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  • Wilson Mendieta v. Jmjc Holding Llc, Cbcs 39 Llc, 338 West 39th Street Llc, Barone Management Llc Torts - Other (LABOR LAW) document preview
  • Wilson Mendieta v. Jmjc Holding Llc, Cbcs 39 Llc, 338 West 39th Street Llc, Barone Management Llc Torts - Other (LABOR LAW) document preview
  • Wilson Mendieta v. Jmjc Holding Llc, Cbcs 39 Llc, 338 West 39th Street Llc, Barone Management Llc Torts - Other (LABOR LAW) document preview
  • Wilson Mendieta v. Jmjc Holding Llc, Cbcs 39 Llc, 338 West 39th Street Llc, Barone Management Llc Torts - Other (LABOR LAW) document preview
  • Wilson Mendieta v. Jmjc Holding Llc, Cbcs 39 Llc, 338 West 39th Street Llc, Barone Management Llc Torts - Other (LABOR LAW) document preview
  • Wilson Mendieta v. Jmjc Holding Llc, Cbcs 39 Llc, 338 West 39th Street Llc, Barone Management Llc Torts - Other (LABOR LAW) document preview
  • Wilson Mendieta v. Jmjc Holding Llc, Cbcs 39 Llc, 338 West 39th Street Llc, Barone Management Llc Torts - Other (LABOR LAW) document preview
  • Wilson Mendieta v. Jmjc Holding Llc, Cbcs 39 Llc, 338 West 39th Street Llc, Barone Management Llc Torts - Other (LABOR LAW) document preview
						
                                

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FILED: QUEENS COUNTY CLERK 01/25/2023 09:31 PM INDEX NO. 703827/2018 NYSCEF DOC. NO. 241 RECEIVED NYSCEF: 01/25/2023 EXHIBIT 2 FILED: QUEENS COUNTY CLERK 01/25/2023 09:31 PM INDEX NO. 703827/2018 NYSCEF DOC. NO. 241 RECEIVED NYSCEF: 01/25/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ------------------------------------------------------------------X Index No.: 703827/2018 WILSON MENDIETA, REPLY AFFIRMATION TO Plaintiff, THE OWNER DEFENDANTS’ OPPOSITION -against- Hon. Allan B. Weiss TH JMJC HOLDING LLC, CBCS 39 LLC, 338 WEST 39 STREET LLC, BARONE MANAGEMENT LLC and Returnable: February 9, 2023 MONSTER CONCRETE, INC, Motion Sequence 007 Defendants. ------------------------------------------------------------------X JMJC HOLDING LLC, CBCS 39 LLC, 338 WEST 39TH STREET LLC and BARONE MANAGEMENT LLC, Third-Party Plaintiffs, -against- MONSTER CONCRETE, INC., Third-Party Defendant, ------------------------------------------------------------------X MONSTER CONCRETE, INC., Second Third-Party Plaintiff, -against- SAENZ CORPORATION, Second Third-Part Defendant, ------------------------------------------------------------------X Michael D. Schultz, an attorney duly admitted to practice law before the Courts of the State of New York hereby affirms the truth of the following pursuant to the penalties of 1 FILED: QUEENS COUNTY CLERK 01/25/2023 09:31 PM INDEX NO. 703827/2018 NYSCEF DOC. NO. 241 RECEIVED NYSCEF: 01/25/2023 perjury: 1. I am associated with the law office of SILBERSTEIN, AWAD & MIKLOS, P.C., the attorneys for the Plaintiff herein and as such I am fully familiar with the facts and circumstances surrounding the instant application. 2. I am respectfully submitting this Affirmation in Reply to JMJC HOLDING LLC, CBCS 39 LLC, 338 WEST 39TH STREET LLC, and BARONE MANAGEMENT LLC’s (collectively, the “Owner Defendants”) opposition to Plaintiff’s Application for an order: (1) Pursuant to CPLR § 3212 granting Plaintiff summary judgment against Defendants under Labor Law § 240(1); (2) Pursuant to CPLR § 3212 granting Plaintiff summary judgment against Defendants under Labor Law § 241(6) and Rules 12 NYCRR §§ 23-1.7(a)(1) and 23-2.2(a) and (b) of the Industrial Code; and (3) For such other and further relief as this Court deems just and proper. PRELIMINARY STATEMENT 3. While Plaintiff, WILSON MENDIETA, was working on the construction project at 338 West 39th Street, New York, New York 10018, he was struck in the head by a beam falling from the concrete form he was stripping. 4. To strip the concrete forms, Mendieta stood on the ground, in the middle of the form. As he did this, co-workers held beams up on the side. 5. Once Mendieta finished removing his beam, he was to walk out from the middle of the form and his co-workers would drop their beams. 6. But before Mendieta could move from the middle of the form, his co-worker, Armando Flores, unexpectedly dropped his beam. Armando Flores unexpectedly dropped his beam onto Mendieta’s head. 2 FILED: QUEENS COUNTY CLERK 01/25/2023 09:31 PM INDEX NO. 703827/2018 NYSCEF DOC. NO. 241 RECEIVED NYSCEF: 01/25/2023 7. In opposition to Mendieta’s motion for summary judgment under Labor Law §§ 240(1) and 241(6), the Owner Defendants launch a series of arguments at this Court hoping to create an issue of fact. 8. But all their arguments fail. 9. First, they argue that there is an issue of fact about whether Mendieta was struck by a falling beam in their building. 10. But the Owner Defendants rely on portions of deposition testimony from parties who admitted, under oath, that they could not remember the buildings. At the same time, one of those witnesses, Sonia Argueta, testified that the incident report that she created, which listed Mendieta’s incident as occurring in 338 West 39th Street, was accurate. 11. The Owner Defendants also rely on several unauthenticated documents, such as a photograph taken in a location no one knew and a not-disclosed “daily training log” that features countless blank spaces with no explanation. 12. With that in mind, unlike the unequivocal testimony and documentary evidence that Mendieta was injured in 338 West 39th Street, the Owner Defendants offer only a “shadowy semblance of an issue of fact.” 13. Second, the Owner Defendants argue that because the unsafe method of stripping forms that caused Mendieta’s injury was the same method always used by these parties, the unsafe method must be “safe.” But as Mendieta’s safety expert, John P. Coniglio, explained: this method of stripping forms was unsafe—no matter how many times it was used. 3 FILED: QUEENS COUNTY CLERK 01/25/2023 09:31 PM INDEX NO. 703827/2018 NYSCEF DOC. NO. 241 RECEIVED NYSCEF: 01/25/2023 14. Finally, The Owner Defendants argue that Mendieta was the sole proximate cause of his injuries because he failed to move out of the way of a falling beam. 15. Not only does this obliterate the purpose behind Labor Law § 240(1) but the lack of safety devices makes it “conceptually impossible” for Mendieta to have been the sole proximate cause of his injuries. 16. For these reasons, this Court should grant Mendieta’s motion against the Owner Defendants as a whole. MENDIETA WAS INJURED IN 338 WEST 39TH STREET THE DOCUMENTARY EVIDENCE REFLECTING MENDIETA’S INJURIES IN 338 WEST 39TH STREET CANNOT BE OVERCOME BY EQUIVOCAL TESTIMONY 17. In opposing Mendieta’s motion, the Owner Defendants seek to overcome documentary evidence showing that Mendieta was injured in 338 West 39th Street by relying on equivocal testimony from witnesses who testified that they were not sure that they were testifying accurately. 18. Indeed, the Owner Defendants highlight several portions of Sonia’s testimony about which building Mendieta was injured in. See The Owner Defendants’ Opposition ¶¶ 20-21. 19. Yet the Owner Defendants omit Sonia’s testimony that she obtained the address where Mendieta was injured because “back then [she] knew where [she] was at. [She] just don’t remember it at this point, but [she] knew what building [she] was in at the time.” See Exhibit “R” 118:15-20. 20. Although the Owner Defendants elicited this testimony from Sonia, they now seek to pretend that Sonia never admitted that she did not remember the buildings’ 4 FILED: QUEENS COUNTY CLERK 01/25/2023 09:31 PM INDEX NO. 703827/2018 NYSCEF DOC. NO. 241 RECEIVED NYSCEF: 01/25/2023 addresses when deposed three-and-a-half-years after the incident. 21. But unlike her shaky memory, Sonia testified that her incident report was accurate. 22. And her incident report stated, unequivocally, that Mendieta was injured in 338 West 39th Street. See Exhibit “BB.” 23. In the same way, Monster’s “Concrete Safety Manager Inspection Checklist” shows that Mendieta was injured. See “Exhibit E” annexed to The Owner Defendants’ Opposition. 24. John Moore IV, the concrete manager at 338 West 39th Street testified that he filled in this “Inspection Checklist.” See Exhibit “Q” 53:21-54:17. This log was an accurate reflection of the work Moore did on site on January 22, 2018. See id. 55:22-25. He wrote the note reflecting that Mendieta was injured. See id. 58:10-18. 25. Moore worked only in 338 West 39th Street; the building next door had a different concrete safety manager. See id. 91:22-92:17. 26. On that basis, for Moore to have learned of Mendieta’s injury, at all, it would have needed to have occurred in 338 West 39th Street. See id. 105:24-106:15. Otherwise, Mendieta’s incident would have been reported to the other concrete safety manager. See id. 27. This tracks with the testimony of Chris Karalis, who testified that when he first contacted Moore to ask about Mendieta’s incident after receiving the Summons and Complaint, Moore already knew about Mendieta’s incident. See Exhibit “O” 45:10-13; 65:20-68:19. 28. If anything, after both Monster and Mendieta alleged that Mendieta was injured at 338 West 39th Street in their Statements of Material Facts filed pursuant to 22 5 FILED: QUEENS COUNTY CLERK 01/25/2023 09:31 PM INDEX NO. 703827/2018 NYSCEF DOC. NO. 241 RECEIVED NYSCEF: 01/25/2023 NYCRR § 202.8-g, the Owner Defendants failed to file a Counter-Statement of Facts denying these facts. See generally Monster’s Statement of Material Facts; See also Mendieta’s Statement of Uncontested Facts. 29. Under 22 NYCRR § 202.8-g(c), this Court should deem these facts—and all facts contained within the two Statements of Material Facts—admitted by the Owner Defendants. 30. In the end, all the unequivocally accurate documentary evidence and testimony shows that Mendieta was injured in 338 West 39th Street. In contrast, only testimony that even the deponent admitted was unreliable points to Mendieta being injured elsewhere. 31. Put simply, all The Owner Defendants can proffer is the “shadowy semblance” of an issue of fact based on admittedly unreliable testimony. 32. This fails to raise a triable issue of fact precluding summary judgment. See S. J. Capelin Assoc., Inc. v Globe Mfg. Corp., 34 NY2d 338, 341 [1974] (quoting Hanrog Distrib. Corp. v Hanioti, 10 Misc 2d 659, 660 [Sup Ct, NY County 1945] (“A shadowy semblance of an issue is not enough to defeat the motion … The situation here is not one of a conflict in affidavits, but, rather, it is one where the writing executed by the parties and the very nature of the averments contained in the defendant’s affidavit show that the issue sought to be created is neither genuine nor substantial.”) (internal citations omitted)). 33. As a result, this Court should disregard the Owner Defendants’ attempts to create an issue of fact based on Sonia’s inability to remember the addresses of the two buildings three-and-one-half-years after the subject incident. 6 FILED: QUEENS COUNTY CLERK 01/25/2023 09:31 PM INDEX NO. 703827/2018 NYSCEF DOC. NO. 241 RECEIVED NYSCEF: 01/25/2023 THE PHOTOGRAPH DOES NOT RAISE AN ISSUE OF FACT ABOUT WHICH BUILDING MENDIETA WAS INJURED IN BECAUSE NO ONE KNEW WHERE, OR WHEN, THE PHOTOGRAPH WAS TAKEN 34. In the same way, the Owner Defendants’ arguments that the photograph of the beam that fell on Mendieta raises issues of fact about which building Mendieta was injured in fail because there is no testimony about when, or where, the photograph was taken. 35. Indeed, the Owner Defendants highlight that witnesses were shown the photograph of the beam that fell onto Mendieta and none of them could say that the photograph was taken on the third floor of 338 West 39th Street. See The Owner Defendants’ Opposition ¶¶ 25-27; 35. 36. But the Owner Defendants’ argument requires a leap of logic: that the photograph was taken where the beam fell. 37. There is no evidence bridging the Owner Defendants’ argument and the gap in their logic though. 38. No witness testified that they knew where the photograph was taken. Even Sonia, who “had one of the workers go back up to the incident location and take a photograph of the beam” was not present when the photograph was taken to know if the beam had been moved from where it fell before being photographed. See Exhibit “R” 77:7-78:4; 91:12-93:4. 39. With no evidence that the photograph of the beam was taken where the beam struck Mendieta, and not moved to a different location, the photograph holds no probative value about where Mendieta was injured. See generally Oleo v Charis Christian Ministries, Inc., 106 AD3d 521, 522 [1st Dept 2013] (“Defendants’ counsel’s 7 FILED: QUEENS COUNTY CLERK 01/25/2023 09:31 PM INDEX NO. 703827/2018 NYSCEF DOC. NO. 241 RECEIVED NYSCEF: 01/25/2023 unsubstantiated opinion that it would be ‘practically impossible’ for one to fall from the roof, since parapets and/or walls (shown in two photographs) would have stopped the fall, is wholly lacking in probative value. The two photographs were not authenticated, they depicted only small sections of the roof, there were portions of the roof’s edge that lacked a protective barrier, and no testimony was elicited from plaintiff as to the location on the roof he had fallen from.”) (internal citations omitted); See also Santiago v 44th St. Inv., LLC, 2013 WL 5596062 [Sup Ct, Bronx County 2013] (“The undated photographs of steps submitted in support of the motion are not authenticated and therefore inadmissible.”); Polanco v Creston Ave. Properties, Inc., 84 AD3d 1337, 1341 [2d Dept 2011]. 40. Thus, this learned Court should disregard any argument about where Mendieta was injured based on assumptions drawn from an unauthenticated photograph. THAT NO ONE REPORTED MENDIETA’S INJURIES TO THE OWNER DEFENDANTS DOES NOT RAISE A TRIABLE ISSUE OF FACT ABOUT WHICH BUILDING MENDIETA WAS INJURED IN 41. Similarly, just because no one reported Mendieta’s injuries to the Owner Defendants does not mean a triable issue of fact exists about whether Mendieta was not injured within 338 West 39th Street. 42. The Owner Defendants argue that no one from Barone was informed of Mendieta’s incident until Karalis received the Summons and Complaint. See The Owner Defendants’ Opposition ¶¶ 30-31. 43. This is unsurprising though: Saenz was not supposed to be working on the project. 44. Although Monster had to inform Barone if it subcontracted its work, Monster never informed Barone that it did subcontract its work to Saenz. See Exhibit “O” 46:15- 8 FILED: QUEENS COUNTY CLERK 01/25/2023 09:31 PM INDEX NO. 703827/2018 NYSCEF DOC. NO. 241 RECEIVED NYSCEF: 01/25/2023 47:3. 45. Like Karalis only learned of Mendieta’s injuries after receiving Mendieta’s Complaint, Karalis only learned that Monster subcontracted its work after receiving Mendieta’s Complaint. See id. 44:14-45:13. 46. With that in mind, neither Monster nor Saenz would have any reason to report a Saenz employee being injured to the Owner Defendants who were, specifically, not told that Saenz was even working on the project. 47. In fact, Monster and Saenz’s refusing to notify others of their subcontracting agreements is the subject of its own separate lawsuit. See Complaint in Declaratory Judgment Action annexed hereto as Exhibit “DD.” 48. Thus, that neither Monster nor Saenz reported that a worker who was not supposed to be on site was injured, on site, does not raise any issues of fact about whether that worker was injured on the site he was not supposed to be on. 49. That no one reported Mendieta’s incident to the Owner Defendants says more about Monster’s improper subcontracting than it does Mendieta’s being in a building that the Owner Defendants had no connection to. 50. If anything, the Owner Defendants are applying the well-known logical fallacy of the “Negative Premise.” As Justice Gerald Lebovits explained, the fallacy of the negative premise “occurs in syllogisms that draw a positive conclusion from a negative premise.” See Gerald Lebovits, Say It Ain’t So: Leading Logical Fallacies in Legal Argument - Part 1, NY St BJ, July/August 2016, at 64, 59 (citing Stephen M. Rice, False Persuasion, Superficial Heuristics, and the Power of Logical Form to Test the Integrity of Legal Argument, 34 Pace L. Rev. 76 (2014)). Stephen M. 9 FILED: QUEENS COUNTY CLERK 01/25/2023 09:31 PM INDEX NO. 703827/2018 NYSCEF DOC. NO. 241 RECEIVED NYSCEF: 01/25/2023 Rice explained the fallacy of the negative premise by quoting Judge Ruggero J. Aldisert, the author of Logic for Lawyers: A Guide to Clear Legal Thinking, in his dissent in Walmsley v City of Phila., 872 F2d 546, 554 [3d Cir 1989], in which Judge Aldisert explained that When an advocate determines that there is no evidence that B (bumps on the head) is the case; he or she is attempting to affirm or assume that non-B is the case. But all that is affirmed or assumed is that the advocate has found no evidence of non-B. The correct method of proceeding is to find affirmative evidence of non-B. This may be difficult, but it is absolutely necessary if logical order is to be preserved. 51. Judge Aldisert then concluded that “[n]ot knowing that something exists is simply not knowing. Similarly, not knowing that Walmsley hit his head during the fight with his brother does not imply that he did or did not hit his head.” See id.; See also U.S. vs. Forstmann, 1940 AMC 1089 [SDNY 1940] (“We find difficulty in accepting a conclusion based entirely on the wholly negative premise.”). 52. Similarly, the Owner Defendants try to prove the non-existence of Mendieta’s injuries in their building by relying on the evidence that they were not told about the incident. 53. To paraphrase Judge Aldisert, “not knowing that Mendieta was injured in their building does not imply that he was or was not injured in their building.” 54. In short, that Monster and Saenz chose not to report Mendieta’s incident to Barone, or any Owner Defendant, does not raise an issue of fact about whether Mendieta was injured in their building. Rather, it is just another attempt to point to a “shadowy semblance” of an issue to try avoiding summary judgment. 55. On that basis, this Court should grant Mendieta’s motion in its entirety. 10 FILED: QUEENS COUNTY CLERK 01/25/2023 09:31 PM INDEX NO. 703827/2018 NYSCEF DOC. NO. 241 RECEIVED NYSCEF: 01/25/2023 THE DAILY TRAINING LOG IS INCOMPLETE AND THUS CANNOT PROVE THAT MENDIETA DID NOT WORK IN 338 WEST 39TH STREET 56. Since the Daily Training Log submitted by the Owner Defendants is incomplete, it cannot establish that Mendieta did not work in 338 West 39th Street. 57. At the outset, Mendieta is not sure this Daily Training Log, attached to the Owner Defendants’ Opposition as “Exhibit D,” was ever exchanged. Mendieta is sure though that this Daily Training Log, at least, was never exchanged based on its “date” reading “12/1/2022,” which was almost one month after Mendieta filed his motion. See id. This December 2022 “date” also calls into question whether this document was accessed that day, printed that day, or created that day. 58. No matter, the Daily Training Log fails to raise a triable issue of fact about whether Mendieta worked at 338 West 39th Street because the log includes countless blank spaces. 59. For instance, on the fifth page of the document, Orientation Number 140 is a “Monster” employee who has no name. See id. p. 5. 60. And Orientation Numbers 93, 488, 503, 519, 614, 618, 669, 684, 685, 856, 980, 986, and 998 have no name, job title, employer, date training card reviewed, or expiration of date of card. See id. 61. Orientation Number 743, meanwhile, is named “Void,” and has no job title, employer, date training card reviewed, or expiration of date of card but does, apparently, have an OSHA 30-hour card. See id. 62. In brief, there are countless questions about the accuracy of this document, which has not been exchanged before, and thus not subject to cross-examination to clarify these questions. 11 FILED: QUEENS COUNTY CLERK 01/25/2023 09:31 PM INDEX NO. 703827/2018 NYSCEF DOC. NO. 241 RECEIVED NYSCEF: 01/25/2023 63. Thus, this questionable document cannot, and does not, raise any triable issues of fact about what building Mendieta was in when a beam fell onto his head. See generally Polanco, 84 AD3d at 1341 (“However, that report does not specify the level of lead found in that area of the basement apartment and, as the plaintiffs correctly acknowledge in their brief, the report was not authenticated. Thus, the report should not have been considered in opposition to the Rodriguezes’ cross motion for summary judgment, since it was not in admissible form.”). 64. And so, this Court should grant Mendieta summary judgment. MENDIETA WAS NOT PROVIDED ADEQUATE SAFETY DEVICES 65. Turning to the merits of the Labor Law violations, the Owner Defendants argue that Mendieta’s arguments are “contrary to the objectives of the performance of the work.” See The Owner Defendants’ Opposition Point II. 66. Indeed, the Owner Defendants argue that the testimony shows that the method used in stripping the forms when Mendieta was injured was the method always used. This, they argue makes the method safe. 67. But Mr. Coniglio, a practicing safety professional with over 40 years of experience in the construction, heavy industry, process (chemical) and commercial areas with several degrees from the SUNY system including a B.S. (Industrial Technology), AAS (Civil & Fire Protection Technologies), and an MS Degree from Columbia Southern University in Occupational Safety and Health Management, submits a Supplemental Affidavit, responding to the arguments raised by the Owner Defendants and their engineer, Mr. Ernest J. Gailor. See Mr. Coniglio’s Supplemental Affidavit annexed hereto as Exhibit “EE.” 12 FILED: QUEENS COUNTY CLERK 01/25/2023 09:31 PM INDEX NO. 703827/2018 NYSCEF DOC. NO. 241 RECEIVED NYSCEF: 01/25/2023 68. Mr. Coniglio concludes that “[s]tripping the forms by having a person stand under the form where beams and pipes would fall is unsafe no matter how many times Saenz did this.” See id. ¶ 10. If anything, Mr. Coniglio explained that “[p]lacing a person where beams and pipes would fall is asking for a person to be hit in the head by a falling beam or pipe, which is exactly what happened to Mendieta.” See id. 69. In contrast, Mr. Coniglio explained in his first Affidavit that platforms, such as rolling scaffolds, should have been used to allow the workers to obtain elevation and remove the beams from the concrete form. See Exhibit “CC” ¶ 11. 70. In opposition to Mr. Coniglio’s opinions, Mr. Gailor accuses Mr. Coniglio of not having the proper qualifications to opine about concrete form removal yet fails to attach his own curriculum vitae to his Affidavit. See Affidavit annexed to The Owner Defendants’ Opposition. Thus, ifeither expert failed to provide adequate qualifications for their opinions, it was Mr. Gailor. 71. In any event, Mr. Gailor claimed that “Mr. Coniglio’s ‘suggestion’ as to how the stripping should be performed would be physiologically impossible under the circumstances.” See id. ¶ 9. 72. But Mr. Coniglio provides four examples showing how concrete forms should be removed. See Exhibit “EE” ¶¶ 13-16. Not surprisingly, all four videos show workers stripping the forms from elevated platforms. See id. 73. In other words, Mr. Coniglio’s “suggestion” about how the concrete form should have been removed was not “physiologically impossible”; it was both physiologically possible and the preferred, safe method to be used. 74. In fact, on another job site, a Saenz employee was injured when he fell off a ladder 13 FILED: QUEENS COUNTY CLERK 01/25/2023 09:31 PM INDEX NO. 703827/2018 NYSCEF DOC. NO. 241 RECEIVED NYSCEF: 01/25/2023 while “stripping” the floor. See Rivera Employee Incident Report annexed hereto as Exhibit “FF.” 75. Perhaps this explains why the Owner Defendants avoid ever discussing the factually similar case of Mulvihill v Brooklyn Law School, 22 Misc 3d 1114(A) [Sup Ct, Kings County 2009], cited by Mendieta in his Memorandum of Law in Support. 76. To that end, as Mendieta explained in his Memorandum of Law in Support, although the defendants in Mulvihill argued that it was necessary for the pieces of the concrete form to fall to the ground, the Supreme Court, Kings County held that “[t]he stringer and ribs are properly regarded as part of a load that required securing, even during the stripping process where legs were gradually removed.” See id. (emphasis added). 77. On that basis, the Supreme Court, Kings County found that the plaintiff was entitled to summary judgment under Labor Law § 240(1) “by demonstrating that the absence of a safety device of the kind enumerated in the statute proximately caused [his] injury” because “it was “undisputed that no protective device designed to catch the falling [stringer] was utilized in connection with the work.” See id. 78. In the same way, the Supreme Court, Kings County found that the plaintiff was entitled to summary judgment under Labor Law § 241(6). See id. 79. Since these same principles apply equally forcefully here, this Court should grant Mendieta summary judgment under Labor Law §§ 240(1) and 241(6). MENDIETA WAS NOT THE SOLE PROXIMATE CAUSE OF HIS INJURIES 80. Finally, Mendieta was not the sole proximate cause of his injuries for not moving 14 FILED: QUEENS COUNTY CLERK 01/25/2023 09:31 PM INDEX NO. 703827/2018 NYSCEF DOC. NO. 241 RECEIVED NYSCEF: 01/25/2023 out from the under the form fast enough to avoid the falling beam that Armando Flores released with no warning. 81. Indeed, “[u]nder Labor Law § 240(1) it is conceptually impossible for a statutory violation (which serves as a proximate cause for a plaintiff’s injury) to occupy the same ground as a plaintiff’s sole proximate cause for the injury.” See Blake v Neighborhood Hous. Services of New York City, Inc., 1 NY3d 280, 290 [2003] (emphasis added). “Thus, if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it.” Id. (emphasis added). 82. Put another way, “contributory negligence will not exonerate a defendant who has violated the statute and proximately caused a plaintiff’s injury.” See id. at 286. 83. Because Mendieta was suffered to work under the concrete form that he was stripping, with no overhead protection, or elevated platform to allow the parts of the form to drop a shorter distance—rather than freefall to the ground—he was not provided any adequate safety devices. 84. Put simply, how slowly Mendieta moved from the center of the form is irrelevant because the violations of Labor Law §§ 240(1) and 241(6) preclude finding that Mendieta was the sole proximate cause of his injuries. 85. Similarly, the Owner Defendants’ reliance on Armando Flores’s statement is misplaced as it is inadmissible hearsay. 86. First, the “translation” of the statement is questionable, at best, given that the statement was made in Spanish and translated by Sonia, at her Examination Before Trial, where she admitted that she had trouble understanding the statement. See Exhibit “R” 81:1-83:17. Above all, when referring to the last sentence in the 15 FILED: QUEENS COUNTY CLERK 01/25/2023 09:31 PM INDEX NO. 703827/2018 NYSCEF DOC. NO. 241 RECEIVED NYSCEF: 01/25/2023 statement, Sonia exclaimed that “[t]he last sentence I don’t really get. I don’t understand it….” See id. 82:8-83:5. 87. Second, the statement is hearsay. 88. Presupposing that the Owner Defendants will try to argue that the statement is a part of Sonia’s report, and thus admissible as a business record, there has been no evidence that Armando Flores was under a business duty to give this statement. 89. To that end, “each participant in the chain producing the record, from the initial declarant to the final entrant, must be acting within the course of regular business conduct or the declaration must meet the test of some other hearsay exception.” See Matter of Leon RR, 48 NY2d 117, 122 [1979]. “Thus, not only must the entrant be under a business duty to record the event, but the informant must be under a contemporaneous business duty to report the occurrence to the entrant as well.” Id. 90. That Armando Flores gave his statement after Sonia created her report reveals Sonia’s report did not include his statement or any of his opinions, revealing that Armando Flores was under no business duty to contemporaneously report the occurrence. See generally Exhibit “R” 87:2-13. And the second co-worker, Hugo Castillo, refusing to “cooperate” with Sonia to the point that Sonia did not even list him as a witness on her report only further reveals that the workers were under no business duty to report the occurrence. See id. 154:2-11. 91. All in all, Mendieta was not the sole proximate cause of his injuries. CONCLUSION 92. For these reasons, it is respectfully requested that this Court grant Mendieta’s motion in its entirety. 16 FILED: QUEENS COUNTY CLERK 01/25/2023 09:31 PM INDEX NO. 703827/2018 NYSCEF DOC. NO. 241 RECEIVED NYSCEF: 01/25/2023 WHEREFORE, the Plaintiff respectfully request that the Court issue an Order granting Plaintiff’s motion in its entirety and grant Plaintiff such other and further relief as this honorable Court may deem just and proper. Dated: Garden City, New York January 25, 2023 __________________________________ Michael D. Schultz 17 FILED: QUEENS COUNTY CLERK 01/25/2023 09:31 PM INDEX NO. 703827/2018 NYSCEF DOC. NO. 241 RECEIVED NYSCEF: 01/25/2023 CERTIFICATION In accordance with Rule 202.8-b of the Uniform Civil Rules for the Supreme Court and the County Court, the undersigned certifies that the word count in this REPLY AFFIRMATION (excluding the caption, table of contents, table of authorities, signature block, and this certification), as established using the word count on the word-processing system used to prepare it, is 4,120 words. Dated: Garden City, New York January 25, 2023 _______________________________________ MICHAEL D. SCHULTZ SILBERSTEIN, AWAD & MIKLOS, P.C. Attorneys for Plaintiff WILSON MENDIETA 600 Old Country Road, Suite 505 Garden City, New York 11530 T. (516) 832-7777 Our File No.: 8146 18 FILED: QUEENS COUNTY CLERK