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FILED: KINGS COUNTY CLERK 12/21/2022 05:13 PM INDEX NO. 527680/2019
NYSCEF DOC. NO. 207 RECEIVED NYSCEF: 12/21/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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JOSE GOMEZ, Index No.: 527680/2019
Plaintiff,
-against- AFFIRMATION IN
OPPOSITION
91-93 FRANKLIN LLC,
Y.N.H. CONSTRUCTION INC. and
ALPINE READY MIX INC.,
Defendants.
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91-93 FRANKLIN LLC and Y.N.H. CONSTRUCTION
INC.,
Third-Party Plaintiffs,
-against-
CAPITAL CONCRETE NY INC.,
Third-Party Defendant.
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Christopher M. Carfora, an attorney duly admitted to practice law before the Courts of
the State of New York, hereby affirms the truth of the following under the penalties of perjury:
1. I am a partner of the law firm of Ryan & Conlon, LLP, attorneys for, Defendants, 91-93
FRANKLIN LLC and Y.N.H. CONSTRUCTION INC. (hereinafter, “Defendants”), in the above-
captioned matter, and as such, I am fully familiar with the facts and circumstances of the action
based upon the papers and documents contained within our file.
2. This affirmation is respectfully submitted in Opposition to Plaintiff’s motion for an order
to extend Plaintiff’s time to move for summary judgment as against the Defendants 91-93 Franklin,
LLC and Y.N.H. Construction Inc., and upon granting such extension, granting Plaintiff partial
summary judgment as to liability on his Labor Law §241[6] claim against 91-93 Franklin, LLC,
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Y.N.H. Construction Inc. and granting such other further and different relief as this Court deems
just and proper.
3. Plaintiff’s motion must be denied as there is no evidence that Plaintiff was engaged in any
activity or operation that involved a danger to his eyes. Therefore, Plaintiff has failed to meet its
prima facie burden of proving Defendants violated 12 NYCRR §23-1.8(a)and therefore Plaintiff
is not entitled to judgment over and against Defendants pursuant to Labor Law §241[6].
4. By Plaintiff’s own admission his accident occurred while he was observing co-workers
pour concrete at the jobsite in question (see Plaintiff’s Statement of Material Facts paragraph 7-
10). By Plaintiff’s own admission he was not participating in the pouring or placement of concrete
but was merely there to “take progress photos” (see Plaintiff’s Statement of Material Facts
paragraph 7-10). The concrete in question then “fell into a puddle” and “splattered onto” the
Plaintiff’s face (see Plaintiff’s Statement of Material Facts paragraph 7-10). Plaintiff’s only basis
for seeking summary judgment is that was allegedly not provided with protective eyewear despite
allegedly asking for it (see Plaintiff’s Statement of Material Facts paragraph 5). The case and
statutory law however is unequivocal that Plaintiff was not participating in any activity or
operation that involved a danger to his eyes. Plaintiff’s task at the time of the accident carried no
more risk to his eyes than any other construction related task and therefore 12 NYCRR §23-1.8(a)
is not applicable.
LEGAL ARGUMENT
Point I
PLAINTIFFS MOTION IS PROCEDURALLY DEFECTIVE
5. At the outset it must be noted that Plaintiff’s motion is procedurally defective and must
therefore be denied in its entirety. Plaintiff has submitted an improper and defective Statement of
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Material Facts in violation of Uniform Court Rule §202.8-g along with its motion and therefore
the court should give no consideration to the instant motion. Uniform Court Rule §202.8-g has
been in effect since February 1, 2021, long before the filing of the instant motion.
6. In pertinent part, Uniform Court Rule §202.8-g states:
(a) Upon any motion for summary judgment, other than a motion made
pursuant to CPLR 3213, there shall be annexed to the notice of motion a
separate, short and concise statement, in numbered paragraphs, of the
material facts as to which the moving party contends there is no genuine
issue to be tried… (d) Each statement of material fact by the movant or
opponent pursuant to subdivision (a) or (b), including each statement
controverting any statement of material fact, must be followed by citation
to evidence submitted in support of or in opposition to the motion.
7. Plaintiffs, however, have made improper use of their Statement of Material Fact and
included lengthy conflations of purported facts, which are in controversy, and purported
controlling law. It has been held that any Statement of Fact submitted which are in fact in
controversy will not be considered by the Court when reviewing a motion for summary judgment
(see Scott v Ferraro, 2021 NY Slip Op 32679 [Sup Ct, Kings County 2021]). Failing to Submit a
Statement of Material Facts which conforms to Uniform Court Rule §202.8-g is a procedural defect
which necessitates the denial of a motion.
8. Most recently on May 2, 2022, Justice Kraus of the instant Court denied a Movant’s
Summary Judgment motion stating:
“Uniform Rule 202.8-g is not precatory or discretionary in its application:
it is a mandate on all summary judgment movants in this state. Consistent
with Judiciary Law § 213 (2) (b), the Chief Administrative Judge-on the
advice and consent of the Administrative Board of the Courts, comprising
the Chief Judge and the four Presiding Justices of the Appellate Divisions
(see NY Const, art VI, § 30)-promulgated this rule of practice and
procedure to vindicate substantial judicial economy interests for both bar
and bench. These interests have been the focus of extensive discussion, and
years of experience, concerning the Commercial Division predicate
to Uniform Rule 202.8-g (a) (see Uniform Civil Rules for Sup Ct and
County Ct [22 NYCRR] § 202.70, Rules of Commercial Div of Sup
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Ct, rule 19-a). [The Movant] ignores Uniform Rule 202.8-g entirely, along
with its constitutional, statutory and administrative predicates, and its
underlying policy objectives. Thus, [the motion] is procedurally defective
on its face.” (Avamer 57 Fee LLC v Gorgeous Bride, Inc., 2022 NY Slip
Op 31453[U], [Sup Ct, NY County 2022])
9. It has further been held that a purported Statement of Fact which “contains a partial fact
and an attorney's statement” is not in compliance with Uniform Court Rule §202.8-g and thus is
defective. Alexander v Abramov 2021 N.Y. Misc. LEXIS 6605 [Sup Ct, Bronx County Apr. 26,
2021, No. 0033461/2020E]. It has been held where a movant submits a Statement of Facts which
“is either a restatement of an allegation of the complaint [or a paraphrasing of plaintiffs' argument]”
then the Movant failed to submit a Statement of Undisputed Facts and their motion must be denied
(see Reichenbach v Jacin Invs. Corp., N.V., 2022 NY Slip Op 30140[U], [Sup Ct, NY County
2022]) As such, Plaintiffs’ motion must be considered defective on its face and be denied in its
entirety with prejudice.
10. Assuming, arguendo, that the court does not find Plaintiff’s motion defective on its face,
the motion must still be denied in its entirety as Plaintiff has failed to meet their burden to
entitlement to Summary Judgment.
POINT II
APPLICABLE STANDARD FOR SUMMARY JUDGMENT
11. In relevant part, CPLR § 3212(b) provides that a motion for summary judgment “shall be
granted if, upon all papers and proof submitted, the cause of action or defense shall be established
sufficiently to warrant the court as a matter of law in directing judgment in favor of any part.”
12. When reviewing a motion for summary judgment, the evidence must be viewed in the light
most favorable to the nonmoving party, which is afforded the benefit of every favorable inference.
See Ruiz v. Griffin, 71 A.D.3d 1112, 1115 [2d Dep’t 2010]; Franklin v. 2 Guys From Long Pond,
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Inc., 50 A.D.3d 846 [2d Dep’t 2008]. Moreover, a “motion for summary judgment should not be
granted where the facts are in dispute, where conflicting inferences may be drawn from the
evidence, or where there are issues of credibility.” Ruiz, 71 A.D.3d at 1115, quoting Scott v. Long
Is. Power Auth., 294 A.D.2d 348 [2d Dep’t 2002]. All questions of credibility, determinations of
the accuracy of witnesses, and reconciling the testimony of witnesses are for the trier of fact. See
Gille v. Long Beach City School Dist., 84 A.D.3d 1022, 1023 [2d Dep’t 2011]; Republic Long Is.,
Inc. v. Andrew J. Vanacore, Inc., 29 A.D.3d 665 [2d Dep’t 2006]; Harty v. Kornish Distribs., 119
A.D.2d 729 [2d Dep’t 1986]. In addition, it is the existence of an issue, not its relative strength
that is the critical and controlling consideration. See Barrett v. Jacobs, 255 N.Y. 520 [1931]; Cross
v. Cross, 112 A.D.2d 62, 64 [1st Dep’t 1985].
POINT III
PLAINTIFF HAS NOT SUFFICIENTLY PLED A VIOLATION OF THE INDUSTRIAL
CODE IN SUPPORT OF THE LABOR LAW § 241(6) CLAIM
13. Plaintiff’s motion for judgment pursuant to Labor Law § 241(6) must be denied. Labor
Law § 241(6) provides in full: All areas in which construction, excavation or demolition work is
being performed shall be so constructed, shored, equipped, guarded, arranged, operated and
conducted as to provide reasonable and adequate protection and safety to the persons employed
therein or lawfully frequenting such places. The commissioner may make rules to carry into effect
the provisions of this subdivision, and the owners and contractors and their agents for such work,
except owners of one and two-family dwellings who contract for but do not direct or control the
work, shall comply therewith. In accordance with the legislative intent of Labor Law § 241(6), it
is well settled that, “[a]s a predicate to a section 241(6) cause of action, a plaintiff must allege a
violation of a concrete specification promulgated by the Commissioner of the Department of Labor
in the Industrial Code.” Perez v. 286 Scholes St. Corp., 134 A.D.3d 1085, 1086 (2d Dep’t 2015).
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14. The Court of Appeals opined that the “Industrial Code should be sensibly interpreted and
applied to effectuate its purpose of protecting construction laborers against hazards in the
workplace.” St. Louis v. Town of North Elba, 16 N.Y.3d 411, 416 (2011). Therefore, “the preferred
rule both as a matter of statutory interpretation and as a reinforcement of the objectives of the
Industrial Code is to take into consideration the function of a piece of equipment, and not merely
the name when determining the applicability of a regulation.” Id. Furthermore, the Court of
Appeals ruled that there was a clear distinction between the violation of an administrative
regulation promulgate pursuant to statute and a violation of an explicit provision of a statute.
Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 N.Y.2d 343, 349 (1998).
15. The Court of Appeals went on to rule that a violation of a provision of a statute gave rise
to liability while a violation of an administrative regulation was “‘simply some evidence of
negligence which the jury could take into consideration’” along with the other evidence presented.
Id. (quoting Allen v. Cloutier Const. Corp., 44 N.Y.2d 290, 298 (1978)). Additionally, the
provisions of the Industrial Code alleged to have been violated by defendants must be a specific
command, rather than a general and “routine incorporation of the ordinary tort duty of care into
the Commissioner’s regulations.” Ross v. Curtis-Palmer HydroElectric Co., 81 N.Y.2d 494, 504
(1993). In other words, in order to prevail on a Labor Law § 241(6) claim, a plaintiff must establish
a violation of a regulation that delineates a specific standard of conduct. See id. Furthermore, in
order to recover pursuant to Labor Law § 241(6), a plaintiff must demonstrate that the alleged
violation of a provision of the Industrial Code was a proximate cause of the injuries alleged. Rivera
v. Santos, 35 A.D.3d 700, 702 (2d Dep’t 2006) (“To support a cause of action under Labor Law §
241(6), a plaintiff must demonstrate that his injuries were proximately caused by a violation of an
Industrial Code provision that is applicable under the circumstances of the accident.”).
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POINT IV
PLAINTIFF HAS FAILED TO MEET ITS PRIMA FACIE BURDEN OF PROVING
DEFENDANTS VIOLATED 12 NYCRR §23-1.8(A)
16. Industrial Code § 23-1.8 (a) requires the furnishing of eye protection equipment to
employees who are "engaged in any ... operation which may endanger the eyes." It provides in
pertinent part: “(a) Eye protection: Approved eye protection equipment suitable for the hazard
involved shall be provided for and shall be used by all persons while employed in welding, burning
or cutting operations or in chipping, cutting or grinding any material from which particles may fly,
or while engaged in any other operation which may endanger the eyes.”
17. In a case directly on point, Molina v Brooklyn GC LLC, 2022 NY Slip Op 30540 [Sup
Ct, Kings County 2022], Justice Joseph of the instant court recently denied a Plaintiff’s motion for
summary judgment alleging a violation of Industrial Code § 23-1.8 (a). In Molina, Plaintiff alleged
that the failure to provide him with goggles or other suitable eye-protection was a substantial factor
in causing his injuries. In his affidavit, the plaintiff averred that when workers are working in areas
where plywood forms are being removed from a ceiling after a concrete pour, pieces of plywood
and pieces of the support structure frequently fall. In such areas where this is occurring, he
contended that persons and entities at the worksite responsible for ensuring a safe workplace
usually provide goggles or other suitable eye-protection to prevent falling objects from hitting
workers in their eyes. During his deposition, the plaintiff testified that he was not wearing goggles
at the time of the accident because he did not have any at the worksite. According to plaintiff,
despite his requests for goggles at the site, neither he nor his co-workers were provided with any
safety glasses.
18. In Molina the Court found that Plaintiff failed to eliminate a triable issue of fact as to
whether, at the time of his accident, he was engaged in work that "may endanger the eyes" so as
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to require the use of eye protection pursuant to Industrial Code § 23-1.8 (a). In the case at bar, the
Plaintiff has failed to establish that Plaintiff’s observation role at the site was an activity which
“may endanger the eyes” and therefore covered by Industrial Code § 23-1.8 (a).
19. Defendants position that Industrial Code § 23-1.8 (a) was not violated is further bolstered
by the attached affidavit of their expert, Michael Cronin, P.E. attached hereto as Exhibit “A”.
Upon review of all relevant testimony and evidence, Mr. Cronin concluded that the Plaintiff was
not engaged in welding, burning or cutting operations at the time of his accident. Nor was the
plaintiff chipping, cutting or grinding materials at the time of his accident. Plaintiff was not
actively performing construction work involving concrete at the project and his work did not
require him to be in close proximity to the subject concrete pour. Plaintiff’s accident reportedly
occurred due to concrete landing in a puddle causing a splash to strike plaintiff’s eye. This accident
was not foreseeable as a hazard requiring personal protective equipment such as eye protection
under the New York Industrial Code (see Exhibit “A”, paragraph 9). Is it Mr. Cronin’s conclusion
that Defendants did not violate Labor Law 241(6) or Industrial Code § 23-1.8 (a) (see Exhibit “A”,
paragraph 4). A copy of Mr. Cronin’s credentials is attached hereto as Exhibit “B”.
20. The operative question before the court is the foreseeability of injury to Plaintiff’s eyes
based on the activity or task being performed at the time of injury (see Roque v 475 Bldg. Co.,
LLC, 171 AD3d 543, 544, 96 N.Y.S.3d 532 [1' Dept 2019]; Guryev v Tomchinsky, 87 AD3d at
613). It has been held that whether an activity is protected by 12 NYCRR 23-1.8 (a) requiring the
furnishing of eye protection equipment is a jury question that turns on whether a particular activity
involves a foreseeable risk of eye injury (see Cappiello v Telehouse Intl. Corp., 193 A.D.2d 478,
480, 597 N.Y.S.2d 393 [1993]. Fresco v 157 E. 72nd St. Condominium, AD3d, 769 NYS2d 536,
539 [2003]).
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20. For the foregoing reasons, Plaintiff has failed to meet his prima facie burden of
proving Defendants violated 12 NYCRR §23-1.8(a) as questions of fact exist as to the
foreseeability of Plaintiff’s risk of eye injury at the time of the alleged accident.
WHEREFORE, it is respectfully submitted that the Court DENY Plaintiff’s motion for an
order to extend Plaintiff’s time to move for summary judgment as against the Defendants 91-93
Franklin, LLC and Y.N.H. Construction Inc., and upon granting such extension, granting Plaintiff
partial summary judgment as to liability on his Labor Law §241[6] claim against 91-93 Franklin,
LLC, Y.N.H. Construction Inc. and granting such other further and different relief as this Court
deems just and proper.
Dated: New York, New York
December 21, 2022
_______________________________
Christopher M. Carfora, Esq.
RYAN & CONLON, LLP
Attorneys for Defendants
91-93 FRANKLIN LLC and
Y.N.H. CONSTRUCTION INC.
2 Wall Street, Suite 710
New York, New York 10005
(212) 509-6009
TO: Glenn P. Dolan, Esq.
MORGAN LEVINE DOLAN, P.C.
Attorneys for Plaintiff
JOSE GOMEZ
18 East 41st Street, 6th Floor
New York, New York 10017
(212) 785-5115
BRAND, GLICK & BRAND, P.C.
Attorneys for Defendant
ALPINE READY MIX INC.
600 Old Country Road, Suite 440
Garden City, NY 11530
(516) 746-3500
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Certification Pursuant to 22 NYCRR 202.8-b
I hereby certify that the foregoing Affirmation in Opposition was prepared in compliance
with 22 NYCRR 202.8-b. This certificate was prepared in reliance on the word-count function of
the word-processing system (Microsoft Word) used to prepare the document.
Type. A proportionally spaced typeface was used, as follows:
Name of typeface: Times New Roman
Point size: 12
Line spacing: Double
Word Count. The total number of words in this Affirmation, exclusive of caption and signature
block and this Statement is 2653.
Dated: New York, New York
December 21, 2022
_______________________________
Christopher M. Carfora, Esq.
RYAN & CONLON, LLP
Attorneys for Defendants
91-93 FRANKLIN LLC and
Y.N.H. CONSTRUCTION INC.
2 Wall Street, Suite 710
New York, New York 10005
(212) 509-6009
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Preview
FILED: KINGS COUNTY CLERK 12/21/2022 05:13 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 207 RECEIVED NYSCEF: 12/21/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---------------------------------------------------------------------X JOSE GOMEZ, Index No.: 527680/2019 Plaintiff, -against- AFFIRMATION IN OPPOSITION 91-93 FRANKLIN LLC, Y.N.H. CONSTRUCTION INC. and ALPINE READY MIX INC., Defendants. ---------------------------------------------------------------------X 91-93 FRANKLIN LLC and Y.N.H. CONSTRUCTION INC., Third-Party Plaintiffs, -against- CAPITAL CONCRETE NY INC., Third-Party Defendant. ---------------------------------------------------------------------X Christopher M. Carfora, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the truth of the following under the penalties of perjury: 1. I am a partner of the law firm of Ryan & Conlon, LLP, attorneys for, Defendants, 91-93 FRANKLIN LLC and Y.N.H. CONSTRUCTION INC. (hereinafter, “Defendants”), in the above- captioned matter, and as such, I am fully familiar with the facts and circumstances of the action based upon the papers and documents contained within our file. 2. This affirmation is respectfully submitted in Opposition to Plaintiff’s motion for an order to extend Plaintiff’s time to move for summary judgment as against the Defendants 91-93 Franklin, LLC and Y.N.H. Construction Inc., and upon granting such extension, granting Plaintiff partial summary judgment as to liability on his Labor Law §241[6] claim against 91-93 Franklin, LLC, 1 of 10 FILED: KINGS COUNTY CLERK 12/21/2022 05:13 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 207 RECEIVED NYSCEF: 12/21/2022 Y.N.H. Construction Inc. and granting such other further and different relief as this Court deems just and proper. 3. Plaintiff’s motion must be denied as there is no evidence that Plaintiff was engaged in any activity or operation that involved a danger to his eyes. Therefore, Plaintiff has failed to meet its prima facie burden of proving Defendants violated 12 NYCRR §23-1.8(a)and therefore Plaintiff is not entitled to judgment over and against Defendants pursuant to Labor Law §241[6]. 4. By Plaintiff’s own admission his accident occurred while he was observing co-workers pour concrete at the jobsite in question (see Plaintiff’s Statement of Material Facts paragraph 7- 10). By Plaintiff’s own admission he was not participating in the pouring or placement of concrete but was merely there to “take progress photos” (see Plaintiff’s Statement of Material Facts paragraph 7-10). The concrete in question then “fell into a puddle” and “splattered onto” the Plaintiff’s face (see Plaintiff’s Statement of Material Facts paragraph 7-10). Plaintiff’s only basis for seeking summary judgment is that was allegedly not provided with protective eyewear despite allegedly asking for it (see Plaintiff’s Statement of Material Facts paragraph 5). The case and statutory law however is unequivocal that Plaintiff was not participating in any activity or operation that involved a danger to his eyes. Plaintiff’s task at the time of the accident carried no more risk to his eyes than any other construction related task and therefore 12 NYCRR §23-1.8(a) is not applicable. LEGAL ARGUMENT Point I PLAINTIFFS MOTION IS PROCEDURALLY DEFECTIVE 5. At the outset it must be noted that Plaintiff’s motion is procedurally defective and must therefore be denied in its entirety. Plaintiff has submitted an improper and defective Statement of 2 of 10 FILED: KINGS COUNTY CLERK 12/21/2022 05:13 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 207 RECEIVED NYSCEF: 12/21/2022 Material Facts in violation of Uniform Court Rule §202.8-g along with its motion and therefore the court should give no consideration to the instant motion. Uniform Court Rule §202.8-g has been in effect since February 1, 2021, long before the filing of the instant motion. 6. In pertinent part, Uniform Court Rule §202.8-g states: (a) Upon any motion for summary judgment, other than a motion made pursuant to CPLR 3213, there shall be annexed to the notice of motion a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried… (d) Each statement of material fact by the movant or opponent pursuant to subdivision (a) or (b), including each statement controverting any statement of material fact, must be followed by citation to evidence submitted in support of or in opposition to the motion. 7. Plaintiffs, however, have made improper use of their Statement of Material Fact and included lengthy conflations of purported facts, which are in controversy, and purported controlling law. It has been held that any Statement of Fact submitted which are in fact in controversy will not be considered by the Court when reviewing a motion for summary judgment (see Scott v Ferraro, 2021 NY Slip Op 32679 [Sup Ct, Kings County 2021]). Failing to Submit a Statement of Material Facts which conforms to Uniform Court Rule §202.8-g is a procedural defect which necessitates the denial of a motion. 8. Most recently on May 2, 2022, Justice Kraus of the instant Court denied a Movant’s Summary Judgment motion stating: “Uniform Rule 202.8-g is not precatory or discretionary in its application: it is a mandate on all summary judgment movants in this state. Consistent with Judiciary Law § 213 (2) (b), the Chief Administrative Judge-on the advice and consent of the Administrative Board of the Courts, comprising the Chief Judge and the four Presiding Justices of the Appellate Divisions (see NY Const, art VI, § 30)-promulgated this rule of practice and procedure to vindicate substantial judicial economy interests for both bar and bench. These interests have been the focus of extensive discussion, and years of experience, concerning the Commercial Division predicate to Uniform Rule 202.8-g (a) (see Uniform Civil Rules for Sup Ct and County Ct [22 NYCRR] § 202.70, Rules of Commercial Div of Sup 3 of 10 FILED: KINGS COUNTY CLERK 12/21/2022 05:13 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 207 RECEIVED NYSCEF: 12/21/2022 Ct, rule 19-a). [The Movant] ignores Uniform Rule 202.8-g entirely, along with its constitutional, statutory and administrative predicates, and its underlying policy objectives. Thus, [the motion] is procedurally defective on its face.” (Avamer 57 Fee LLC v Gorgeous Bride, Inc., 2022 NY Slip Op 31453[U], [Sup Ct, NY County 2022]) 9. It has further been held that a purported Statement of Fact which “contains a partial fact and an attorney's statement” is not in compliance with Uniform Court Rule §202.8-g and thus is defective. Alexander v Abramov 2021 N.Y. Misc. LEXIS 6605 [Sup Ct, Bronx County Apr. 26, 2021, No. 0033461/2020E]. It has been held where a movant submits a Statement of Facts which “is either a restatement of an allegation of the complaint [or a paraphrasing of plaintiffs' argument]” then the Movant failed to submit a Statement of Undisputed Facts and their motion must be denied (see Reichenbach v Jacin Invs. Corp., N.V., 2022 NY Slip Op 30140[U], [Sup Ct, NY County 2022]) As such, Plaintiffs’ motion must be considered defective on its face and be denied in its entirety with prejudice. 10. Assuming, arguendo, that the court does not find Plaintiff’s motion defective on its face, the motion must still be denied in its entirety as Plaintiff has failed to meet their burden to entitlement to Summary Judgment. POINT II APPLICABLE STANDARD FOR SUMMARY JUDGMENT 11. In relevant part, CPLR § 3212(b) provides that a motion for summary judgment “shall be granted if, upon all papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any part.” 12. When reviewing a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party, which is afforded the benefit of every favorable inference. See Ruiz v. Griffin, 71 A.D.3d 1112, 1115 [2d Dep’t 2010]; Franklin v. 2 Guys From Long Pond, 4 of 10 FILED: KINGS COUNTY CLERK 12/21/2022 05:13 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 207 RECEIVED NYSCEF: 12/21/2022 Inc., 50 A.D.3d 846 [2d Dep’t 2008]. Moreover, a “motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility.” Ruiz, 71 A.D.3d at 1115, quoting Scott v. Long Is. Power Auth., 294 A.D.2d 348 [2d Dep’t 2002]. All questions of credibility, determinations of the accuracy of witnesses, and reconciling the testimony of witnesses are for the trier of fact. See Gille v. Long Beach City School Dist., 84 A.D.3d 1022, 1023 [2d Dep’t 2011]; Republic Long Is., Inc. v. Andrew J. Vanacore, Inc., 29 A.D.3d 665 [2d Dep’t 2006]; Harty v. Kornish Distribs., 119 A.D.2d 729 [2d Dep’t 1986]. In addition, it is the existence of an issue, not its relative strength that is the critical and controlling consideration. See Barrett v. Jacobs, 255 N.Y. 520 [1931]; Cross v. Cross, 112 A.D.2d 62, 64 [1st Dep’t 1985]. POINT III PLAINTIFF HAS NOT SUFFICIENTLY PLED A VIOLATION OF THE INDUSTRIAL CODE IN SUPPORT OF THE LABOR LAW § 241(6) CLAIM 13. Plaintiff’s motion for judgment pursuant to Labor Law § 241(6) must be denied. Labor Law § 241(6) provides in full: All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith. In accordance with the legislative intent of Labor Law § 241(6), it is well settled that, “[a]s a predicate to a section 241(6) cause of action, a plaintiff must allege a violation of a concrete specification promulgated by the Commissioner of the Department of Labor in the Industrial Code.” Perez v. 286 Scholes St. Corp., 134 A.D.3d 1085, 1086 (2d Dep’t 2015). 5 of 10 FILED: KINGS COUNTY CLERK 12/21/2022 05:13 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 207 RECEIVED NYSCEF: 12/21/2022 14. The Court of Appeals opined that the “Industrial Code should be sensibly interpreted and applied to effectuate its purpose of protecting construction laborers against hazards in the workplace.” St. Louis v. Town of North Elba, 16 N.Y.3d 411, 416 (2011). Therefore, “the preferred rule both as a matter of statutory interpretation and as a reinforcement of the objectives of the Industrial Code is to take into consideration the function of a piece of equipment, and not merely the name when determining the applicability of a regulation.” Id. Furthermore, the Court of Appeals ruled that there was a clear distinction between the violation of an administrative regulation promulgate pursuant to statute and a violation of an explicit provision of a statute. Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 N.Y.2d 343, 349 (1998). 15. The Court of Appeals went on to rule that a violation of a provision of a statute gave rise to liability while a violation of an administrative regulation was “‘simply some evidence of negligence which the jury could take into consideration’” along with the other evidence presented. Id. (quoting Allen v. Cloutier Const. Corp., 44 N.Y.2d 290, 298 (1978)). Additionally, the provisions of the Industrial Code alleged to have been violated by defendants must be a specific command, rather than a general and “routine incorporation of the ordinary tort duty of care into the Commissioner’s regulations.” Ross v. Curtis-Palmer HydroElectric Co., 81 N.Y.2d 494, 504 (1993). In other words, in order to prevail on a Labor Law § 241(6) claim, a plaintiff must establish a violation of a regulation that delineates a specific standard of conduct. See id. Furthermore, in order to recover pursuant to Labor Law § 241(6), a plaintiff must demonstrate that the alleged violation of a provision of the Industrial Code was a proximate cause of the injuries alleged. Rivera v. Santos, 35 A.D.3d 700, 702 (2d Dep’t 2006) (“To support a cause of action under Labor Law § 241(6), a plaintiff must demonstrate that his injuries were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the accident.”). 6 of 10 FILED: KINGS COUNTY CLERK 12/21/2022 05:13 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 207 RECEIVED NYSCEF: 12/21/2022 POINT IV PLAINTIFF HAS FAILED TO MEET ITS PRIMA FACIE BURDEN OF PROVING DEFENDANTS VIOLATED 12 NYCRR §23-1.8(A) 16. Industrial Code § 23-1.8 (a) requires the furnishing of eye protection equipment to employees who are "engaged in any ... operation which may endanger the eyes." It provides in pertinent part: “(a) Eye protection: Approved eye protection equipment suitable for the hazard involved shall be provided for and shall be used by all persons while employed in welding, burning or cutting operations or in chipping, cutting or grinding any material from which particles may fly, or while engaged in any other operation which may endanger the eyes.” 17. In a case directly on point, Molina v Brooklyn GC LLC, 2022 NY Slip Op 30540 [Sup Ct, Kings County 2022], Justice Joseph of the instant court recently denied a Plaintiff’s motion for summary judgment alleging a violation of Industrial Code § 23-1.8 (a). In Molina, Plaintiff alleged that the failure to provide him with goggles or other suitable eye-protection was a substantial factor in causing his injuries. In his affidavit, the plaintiff averred that when workers are working in areas where plywood forms are being removed from a ceiling after a concrete pour, pieces of plywood and pieces of the support structure frequently fall. In such areas where this is occurring, he contended that persons and entities at the worksite responsible for ensuring a safe workplace usually provide goggles or other suitable eye-protection to prevent falling objects from hitting workers in their eyes. During his deposition, the plaintiff testified that he was not wearing goggles at the time of the accident because he did not have any at the worksite. According to plaintiff, despite his requests for goggles at the site, neither he nor his co-workers were provided with any safety glasses. 18. In Molina the Court found that Plaintiff failed to eliminate a triable issue of fact as to whether, at the time of his accident, he was engaged in work that "may endanger the eyes" so as 7 of 10 FILED: KINGS COUNTY CLERK 12/21/2022 05:13 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 207 RECEIVED NYSCEF: 12/21/2022 to require the use of eye protection pursuant to Industrial Code § 23-1.8 (a). In the case at bar, the Plaintiff has failed to establish that Plaintiff’s observation role at the site was an activity which “may endanger the eyes” and therefore covered by Industrial Code § 23-1.8 (a). 19. Defendants position that Industrial Code § 23-1.8 (a) was not violated is further bolstered by the attached affidavit of their expert, Michael Cronin, P.E. attached hereto as Exhibit “A”. Upon review of all relevant testimony and evidence, Mr. Cronin concluded that the Plaintiff was not engaged in welding, burning or cutting operations at the time of his accident. Nor was the plaintiff chipping, cutting or grinding materials at the time of his accident. Plaintiff was not actively performing construction work involving concrete at the project and his work did not require him to be in close proximity to the subject concrete pour. Plaintiff’s accident reportedly occurred due to concrete landing in a puddle causing a splash to strike plaintiff’s eye. This accident was not foreseeable as a hazard requiring personal protective equipment such as eye protection under the New York Industrial Code (see Exhibit “A”, paragraph 9). Is it Mr. Cronin’s conclusion that Defendants did not violate Labor Law 241(6) or Industrial Code § 23-1.8 (a) (see Exhibit “A”, paragraph 4). A copy of Mr. Cronin’s credentials is attached hereto as Exhibit “B”. 20. The operative question before the court is the foreseeability of injury to Plaintiff’s eyes based on the activity or task being performed at the time of injury (see Roque v 475 Bldg. Co., LLC, 171 AD3d 543, 544, 96 N.Y.S.3d 532 [1' Dept 2019]; Guryev v Tomchinsky, 87 AD3d at 613). It has been held that whether an activity is protected by 12 NYCRR 23-1.8 (a) requiring the furnishing of eye protection equipment is a jury question that turns on whether a particular activity involves a foreseeable risk of eye injury (see Cappiello v Telehouse Intl. Corp., 193 A.D.2d 478, 480, 597 N.Y.S.2d 393 [1993]. Fresco v 157 E. 72nd St. Condominium, AD3d, 769 NYS2d 536, 539 [2003]). 8 of 10 FILED: KINGS COUNTY CLERK 12/21/2022 05:13 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 207 RECEIVED NYSCEF: 12/21/2022 20. For the foregoing reasons, Plaintiff has failed to meet his prima facie burden of proving Defendants violated 12 NYCRR §23-1.8(a) as questions of fact exist as to the foreseeability of Plaintiff’s risk of eye injury at the time of the alleged accident. WHEREFORE, it is respectfully submitted that the Court DENY Plaintiff’s motion for an order to extend Plaintiff’s time to move for summary judgment as against the Defendants 91-93 Franklin, LLC and Y.N.H. Construction Inc., and upon granting such extension, granting Plaintiff partial summary judgment as to liability on his Labor Law §241[6] claim against 91-93 Franklin, LLC, Y.N.H. Construction Inc. and granting such other further and different relief as this Court deems just and proper. Dated: New York, New York December 21, 2022 _______________________________ Christopher M. Carfora, Esq. RYAN & CONLON, LLP Attorneys for Defendants 91-93 FRANKLIN LLC and Y.N.H. CONSTRUCTION INC. 2 Wall Street, Suite 710 New York, New York 10005 (212) 509-6009 TO: Glenn P. Dolan, Esq. MORGAN LEVINE DOLAN, P.C. Attorneys for Plaintiff JOSE GOMEZ 18 East 41st Street, 6th Floor New York, New York 10017 (212) 785-5115 BRAND, GLICK & BRAND, P.C. Attorneys for Defendant ALPINE READY MIX INC. 600 Old Country Road, Suite 440 Garden City, NY 11530 (516) 746-3500 9 of 10 FILED: KINGS COUNTY CLERK 12/21/2022 05:13 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 207 RECEIVED NYSCEF: 12/21/2022 Certification Pursuant to 22 NYCRR 202.8-b I hereby certify that the foregoing Affirmation in Opposition was prepared in compliance with 22 NYCRR 202.8-b. This certificate was prepared in reliance on the word-count function of the word-processing system (Microsoft Word) used to prepare the document. Type. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point size: 12 Line spacing: Double Word Count. The total number of words in this Affirmation, exclusive of caption and signature block and this Statement is 2653. Dated: New York, New York December 21, 2022 _______________________________ Christopher M. Carfora, Esq. RYAN & CONLON, LLP Attorneys for Defendants 91-93 FRANKLIN LLC and Y.N.H. CONSTRUCTION INC. 2 Wall Street, Suite 710 New York, New York 10005 (212) 509-6009 10 of 10