowledged he would have been the
one to assign Plaintiff his work (page 77 line 5) and he testified that he had no memory of
checking on him before the accident. Page 77 line 12.
26. Similarly, Andre testified that he had no memory of filling out the
accident report (Page 74), explaining that his company's equipment supervisor Heloy Netto
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filled out various parts of the accident report which he then reviewed and signed (page 72
line 10), and he stated that everything in the report is based on a witness account, but he
did not recall the name of the witness. Page 69 to page 70 line 17.
27. Andre testified that Heloy Netto was a site supervisor (page 48 line
3) who was responsible for issuing Magellan's workers their safety gear. Page 17-18 and
page 54 line 17. Heloy kept a record of who he issued gear to (page 52 line 14) and he
would collect itat the end of the work day. Page 53 line 3. It was Heloy's job to walk the
job to make sure the workers were using lanyards and harnesses, particularly when framing
the floors. Page 54 line 17-22.
28. To the extent that Andre agreed with the accident report's claim that
the Plaintiff refused to tie off, he also acknowledged that he had no direct knowledge about
how many lanyards were available for the workers on the accident date, and was only
relying on Heloy's claim that there were enough lanyards for all the workers on the accident
date. Page 63 line 22 to page 64. Notably, the equipment assignment logs that Andre
testified Heloy kept have not been produced.
29. Although Andre testified that the Plaintiff had been warned before
the accident about working without a safety harness, he recalled no particulars about that
alleged prior incident (page 57 to 62).
POINT I:
PLAINTIFF IS ENTITLED TO PARTIAL
SUMMARY JUDGMENT AGAINST THE OWNER AND GC
ON THE ISSUE OF LIABILITY UNDER
LABOR LAW SECTION 240 (1)
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30. The Plaintiff's unrebutted testimony, describing his fall from an
unguarded beam that moved when he stepped on it,and his testimony that he was assigned
to work at the height with no safety lanyard being available for his use, establishes the
Defendants' 240(1)1
violation of the New York State Labor Law, Section and warrants
partial summary judgment in his favor on the issue of liability under that statute. Yaucan
v. Hawthorne Vill., LLC, 155 A.D.3d 924, 925, 63 N.Y.S.3d 721, 722 (2nd Dept. 2017).
31. As stated in Doto v. Astoria Energy II,LLC, 129 A.D.3d 660, 11
N.Y.S.3d 201 (2nd Dept. 2015), a Plaintiff establishes proof of a 240 violation "by
submitting evidence demonstrating that the defendants failed to provide him with an
injuries."
adequate safety device, and that such failure was a proximate cause of his Id.
32. In this case, Plaintiff was assigned to work on an unfinished,
unguarded deck and beam, he testified that to place additional wood on the floor he needed
to step on the unguarded beam, and that when he did, its post moved and he fell(Exhibit
B page 66-67 and page 71 line 3). The deck, beam, and post were all inadequate safety
devices for this dangerous elevated work, and the safety harness he wore offered no
protection at all,there being no lanyard attached (Exhibit B page 32 line 3)and no place to
tie off a lanyard, had one been issued (Exhibit B page 36-37).
33. Any defense claim that this Plaintiff was a recalcitrant worker who
refused available safety devices must fail, because there is no proof that the Plaintiff
refused to use an available safety device. Indeed, Magellan's witness Paulo Andre testified
1
1. Allcontractors and owners and their agents . . . in
the erection,demolition, repairing, altering,
painting, cleaning orpointing of a building or structureshallfurnish or erector cause to be furnished or
erected forthe perfonnance ofsuch labor,scaffolding,hoists,stays, ladders,slings,hangers, blocks,
pulleys, braces,irons,ropes, and other devices which shallbe so constructed, placed and operated as to
give proper protectionto a person so employed.
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he only assumed there were an adequate number of lanyards available on the sitethat day
based on what his equipment manager told him. Exhibit K Page 63 line 22 to page 64.
Although the equipment manager maintained equipment logs (Andre deposition Exhibit K
page 52 line 14), none have been produced to date.
34. Moreover, there is no evidence disputing Plaintiff's testimony that
when he stepped out onto the beam, he felt its post move causing him to fall off, and the
lack of guards and safety line meant that as he fell,there was nothing to stop him from
plummeting to the cement floor below. In other words, if the Court were to accept the
accident reports alleged, unproven claim that the worker refused to tie off, the defective
post, the unguarded beam, and the lack of guard rails were all statutory violations and
proximate causes of the Plaintiff's substantial fall and serious injuries as well; any action
by the worker could not be the accident's sole proximate cause. Birbillis v. Rapp, 205 A.D.
(2nd
2d 569 Dept. 1994), Danielewski v. Kenyon Realty Co., 2 A.D.3d 666, 770 N.Y.S.2d
97 (2nd Dept. 2003). Inasmuch as each of these defects violated the absolute liability
statute, summary judgment in Plaintiff's favor is warranted and the recalcitrant worker
defense is unavailable. Doto, supra.
35. Defendant CLARKSON BU LLC's liability as the property owner
under the New York State Labor Law, Section 240 is statutory and absolute regardless of
itsknowledge or control over the worksite because ownership, rather than knowledge about
the work or even the contracts, gives rise to an owner's liability under the New York State
Labor Law. Coleman v. City of N.Y., 91 N.Y.2d 821, 666 N.Y.S.2d 553, 689 N.E.2d 523
(1997); see also Costa v. State of N.Y., 141 A.D.3d 43, 32 N.Y.S.3d 147 (1st Dept. 2016);
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Pineda v. 79 Barrow St. Owners Corp., 297 A.D.2d 634, 747 N.Y.S.2d 236 (2nd Dept.
2002).
36. Defendant DAWNY is also absolutely liable under the statute in its
role as the owner's general contractor, there being no evidence that any other entity was
workers'
hired to be responsible for the safety at thisjobsite. See eg Martinez deposition
transcript, Exhibit J page 22, stating that Jeffrey Collins, the site safety manager, was
DAWNY's employee. Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311, 318, 445
N.Y.S.2d 127, 130, 429 N.E.2d 805, 808 (1981)
prevent"
37. Labor Law Section 240(1) "was designed to accidents
where a worksite's protective devices "proved inadequate to shield the injured worker from
person."
harm directly flowing from the application of the force of gravity to an object or
Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 601 N.Y.S.2d 49, 618 N.E.2d 82
(1993).
38. The Plaintiff's that there were no lanyards or other fall-
testimony
arrest devices available for him to attach to a safety harness, and that there was no place to
tieoff ifhe had been given a lanyard, and that he fell when the post of the unguarded beam
he stepped on moved, establishes that he was not afforded adequate protection against the
gravity-related hazard of a fall from his elevated workplace, and that he was injured
because of that inadequate protection. His testimony establishes his entitlement to the
absolute liability provisions of Labor Law Section 240. There is no valid legal defense.
The motion for partial summary judgment on theissue of liability under Labor Law Section
240(1) must be granted.
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WHEREFORE it is respectfully requested that the Court grant the
Plaintiff's Motion in itsentirety, and grant such other and further relief as it may deem just
and proper.
Dated: Garden Ci ,NY
October 2022 TO
BRIAN S. BRANDMAN
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WORD COUNT CERTIFICATION
I certify pursuant to pursuant to Section 202.8-b of the Uniform Rules for Civil
Courts that the foregoing was prepared with a computerized word processing
program.
The total number of words in the document, including headings and footnotes
and excluding caption, the table of contents, and signature block is 3147,
conforming with the word count limit for such document.
Dated: Brooklyn, NY
October , 2022
BRIAN S. BRANDMAN
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NYSCEF DOC. NO. 68 PONTISAKOS & P.C.
RECEIVED NYSCEF: 10/06/2022
BRANDMAN,
Index No.: 513009/18
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
WILMAN FERNANDEZ-VELAYARSE,
Plaintiff,
- against -
CLARKSON BU LLC and
DAWNY CONSTRUCTION LTD,
............_________________________________________________________________Ç
CLARKSON BU LLC and DAWNY CONSTRUCTION LTD,
Third-Party Plaintiffs,
-against-
MAGELLAN CONCRETE STRUCTURES CORP.,
Third-Party Defendant.
NOTICE OF MOTION FOR PARTIAL SUMMERY JUDGMENT ON LIABILITY
UNDER LABOR LAW SECTION 240(1) AND SUPPORTING DOCUMENTS
PONTISAKOS & BRANDMAN, P.C.
Attorneys for Plaintiff(s)
600 Old Country Road, Suite 323
Garden City, New York 11530
(516) 683-8888
To:
Attorney(s) for
Serviceof a copyof the within is hereby admitted.
Dated:
...............................
Attorney(s) for
Sir:Please take notice
NOTICE OF ENTRY
thatthe within is a (certified)
true copy of a
entered in theofficeof theClerk of the within named
Court on 19 .
NOTICE OF SETTLEMENT
that an Order of which the within is a true
copy will be
presented to theHon. , one ofthe
judges ofthe within named Court, at
on
Dated:
PONTISAKOS & BRANDMAN, P.C.
Attorneys for Plaintiff(s)
600 Old Country Road, Suite 323
Garden City, New York 11530
(516) 683-8888
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Preview
FILED: KINGS COUNTY CLERK 10/06/2022 02:09 PM INDEX NO. 513009/2018 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 10/06/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ____________________---------____---_______Ç WILMAN FERNANDEZ-VELAYARSE, Index No. 513009/2018 Plaintiff, -against- AFFIRMATION IN SUPPORT OF CLARKSON BU LLC and PLAINTIFF'S MOTION DAWNY CONSTRUCTION LTD. FOR PARTIAL SUMMARY JUDGMENT UNDER Defendants LABOR LAW ---------------------------------------------------------- SECTION 240(1) CLARKSON BU LLC and DAWNY CONSTRUCTION LTD. Third Party Plaintiffs -against MAGELLAN CONCRETE STRUCTURES CORP., Third Party Defendant. _____----------------------_______---______Ç BRIAN S. BRANDMAN, an attorney duly admitted to practice before the Courts of the State of New York, deposes and states as follows, upon information and belief, under the penalties of perjury: 1. I am a principal of the law firm of PONTISAKOS & BRANDMAN PC, attorneys for the Plaintiff herein, and as such, I am fully familiar with the facts and circumstances of this matter, the source of my knowledge being the filemaintained in my office. 2. I submit this affirmation in support of the Plaintiff's motion for partial summary judgment on the issue of liability under the New York State Labor Law, 1 of 14 FILED: KINGS COUNTY CLERK 10/06/2022 02:09 PM INDEX NO. 513009/2018 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 10/06/2022 Sections 240(1) against the property owner, Defendant CLARKSON BU LLC ("CLARKSON') and its general contractor, Defendant DAWNY CONSTRUCTION LTD. 3. In his Affidavit and in undisputed deposition testimony annexed hereto as Exhibits A and B, respectively, Plaintiff Wilman Fernandez-Velayarse explains that, while working at a building under construction, his foreman assigned him to place wood planks to create the floor of a form where a new concrete floor would be poured and that, while doing that work, he feltsomething underneath him move, causing him to fall to the concrete floor below. He suffered severe injuries and was taken by ambulance Kings County Hospital, where he remained for twenty days; he has had extensive medical treatment, including multiple surgeries, since. There is no dispute that when he fell,he was wearing a safety harness with no lanyard. His Affidavit and deposition testimony states that he was told that there were no available tielines and he was told to work without one. 4. This accident was documented, with photos of EMTs treating him and removing him from the scene (Exhibit C) as well as an accident report (Exhibit D) that was prepared by an equipment manager, Heloy Netto, who was not produced for a deposition. 5. Plaintiff's unrefuted testimony that he fell off an unguarded beam that moved and that he was not given a tie line for his safety harness, gives rise to liability under the New York State Labor Law, Section 240(1), as against the property owner and its general contractor. Doto v. Astoria Energy II,LLC, 129 A.D.3d 660, 11 N.Y.S.3d 201 (2nd Dept. 2015); Hernandez v. 767 Fifth Partners, 94 A.D.3d 649, 144 N.Y.S.3d 559 (1st Dept. 2021). Itis apparent that the post and beam he fell from did not afford adequate 2 of 14 FILED: KINGS COUNTY CLERK 10/06/2022 02:09 PM INDEX NO. 513009/2018 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 10/06/2022 protection against this fall (Hernandez, supra) and that the harness, with no tieline, could not and did not afford any protection when the worker began his fall off the beam. 6. The Construction Contract, attached hereto as Exhibit E, establishes that Defendant CLARKSON owned the subject property and hired Defendant DAWNY CONSTRUCTION to serve as the General Contractor, consenting to allow DAWNY to assume those duties from its predecessor, Dvir Mog Construction in November, 2017. Exhibit E page 1. 7. The Summons and Complaint is annexed hereto as Exhibit F. The Defendants' Answers are annexed as Exhibits G and H. The Bill of Particulars is annexed as Exhibit I. The Note of Issue was filed on August 11, 2022 and this motion is, accordingly, timely. THE PLAINTIFF'S DEPOSITION TESTIMONY 8. Plaintiff testified he was injured while working for the Third Party Defendant MAGELLAN at a construction site at 77 Clarkson in Brooklyn, where a new apartment building was being erected. Exhibit B Page 19. He had worked for this company since 2014 (page 12), having been promoted from a helper to being in charge of the blueprints. Page 14 to 15. 9. He had been working at the 77 Clarkson project for approximately two weeks before his accident (Page 18-19) during which time his job was to read the blueprints and make markings so that the carpenters would know what to do. Page 20 line 4-9. Before the day of the accident, he had not done any manual labor at this site. Page 24 line 14. 3 of 14 FILED: KINGS COUNTY CLERK 10/06/2022 02:09 PM INDEX NO. 513009/2018 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 10/06/2022 10. When he first began working at 77 Clarkson, its third floor had already been constructed (Page 19) and Magellan had a crew of 35-40 people working, with one foreman, Paulo Andre. Page 20 line 21 and page 24 line 8. There was also an equipment manager, Eloy [now known to be Heloy Netto] who was "in charge of the for." harness or the tools that you would ask Page 32 line 8. 11. There was a dearth of fall arrest protection at this jobsite, with more workers than available harnesses and tie lines. "Sometimes you would ask for the harnesses and they wouldn't be available. So they would just say you have to either go to you." work or you can just go home. Either way it isup to Page 33 line 4. Plaintiff chose to work without the tie line because he needed the job. Page 116 line 11. 12. On the day of the accident, "they did give me a harness, but itdidn't it." have the line, and when I asked them for it,they said they didn't have Page 32 line 3 see also Page 113 line 10-24; page 35 line 16. 13. Even though there were no available tie lines (page 35 line 16; page 113 line 10), the workers were told to wear a harness while working to avoid getting cited for an OSHA violation. Page 37 line 12. 14. When, on previous occasions, he had complained to Paulo about the inability to tie off, Paulo told him "just to dedicate myself to working. That there was no that." time for Page 38 line 7; see also lines page 115 line 8. Paolo told him "there weren't work." any and to just Page 116 line 3. 15. Plaintiff testified that on the accident date, he worked with the blueprints, marking the building until lunchtime, but after lunch Paolo assigned him to a different type of work (Page 40 line 8): to help close the floor of the next level where 4 of 14 FILED: KINGS COUNTY CLERK 10/06/2022 02:09 PM INDEX NO. 513009/2018 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 10/06/2022 concrete would be poured (page 42 line 12 to page 43 and page 44), by cutting and placing 2x4 wood pieces on the beams, creating the wooden floor of the form for the concrete that would be poured to create the fifth floor. Page 48. It was his firsttime doing this type of work (Page 46 line 2) and foreman Paolo showed him how to do it.Page 59 line 22 to page 60. 16. The fifth level was under construction, so that a plywood flooring was only partially in place, and the Plaintiff was assigned to create the flooring in an open area. Page 66 line 10. Andre instructed him to put the 2x4s on top of the horizontal beams, and plywood would later be placed on top. Page 67 line 6. He had placed two 2x4s and was in the process of placing the third when he fell.Page 68 line 2. He explained, "I walked on fell." top of the beam and then that post moved and that is when I Page 71 line 3. He stated that, while doing this work, there would have been no place for him to tie a lanyard, if he had one. Page 36-37. 17. Ambulance personnel removed him from the scene and took him to Kings County Hospital, where the equipment manager Heloy Netto brought him an accident report. "He came over to me while I was in the hospital with a report and he told arm." me to sign something , but I was unable to because I couldn't use this Page 129 line 3. He did not read the report that Eloy had prepared: "I didn't even get a chance to look at it." Page 129 line 17. TESTIMONY OF DAWNY MARTINEZ 18. DAWNY MARTINEZ testified on behalf of the owner, Defendant CLARKSON BU LLC and its general contractor, Defendant DAWNY CONSTRUCTION LTD. (Transcript annexed as Exhibit J, see cover page). 5 of 14 FILED: KINGS COUNTY CLERK 10/06/2022 02:09 PM INDEX NO. 513009/2018 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 10/06/2022 19. Martinez acknowledged that on the accident date, CLARKSON owned, and DAWNY was the General Contractor at, 77 Clarkson Avenue (Page 29 line 8- 12), where a seven story building was being built (page 27 line 17 to page 28 line 23) pursuant to a contract between Defendant DAWNY and Defendant CLARKSON. (Page 30 line 21; copy of contract is attached hereto as Exhibit E). DAWNY CONSTRUCTION, with the approval of owner CLARKSON, hired Plaintiff's employer, Third Party Defendant MAGELLAN. Page 39 line 2. In fact, Martinez testified that his company subcontracted out allof the work associated with this construction project. Page 79 line25. 20. Martinez testified that during the work he visited the site three to five days a week. Page 45 line 7. The main purpose of these visits was to make safety checks. Page 55 line 9. He was not on site at the time of the accident and instead heard about itvia a telephone call (Page 44 line 24) from his safety manager, Jeffrey Collins. Page 62 line 19. He did not know of any witnesses to the accident. Page 78 line 10. 21. Martinez testified that as DAWNY's Safety Manager, Jeffrey Collins was responsible for making sure that safety equipment such as harnesses and lanyards were not only provided by the subcontractor Magellan, but also that they were used by itsworkers. Page 48 line 18. Collins was DAWNY's employee. Page 22. 22. Nevertheless, Martinez acknowledged that Safety Manager Collins was not required and did at the construction siteall - Collins would to, not, stay day instead, safety" "enforce by checking the site at the beginning of the day and he would not remain at the site after his initial inspection. Page 47 line 5 to page 48. Thus when the Plaintiff was assigned after lunch (Exhibit B page 40 line 8) to work above the highest beams, laying 6 of 14 FILED: KINGS COUNTY CLERK 10/06/2022 02:09 PM INDEX NO. 513009/2018 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 10/06/2022 the wood for the floor of a concrete form without a lanyard, Collins was likely not on site to see and correct that violation. Notably, Collins has not given deposition testimony. 23. Martinez, who acknowledged that "if I was a witness to a worker job" without a harness or hard hat, I would remove them from the (page 50 line 11) frankly acknowledged that he did not know whether the Plaintiff had been assigned a lanyard and told to tie itoff before his fall and injury. Page 73 line 22 to page 74. TESTIMONY OF PAULO ANDRE ON BEHALF OF THIRD PARTY DEFENDANT MAGELLAN 24. Paulo Andre, who testified on behalf of the Plaintiff's employer, Third Party Defendant MAGELLAN (Transcript annexed as Exhibit K), acknowledged that Fernandez-Velayarse had fallen a distance of eight to ten feet (page 31 line 23 to page 32) while working without being tied off with a safety lanyard. Page 31 line 14. He acknowledged the photos showed the injured Plaintiff where he landed after falling from above. Page 83 line 18. 25. Beyond that, Martinez had no relevant information about the Plaintiff's accident: he did not know where he was or what he was doing on the accident date (Page 28) or what Plaintiff was doing (page 38). Stating "I really don't remember happened" exactly how it (page 31 line 13), Andre acknowledged he would have been the one to assign Plaintiff his work (page 77 line 5) and he testified that he had no memory of checking on him before the accident. Page 77 line 12. 26. Similarly, Andre testified that he had no memory of filling out the accident report (Page 74), explaining that his company's equipment supervisor Heloy Netto 7 of 14 FILED: KINGS COUNTY CLERK 10/06/2022 02:09 PM INDEX NO. 513009/2018 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 10/06/2022 filled out various parts of the accident report which he then reviewed and signed (page 72 line 10), and he stated that everything in the report is based on a witness account, but he did not recall the name of the witness. Page 69 to page 70 line 17. 27. Andre testified that Heloy Netto was a site supervisor (page 48 line 3) who was responsible for issuing Magellan's workers their safety gear. Page 17-18 and page 54 line 17. Heloy kept a record of who he issued gear to (page 52 line 14) and he would collect itat the end of the work day. Page 53 line 3. It was Heloy's job to walk the job to make sure the workers were using lanyards and harnesses, particularly when framing the floors. Page 54 line 17-22. 28. To the extent that Andre agreed with the accident report's claim that the Plaintiff refused to tie off, he also acknowledged that he had no direct knowledge about how many lanyards were available for the workers on the accident date, and was only relying on Heloy's claim that there were enough lanyards for all the workers on the accident date. Page 63 line 22 to page 64. Notably, the equipment assignment logs that Andre testified Heloy kept have not been produced. 29. Although Andre testified that the Plaintiff had been warned before the accident about working without a safety harness, he recalled no particulars about that alleged prior incident (page 57 to 62). POINT I: PLAINTIFF IS ENTITLED TO PARTIAL SUMMARY JUDGMENT AGAINST THE OWNER AND GC ON THE ISSUE OF LIABILITY UNDER LABOR LAW SECTION 240 (1) 8 of 14 FILED: KINGS COUNTY CLERK 10/06/2022 02:09 PM INDEX NO. 513009/2018 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 10/06/2022 30. The Plaintiff's unrebutted testimony, describing his fall from an unguarded beam that moved when he stepped on it,and his testimony that he was assigned to work at the height with no safety lanyard being available for his use, establishes the Defendants' 240(1)1 violation of the New York State Labor Law, Section and warrants partial summary judgment in his favor on the issue of liability under that statute. Yaucan v. Hawthorne Vill., LLC, 155 A.D.3d 924, 925, 63 N.Y.S.3d 721, 722 (2nd Dept. 2017). 31. As stated in Doto v. Astoria Energy II,LLC, 129 A.D.3d 660, 11 N.Y.S.3d 201 (2nd Dept. 2015), a Plaintiff establishes proof of a 240 violation "by submitting evidence demonstrating that the defendants failed to provide him with an injuries." adequate safety device, and that such failure was a proximate cause of his Id. 32. In this case, Plaintiff was assigned to work on an unfinished, unguarded deck and beam, he testified that to place additional wood on the floor he needed to step on the unguarded beam, and that when he did, its post moved and he fell(Exhibit B page 66-67 and page 71 line 3). The deck, beam, and post were all inadequate safety devices for this dangerous elevated work, and the safety harness he wore offered no protection at all,there being no lanyard attached (Exhibit B page 32 line 3)and no place to tie off a lanyard, had one been issued (Exhibit B page 36-37). 33. Any defense claim that this Plaintiff was a recalcitrant worker who refused available safety devices must fail, because there is no proof that the Plaintiff refused to use an available safety device. Indeed, Magellan's witness Paulo Andre testified 1 1. Allcontractors and owners and their agents . . . in the erection,demolition, repairing, altering, painting, cleaning orpointing of a building or structureshallfurnish or erector cause to be furnished or erected forthe perfonnance ofsuch labor,scaffolding,hoists,stays, ladders,slings,hangers, blocks, pulleys, braces,irons,ropes, and other devices which shallbe so constructed, placed and operated as to give proper protectionto a person so employed. 9 of 14 FILED: KINGS COUNTY CLERK 10/06/2022 02:09 PM INDEX NO. 513009/2018 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 10/06/2022 he only assumed there were an adequate number of lanyards available on the sitethat day based on what his equipment manager told him. Exhibit K Page 63 line 22 to page 64. Although the equipment manager maintained equipment logs (Andre deposition Exhibit K page 52 line 14), none have been produced to date. 34. Moreover, there is no evidence disputing Plaintiff's testimony that when he stepped out onto the beam, he felt its post move causing him to fall off, and the lack of guards and safety line meant that as he fell,there was nothing to stop him from plummeting to the cement floor below. In other words, if the Court were to accept the accident reports alleged, unproven claim that the worker refused to tie off, the defective post, the unguarded beam, and the lack of guard rails were all statutory violations and proximate causes of the Plaintiff's substantial fall and serious injuries as well; any action by the worker could not be the accident's sole proximate cause. Birbillis v. Rapp, 205 A.D. (2nd 2d 569 Dept. 1994), Danielewski v. Kenyon Realty Co., 2 A.D.3d 666, 770 N.Y.S.2d 97 (2nd Dept. 2003). Inasmuch as each of these defects violated the absolute liability statute, summary judgment in Plaintiff's favor is warranted and the recalcitrant worker defense is unavailable. Doto, supra. 35. Defendant CLARKSON BU LLC's liability as the property owner under the New York State Labor Law, Section 240 is statutory and absolute regardless of itsknowledge or control over the worksite because ownership, rather than knowledge about the work or even the contracts, gives rise to an owner's liability under the New York State Labor Law. Coleman v. City of N.Y., 91 N.Y.2d 821, 666 N.Y.S.2d 553, 689 N.E.2d 523 (1997); see also Costa v. State of N.Y., 141 A.D.3d 43, 32 N.Y.S.3d 147 (1st Dept. 2016); 10 of 14 FILED: KINGS COUNTY CLERK 10/06/2022 02:09 PM INDEX NO. 513009/2018 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 10/06/2022 Pineda v. 79 Barrow St. Owners Corp., 297 A.D.2d 634, 747 N.Y.S.2d 236 (2nd Dept. 2002). 36. Defendant DAWNY is also absolutely liable under the statute in its role as the owner's general contractor, there being no evidence that any other entity was workers' hired to be responsible for the safety at thisjobsite. See eg Martinez deposition transcript, Exhibit J page 22, stating that Jeffrey Collins, the site safety manager, was DAWNY's employee. Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311, 318, 445 N.Y.S.2d 127, 130, 429 N.E.2d 805, 808 (1981) prevent" 37. Labor Law Section 240(1) "was designed to accidents where a worksite's protective devices "proved inadequate to shield the injured worker from person." harm directly flowing from the application of the force of gravity to an object or Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 601 N.Y.S.2d 49, 618 N.E.2d 82 (1993). 38. The Plaintiff's that there were no lanyards or other fall- testimony arrest devices available for him to attach to a safety harness, and that there was no place to tieoff ifhe had been given a lanyard, and that he fell when the post of the unguarded beam he stepped on moved, establishes that he was not afforded adequate protection against the gravity-related hazard of a fall from his elevated workplace, and that he was injured because of that inadequate protection. His testimony establishes his entitlement to the absolute liability provisions of Labor Law Section 240. There is no valid legal defense. The motion for partial summary judgment on theissue of liability under Labor Law Section 240(1) must be granted. 11 of 14 FILED: KINGS COUNTY CLERK 10/06/2022 02:09 PM INDEX NO. 513009/2018 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 10/06/2022 WHEREFORE it is respectfully requested that the Court grant the Plaintiff's Motion in itsentirety, and grant such other and further relief as it may deem just and proper. Dated: Garden Ci ,NY October 2022 TO BRIAN S. BRANDMAN 12 of 14 FILED: KINGS COUNTY CLERK 10/06/2022 02:09 PM INDEX NO. 513009/2018 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 10/06/2022 WORD COUNT CERTIFICATION I certify pursuant to pursuant to Section 202.8-b of the Uniform Rules for Civil Courts that the foregoing was prepared with a computerized word processing program. The total number of words in the document, including headings and footnotes and excluding caption, the table of contents, and signature block is 3147, conforming with the word count limit for such document. Dated: Brooklyn, NY October , 2022 BRIAN S. BRANDMAN 13 of 14 FILED: KINGS COUNTY CLERK 10/06/2022 02:09 PM INDEX NO. 513009/2018 NYSCEF DOC. NO. 68 PONTISAKOS & P.C. RECEIVED NYSCEF: 10/06/2022 BRANDMAN, Index No.: 513009/18 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS WILMAN FERNANDEZ-VELAYARSE, Plaintiff, - against - CLARKSON BU LLC and DAWNY CONSTRUCTION LTD, ............_________________________________________________________________Ç CLARKSON BU LLC and DAWNY CONSTRUCTION LTD, Third-Party Plaintiffs, -against- MAGELLAN CONCRETE STRUCTURES CORP., Third-Party Defendant. NOTICE OF MOTION FOR PARTIAL SUMMERY JUDGMENT ON LIABILITY UNDER LABOR LAW SECTION 240(1) AND SUPPORTING DOCUMENTS PONTISAKOS & BRANDMAN, P.C. Attorneys for Plaintiff(s) 600 Old Country Road, Suite 323 Garden City, New York 11530 (516) 683-8888 To: Attorney(s) for Serviceof a copyof the within is hereby admitted. Dated: ............................... Attorney(s) for Sir:Please take notice NOTICE OF ENTRY thatthe within is a (certified) true copy of a entered in theofficeof theClerk of the within named Court on 19 . NOTICE OF SETTLEMENT that an Order of which the within is a true copy will be presented to theHon. , one ofthe judges ofthe within named Court, at on Dated: PONTISAKOS & BRANDMAN, P.C. Attorneys for Plaintiff(s) 600 Old Country Road, Suite 323 Garden City, New York 11530 (516) 683-8888 14 of 14