Motion,Ex Parte: Jose Gomez v. 91-93 Franklin Llc, Y.N.H. Construction Inc., Alpine Ready Mix Inc.

On December 20, 2019 a Motion,Ex Parte was filed involving a dispute between Jose Gomez, and 91-93 Franklin Llc, Alpine Ready Mix Inc., Y.N.H. Construction Inc., for Torts - Other (Labor Law) in the District Court of Kings County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
-----------------------------------------X
JOSE GOMEZ , Index No.
527680/2019
Plaintiff,

-against-

91-93 FRANKLIN, LLC, Y.N.H. CONSTRUCTION
INC., and ALPINE READY MIX,

Defendants.
-----------------------------------------X

PLAINTIFF’S MEMORANDUM OF LAW IN REPLY
TO DEFENDANTS 91-93 FRANKLIN, LLC
AND Y.N.H. CONSTRUCTION’S OPPOSITION
TO PLAINTIFF’S CROSS-MOTION FOR PARTIAL
SUMMARY JUDGMENT AS TO LIABILITY ON
HIS LABOR LAW §241[6] CLAIM

Michael H. Zhu, Esq.
Morgan Levine Dolan, PC
Attorneys for Plaintiff
Jose Gomez
18 East 41st Street, 6th Floor
New York, New York 10017

mzhu@mzhulaw.com

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TABLE OF CONTENTS

TABLE OF AUTHORITIES..........................................i

PRELIMINARY STATEMENT.........................................1

WHEREFORE....................................................12

PRINTING SPECIFICATION STATEMENT.............................13

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TABLE OF AUTHORITIES

Page(s)
Cases

Amatulli v. Delhi Constr.,
77 NY2d 525 [1991] ...........................................12
Belding v. Verizon,
65 AD3d 414 [1st Dept. 2009] ...............................8, 9
Brady v City of New York,
52 AD3d 331, 859 NYS2d 193 [1st Dept 2008] ....................6
Bundo v. 10-12 Cooper Sq., Inc.,
140 AD3d 535 [1st Dept. 2016] .................................8
Cappiello v. Telehouse Intern. Corp. of America, Inc.,
193 AD2d 478 [1st Dept. 1993] ...........................3, 5, 7
Cassano v. Hagstrom,
5 NY2d 643 [1959] ............................................12
Diaz v. N.Y. Downtown Hosp.,
99 NY2d 542 [2002] ...........................................12
Fox v. H&M,
83 AD3d 889 [2d Dept. 2011] ...................................9
Galarza v. Lincoln Center for the Performing Arts, Inc.,
32 Misc.3d 1226(A) [Sup Ct NY Cty, 2011] ...................3, 7
Markey v. C.F.M.M. Owners Corp.,
51 AD3d 734 [2d Dept. 2008] ...................................8
Masullo v. 1199 Housing,
63 AD3d 430 [1st Dept. 2009] ..................................8
McByrne v. Ambassador Construction Co., Inc.,
290 AD2d 243 [1st Dept. 2002] ..............................3, 6
Montenegro v. P12, LLC,
130 AD3d 695 [2d Dept. 2015] ...............................3, 5
O'Connor v. Serge Elevator Co.,
58 NY2d 655 [1982] ............................................9
Paulino v. Bradhurst Associates, LLC,
144 AD3d 430 [1st Dept. 2016] ..............................3, 5
Prats v. The Port Authority,
100 NY 878 [2003] ..........................................8, 9
Quiros v. Five Star Improvements, Inc.,
134 AD3d 1493 [4th Dept. 2015] .............................3, 5
Rapp v. Zandri Const. Corp.,
165 AD2d 639 [3d Dept. 1991] ...............................3, 5
Reale v. H.B.S.A. Industries, Incorporated,
233 AD2d 923 [4th Dept. 1996] .................................9

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Saint v. Syracuse Supply,
25 NY3d 117 [2015] ............................................9
Shaffer v. Westchester Crane Service, Inc.,
37 AD2d 984 [2d Dept. 1971] ..................................10
Shaheen v. International Business Machines Corp.,
157 AD2d 429 [3d Dept. 1990] ...............................3, 6
Sheley v. Kingsfort Builders, Inc.,
207 AD3d 1155 [4th Dept. 2022] .............................3, 5
Sweeting v. Board of Cooperative Education Services,
83 AD2d 103 [4th Dept. 1981] .................................10
Weber v. New York,
24 AD2d 618 [2d Dept. 1965] ..................................12
Wijesinghe v. Buena Vida Corp.,
210 AD3d 824 [2d Dept. 2022] .................................11
Willis v. Plaza Const. Corp.,
151 AD3d 568 [1st Dept. 2017] ...........................3, 4, 7
Withopf v. Rapid Transit Services, Inc.,
210 AD3d 827 [2d Dept. 2022] .................................11

Statutes

Labor Law §241[6] ....................................1, 4, 5, 12

Regulations

12 NYCRR §23-1.8 ..........................................Passim

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PRELIMINARY STATEMENT

1. This memorandum of law is submitted by Morgan Levine

Dolan, P.C., attorneys of record for plaintiff Jose Gomez in reply

to the arguments raised by defendants 91-93 Franklin, LLC

(defendant owner) and Y.N.H. Construction Inc. (defendant general

contractor) and in further support of plaintiff’s motion for

partial summary judgment as to liability against defendant owner

and general contractor on the Labor Law §241[6] claim.

2. Assuming familiarity with the motion papers and exhibits

before this Court, we respond directly to the arguments raised by

defendants through the attorney’s affirmation of Christopher M.

Carfora, Esq.

[a]

Prefatorily, we note that defendants do not oppose that part

of our motion seeking an extension of time to move for summary

judgment.

[b]

3. Defendants contend that our motion should be denied

because we failed to comply with the rules regarding a Statement

of Material Facts (“SOMF”) because we have “included lengthy

conflations of purported facts, which are in controversy, and

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purported controlling law.” (Carfora Aff, ¶7) This argument is

meritless.

4. A cursory review of the SOMF shows that it contains

numbered paragraphs with citations to the pages of the transcript

of the witnesses under consideration. There is no editorializing

of the testimony, and certainly no “lengthy conflations” of the

testimony. Nor have we discussed any “purported controlling law”

in our SOMF or mixed in “an attorney’s statement”. (Carfora Aff,

¶9)

5. The SOMF is proper in all respects and defendants’

citation and discussion of cases are inapt since they are factually

distinguishable and not authoritative. As such, defendants’

procedural argument is meritless and should be rejected as a matter

of law.

[c]

6. Substantively, defendants argue that our motion for

partial summary judgment should be denied because 12 NYCRR §23-

1.8[a] is not applicable to the facts in this case as the work

plaintiff was engaged in at the time of the incident did not

“endanger the eyes”. (Carfora Aff, ¶¶ 18-19)

7. This argument is erroneous as the plaintiff was most

certainly injured “while engaged in any other operation which may

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endanger the eyes.” Indeed, there are many cases which hold that

this regulation is applicable even though the work does not involve

welding, burning, cutting, chipping, or grinding. See, Montenegro

v. P12, LLC, 130 AD3d 695 [2d Dept. 2015]; Sheley v. Kingsfort

Builders, Inc., 207 AD3d 1155 [4th Dept. 2022]; Quiros v. Five Star

Improvements, Inc., 134 AD3d 1493 [4th Dept. 2015]; Willis v. Plaza

Const. Corp., 151 AD3d 568 [1st Dept. 2017]; Paulino v. Bradhurst

Associates, LLC, 144 AD3d 430 [1st Dept. 2016]; McByrne v.

Ambassador Construction Co., Inc., 290 AD2d 243 [1st Dept. 2002];

Cappiello v. Telehouse Intern. Corp. of America, Inc., 193 AD2d

478 [1st Dept. 1993]; Rapp v. Zandri Const. Corp., 165 AD2d 639 [3d

Dept. 1991]; Shaheen v. International Business Machines Corp., 157

AD2d 429 [3d Dept. 1990]; Galarza v. Lincoln Center for the

Performing Arts, Inc., 32 Misc.3d 1226(A) [Sup Ct NY Cty, 2011].

While we cited to many of these cases in our motion-in-chief, the

defendants failed to address them or distinguish them.

8. In Willis, the plaintiff sustained severe injuries to

his eyes when a hose burst and splashed liquid cement onto his

face. In opposition to defendants’ motion for summary judgment,

plaintiff argued that he should have been provided with proper eye

protection. The trial Court denied the motion insofar as seeking

dismissal of the 12 NYCRR §23-1.8[a] claim, the First Department

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affirmed and held: “Nevertheless, the motion court correctly

sustained the Labor Law §241[6] claim predicated on 12 NYCRR §23–

1.8[a] and (c)(4)”. Willis, 151 AD3d at 568.

9. The holding in Willis is also significant because it

refutes defendants’ foreseeability argument. (Carfora Aff, ¶¶ 19-

20) Specifically, if this regulation was held to be applicable in

a case where liquid cement splashed into a worker’s eye because

the hose ruptured, then clearly, the same regulation is applicable

in our case where wet concrete was poured directly onto the ground

and splashed into plaintiff’s eye. There is no discernible

distinction between Willis and the case at bar. As such, the

Court’s holding in Willis should be outcome determinative.

10. In Montegegro, the plaintiff was employed as a carpenter

on a renovation project at a building owned by the defendant and

sustained personal injuries when a nail shot out of a pneumatic

nail gun and struck his left eye. Defendant moved for summary

dismissal of the Labor Law §241[6] claim contending that 12 NYCRR

§23-1.8[a] was not applicable because the worker was not engaged

in a protected activity. The trial Court granted the motion, but

the Second Department reversed, holding that this regulation

requires “the furnishing of eye protection equipment to employees

who, inter alia, are ‘engaged in any . . . operation which may

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endanger the eyes.’” Montenegro, 130 AD3d at 696. See also, Rapp,

165 AD2d at 643 (plaintiff who sustained an eye injury when a

coworker fired a pneumatic staple gun at the plaintiff’s feet, and

one of the staples ricocheted and struck the carpenter in the eye,

was entitled to protection under this regulation); Sheley, 207

AD3d at 1155 (eye injury sustained while using a nail gun to

perform framing work was protected by §23.1.8[a]); Cappiello, 193

AD2d at 479 (eye injury caused when a nail plaintiff was driving

into plywood and concrete “flew back” and struck him in the left

eye was covered by this regulation); Quiros, 134 AD3d at 1494

(same); Paulino, 144 AD3d at 430 (eye injury caused when a screw

plaintiff was driving into sheetrock sprang back and struck him in

the eye was covered by this regulation).

11. In McByrne, plaintiff was standing on a ladder when a

data cable swung and a wire struck him in the eye, causing injury.

The Appellate Division reversed that part of the order which

dismissed plaintiff’s Labor Law §241[6] claim predicated on a

violation of 12 NYCRR §23-1.8[a]:

But, as to the cause of action brought under Labor Law
section 241[6], we believe that an issue is presented as
to whether plaintiff's injury is attributable to a
violation of 12 NYCRR 23–1.8[a], which provides that
“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
5

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any material from which particles may fly, or while
engaged in any other operation which may endanger the
eyes” (emphasis added) (cits).

McByrne, 290 AD2d at 243-244 (emphasis original). See also, Shaheen,

157 AD2d at 433 (regulation potentially applicable in a case where

the plaintiff was standing on a ladder installing electrical

conduit when she turned her head and was struck in the eye by a

wire suspended from the ceiling).

12. In Galarza, plaintiff was engaged in the removal of

asbestos panels from a 20-feet high roofed ceiling when a piece of

asbestos-contaminated dirt fell into his left eye through an

opening between his goggles and his face, causing severe injury to

his eye. Although he was wearing safety glasses, there was a gap

between the glasses and the area just above his eye brows.

13. Defendants moved to dismiss the 12 NYCRR §23-1.8[a]

claim arguing that plaintiff was not engaged in “welding, burning

or cutting operations”. The Court denied the defendants’ motion

and held:

Contrary to defendants' contention that §23-1.8 (a)
applies only to workers involved in “welding, burning or
cutting operations,” this section has been interpreted
by the courts as a broad safety requirement protecting
employees “engaged in any other operation which may
endanger the eyes” (see Brady v City of New York, 52
AD3d 331, 859 NYS2d 193 [1st Dept 2008], citing McByrne
v Ambassador Constr. Co., 290 AD2d 243, 243-244
[sustaining a 241 (6) claim predicated on 12 NYCRR 23-

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1.8 (a)]; Cappiello v Telehouse Intl. Corp. of Am., 193
AD2d 478, 479, 597 NYS2d 393 [1st Dept 1993]).

Galarza, 32 Misc.3d at *13.

14. In this case, while we freely concede that plaintiff was

not engaged in welding, burning, cutting, chipping, or grinding at

the time of the incident, this is irrelevant and this Court should

decline to adopt defendants’ “extremely narrow interpretation of

the safety requirement which gives virtually no weight to the broad

reference, in 12 NYCRR 23–1.8[a], to employees ‘engaged in any

other operation which may endanger the eyes.’” Cappiello, 193 AD2d

at 479-480.

15. The testimony in the record is clear. Pouring wet

concrete, which is a corrosive substance capable of causing

chemical burns (Willis, supra), directly onto the ground is

dangerous and violated Alpine’s rules. (Exhibit E, 59-60, 67, 107-

108) Nor is there any dispute that safety goggles were not provided

to the plaintiff. Indeed, Jose testified he asked several people

for safety goggles, including his foreman, a worker employed by

the general contractor, and his manager. They each told him no

safety goggles were available. (Exhibit D, 53-56, 58-61, 75) This

testimony was not refuted by the defendants.

16. The defendants’ failure to provide adequate eye

protection was a proximate cause of plaintiff’s injuries.
7

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Therefore, he is entitled to an award of partial summary judgment

as to liability in his favor. See, Markey v. C.F.M.M. Owners Corp.,

51 AD3d 734 [2d Dept. 2008]; Bundo v. 10-12 Cooper Sq., Inc., 140

AD3d 535 [1st Dept. 2016] (plaintiff entitled to partial summary

judgment as to liability where he sustained injuries to his eye

without wearing protective goggles that had side protection).

[d]

17. Equally meritless is defendants’ contention that at the

time of the incident plaintiff was not performing “construction

work” since his job was only to observe the work and take progress

photos. (Carfora Aff, ¶¶ 4, 19) To the contrary, defendants’

attempt “to isolate the moment of injury and ignore the general

context of the work” is “neither pragmatic nor consistent with the

spirit of the statute”. Prats v. The Port Authority, 100 NY 878,

882 [2003]. See also, Belding v. Verizon, 65 AD3d 414 [1st Dept.

2009]; Masullo v. 1199 Housing, 63 AD3d 430 [1st Dept. 2009].

18. The Court of Appeals in Prats stated that although at

the instant of the injury plaintiff was inspecting the work, he

had done other work on other days at the same job site on the same

project and was a “member of a team that undertook an enumerated

activity under a construction contract.” Prats, 100 NY2d at 882.

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This is exactly what Jose testified to at his deposition. (Exhibit

E, 27-28, 42)

19. Thus, any determination as to whether particular work

falls within the scope of construction, demolition, or excavation

protected by the Labor Law depends on a “confluence of factors”

and the full “context of the work.” Prats, supra, at 883; Fox v.

H&M, 83 AD3d 889 [2d Dept. 2011]. This test requires an inquiry

into whether the work: fell “into a separate phase easily

distinguishable from other parts” of a larger project and occurred

after the work was completed; or was “ongoing and contemporaneous”

with other work that formed part of a single project or contract.

Prats, supra, at 881; Belding, supra, at 415-416; Fox, supra, at

890.

20. It is important not to compartmentalize a plaintiff’s

activity and exclude from the statute’s coverage work essential to

the enumerated act. Saint v. Syracuse Supply, 25 NY3d 117 [2015].

21. Indeed, courts have consistently held that the coverage

of the Labor Law extends to workers even those taking a coffee

break or returning or going to lunch. See, O'Connor v. Serge

Elevator Co., 58 NY2d 655, 657 [1982] (plaintiff had been injured

“when he was struck by one of Serge's elevators while leaving his

workplace for lunch”); Reale v. H.B.S.A. Industries, Incorporated,

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233 AD2d 923, 924 [4th Dept. 1996] (noting, parenthetically, that

the plaintiff, who fell from a “concrete block wall”, sustained

his accident “(w)hile on his way to lunch”); Sweeting v. Board of

Cooperative Education Services, 83 AD2d 103, 105 [4th Dept. 1981],

lv. den., 56 NY2d 503 [1982] (noting, in passing, that decedent

was on his way “to take a coffee break” when he was

electrocuted); Shaffer v. Westchester Crane Service, Inc., 37 AD2d

984, 985 [2d Dept. 1971] (where the Court split on whether

contributory negligence on the part of the plaintiff could be a

defense to plaintiff's § 241 action ... but no one doubted that

the statute applied even though plaintiff's fall occurred as he

was returning from “a coffee break”). If the scope of the statute

covers workers who leave or come back to the worksite for lunch or

a coffee break, then certainly it covers Jose’s work as a competent

person on this worksite.

22. In this case, it is beyond cavil Jose was employed as a

competent person by Capital Concrete and his duties include walking

around worksites taking progress photos, entering data of the

concrete work through an app called “Raken”, and helping other

coworkers with their concrete work. (Exhibit D, 14-16, 27-28, 42)

The scope of the work was to construct a five-story building.

(Exhibit D, 29)

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23. Defendants’ argument that plaintiff was only taking

progress photographs at the time of the incident ignores the

context of the work. The focus should be on the plaintiff being a

part of a team of concrete workers who performed work pursuant to

a written contract worth $1,315,000. (Exhibit N)

[e]

24. Defendants’ reliance on an affidavit of professional

engineer Michael Cronin should be rejected because Mr. Cronin

ignores the last sentence of the regulation, and fails to address

whether working with wet concrete may endanger the eyes. Instead,

the expert repeats defense counsel’s argument that the regulation

is not applicable because “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.” Cronin Aff, ¶9.

25. Mr. Cronin also offers conclusory opinions, without any

foundation in evidence, that Jose’s work did not require him to be

in close proximity to the pour and that it was not foreseeable

that wet concrete could splash when dropped from a chute onto the

ground. However, courts have routinely rejected expert opinions

which are conclusory. See, Wijesinghe v. Buena Vida Corp., 210

AD3d 824 [2d Dept. 2022]; Withopf v. Rapid Transit Services, Inc.,

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210 AD3d 827 [2d Dept. 2022]; Cassano v. Hagstrom, 5 NY2d 643, 646

[1959]; Diaz v. N.Y. Downtown Hosp., 99 NY2d 542 [2002]; Amatulli

v. Delhi Constr. Co., 77 NY2d 525 [1991]. As the Second Department

in Weber v. New York, 24 AD2d 618 [2d Dept. 1965], affd. 17 NY2d

790 [1966] aptly stated, “[w]ords put in the form of an opinion

uttered by the witness, even though he be an expert, cannot create

an issue of fact when the factual basis for the opinion does not

sustain his conclusions.”

26. As such, Mr. Cronin’s failure to address the last

sentence of the regulation, and his conclusory opinions lack

probative value, and should be rejected as a matter of law. Diaz,

supra.

WHEREFORE, based on the foregoing, it is respectfully

submitted that this Court should issue an order granting plaintiff

an extension of 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, awarding partial summary judgment as

to liability against defendants 91-93 Franklin and YNH on the Labor

Law §241[6] claim.

Dated: New York, New York
January 3, 2023

_____________________
Michael H. Zhu, Esq.
12

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PRINTING SPECIFICATIONS STATEMENT

It is hereby certified pursuant to 22 NYCRR §202.8-b(c)
that the foregoing document was prepared on a computer.
Type: A proportionally spaced typeface was used as follows:

Name of typeface: Courier New

Point size: 12

Line spacing: Double

Word Count: The total number of words in foregoing document,
inclusive of point headings and footnotes and exclusive of pages
containing the table of contents, table of authorities, proof of
service, printing specifications statement, or any authorized
addendum containing statutes, rules, regulations, etc. is 2569.
Dated: New York, New York
January 3, 2023

________________________
Michael H. Zhu, Esq.

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Montenegro v. P12, LLC, 130 A.D.3d 695 (2015)
13 N.Y.S.3d 241, 2015 N.Y. Slip Op. 05919

MARK C. DILLON, J.P., JOHN M. LEVENTHAL,
130 A.D.3d 695
JEFFREY A. COHEN, and JOSEPH J. MALTESE, JJ.
Supreme Court, Appellate Division, Second
Department, New York. Opinion

Marco E. MONTENEGRO, appellant,
v. *695 In an action to recover damages for personal injuries,
P12, LLC, respondent. the plaintiff appeals, as limited by his brief, from so much
of an order of the Supreme Court, Queens County
July 8, 2015. (Sampson, J.), dated June 30, 2014, as granted that branch
of the defendant’s motion which was for summary
judgment dismissing the cause of action alleging a
Synopsis violation of Labor Law § 241(6) insofar as it was
Background: Carpenter brought action against site owner, predicated upon 12 NYCRR 23–1.8(a).
alleging violation of workplace safety statute applicable to
owners, and statute requiring owners to provide reasonable ORDERED that the order is reversed insofar as appealed
and adequate protection and safety for workers, when he from, on the law, with costs, and that branch of the
sustained injuries after being hit in left eye with a nail while defendant’s motion which was for summary judgment
using a pneumatic nail gun to attach molding around a dismissing the cause of *696 action alleging a violation of
window. The Supreme Court, Queens County, Sampson, Labor Law § 241(6) insofar as it was predicated upon 12
J., dismissed cause of action alleging violation of statute NYCRR 23–1.8(a) is denied.
requiring owner to provide reasonable and adequate
protection and safety for workers. Carpenter appealed. The plaintiff was employed as a carpenter on a renovation
project at premises owned by the defendant. The plaintiff
alleged that, while using a pneumatic nail gun to attach
molding around a window, he was hit in the left eye with a
Holdings: The Supreme Court, Appellate Division, held nail and sustained injury.
that:
The plaintiff commenced this action against the defendant
Industrial Code provision requiring eye protection alleging common-law negligence and violations of Labor
equipment furnished basis for Labor Law liability, but Law §§ 200 and 241(6). The plaintiff alleged that he was
not provided with adequate eye protection while using the
genuine issues of material fact precluded summary nail gun. The plaintiff’s bill of particulars provided that the
judgment. cause of action alleging a violation of Labor Law § 241(6)
was predicated upon 12 NYCRR 23–1.5, 23–1.7, 23–
1.8(a), 23–1.21, and 23–1.30. The defendant moved for
Reversed. summary judgment dismissing the complaint and the
Supreme Court granted the motion in its entirety. The
Procedural Posture(s): On Appeal; Motion for Summary plaintiff appeals from so much of the order as granted that
Judgment. branch of the defendant’s motion which was for summary
judgment dismissing **243 the cause of action alleging a
Attorneys and Law Firms
violation of Labor Law § 241(6) insofar as it was
**242 Gorayeb & Associates, P.C., New York, N.Y. (Mark predicated upon 12 NYCRR 23–1.8(a).
H. Edwards of counsel), for appellant.
Contrary to the defendant’s contention, the Supreme Court
Congdon, Flaherty, O’Callaghan, Reid, Donlon, Travis & did not sua sponte direct the dismissal of the cause of action
Fishlinger, Uniondale, N.Y. (Michael T. Reagan of alleging a violation of Labor Law § 241(6). In both its
counsel), for respondent. notice of motion and in the supporting affirmation of its

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Montenegro v. P12, LLC, 130 A.D.3d 695 (2015)
13 N.Y.S.3d 241, 2015 N.Y. Slip Op. 05919

attorney, the defendant moved for summary judgment 567–568, 793 N.Y.S.2d 56; Fresco v. *697 157 E. 72nd St.
dismissing the cause of action alleging a violation of Labor Condominum, 2 A.D.3d 326, 328, 769 N.Y.S.2d 536;
Law § 241(6) in its entirety (cf. Shaw v. RPA Assoc., LLC, Cappiello v. Telehouse Intl. Corp. of Am., 193 A.D.2d 478,
75 A.D.3d 634, 635, 906 N.Y.S.2d 574; Edwards v. C & D 478–480, 597 N.Y.S.2d 393). Triable issues of fact exist as
Unlimited, 289 A.D.2d 370, 371, 735 N.Y.S.2d 141). The to whether the plaintiff’s use of a pneumatic nail gun at the
plaintiff opposed the motion and argued that there was a time of the accident made the possibility of injury to his
triable issue of fact. eye sufficiently foreseeable so as to require eye protection
(see Guryev v. Tomchinsky, 87 A.D.3d at 613, 928
The Supreme Court erred, however, in granting that N.Y.S.2d 574). Moreover, there is a triable issue of fact as
branch of the defendant’s motion which was for summary to whether approved eye protection was provided to the
judgment dismissing the cause of action alleging a plaintiff on the date of the accident. The defendant’s failure
violation of Labor Law § 241(6) insofar as it was to make a prima facie showing of entitlement to judgment
predicated upon 12 NYCRR 23–1.8(a). This Industrial as a matter of law required the denial of that branch of the
Code provision requires the furnishing of eye protection defendant’s motion, regardless of the sufficiency of the
equipment to employees who, inter alia, are “engaged in opposing papers (see Winegrad v. New York Univ. Med.
any ... operation which may endanger the eyes.” The Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d
defendant’s submissions failed to eliminate a triable issue 642).
of fact as to whether, at the time of the plaintiff’s accident,
the plaintiff was engaged in work that “may endanger the
eyes” so as to require the use of eye protection pursuant to All Citations
12 NYCRR 23–1.8(a) (see Guryev v. Tomchinsky, 87
A.D.3d 612, 613, 928 N.Y.S.2d 574, affd. 20 N.Y.3d 194, 130 A.D.3d 695, 13 N.Y.S.3d 241, 2015 N.Y. Slip Op.
957 N.Y.S.2d 677, 981 N.E.2d 273; Pedras v. Authentic 05919
Renaissance Modeling & Contr., Inc., 16 A.D.3d 567,
End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works.

19 of 118
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Sheley v. Kingsfort Builders, Inc., 207 A.D.3d 1155 (2022)
172 N.Y.S.3d 296, 2022 N.Y. Slip Op. 04464

SCHIFFRIK OF COUNSEL), FOR DEFENDANT-
207 A.D.3d 1155 APPELLANT.
Supreme Court, Appellate Division, Fourth
KENNY & KENNY, PLLC, SYRACUSE (MICHAEL P.
Department, New York.
KENNY OF COUNSEL), FOR PLAINTIFF-
RESPONDENT.
Nathan A. SHELEY, Plaintiff-
Respondent, PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN,
v. WINSLOW, AND BANNISTER, JJ.
KINGSFORT BUILDERS, INC.,
Defendant-Appellant.
384
|
CA 21-00927
|
Entered: July 8, 2022 MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is
Synopsis unanimously affirmed without costs.
Background: Worker filed suit against general contractor
to recover damages for injuries that he sustained while Memorandum: Plaintiff commenced this action to recover
using a nail gun to perform framing work on a residential damages for injuries that he sustained while using a nail
construction project, alleging that contractor failed to gun to perform framing work on a residential construction
provide him with adequate eye protection equipment. The project, alleging, as relevant here, that defendant, the
Supreme Court, Onondaga County, Joseph E. Lamendola, general contractor on the work site, violated Labor Law §
J., denied contractor’s motion for summary judgment in 241 (6) by failing to provide him with adequate eye
part. Contractor appealed. protection equipment as required by 12 NYCRR 23-1.8 (a).
Defendant moved for summary judgment dismissing the
complaint and now appeals from an order that, inter alia,
denied that part of its motion with respect to the Labor Law
The Supreme Court, Appellate Division, held that fact § 241 (6) cause of action. We affirm.
issues existed as to whether instruction to use safety glasses
that general contractor gave to worker on prior work site Defendant contends that it did not violate 12 NYCRR 23-
applied to site where worker was injured. 1.8 (a) and that Supreme Court thus erred in denying the
motion insofar as it sought summary judgment dismissing
the Labor Law § 241 (6) cause of action. Specifically,
Affirmed. defendant argues that, as a matter of law, it satisfied its duty
under 12 NYCRR 23-1.8 (a) and that plaintiff’s failure to
Procedural Posture(s): On Appeal; Motion for Summary wear available safety glasses constituted the sole proximate
Judgment. cause of the accident. As relevant on appeal, 12 NYCRR
23-1.8 (a) provides that “[a]pproved eye protection
**297 *1155 Appeal from an order of the Supreme Court,
equipment suitable for the hazard involved shall be
Onondaga County (Joseph E. Lamendola, J.), entered June
provided for and shall be used by all persons ... while
15, 2021. The order, insofar as appealed from, denied in
engaged in any ... operation which may endanger the eyes.”
part the motion of defendant for summary judgment.
We have previously held—and the parties do not **298
Attorneys and Law Firms dispute on appeal—that “use of [a] nail gun clearly falls
within” that sufficiently specific provision of the Industrial
GOLDBERG SEGALLA LLP, BUFFALO (AARON M. Code (Quiros v. Five Star Improvements, Inc., 134 A.D.3d
© 2023 Thomson Reuters. No claim to original U.S. Government Works. 1

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Sheley v. Kingsfort Builders, Inc., 207 A.D.3d 1155 (2022)
172 N.Y.S.3d 296, 2022 N.Y. Slip Op. 04464

1493, 1494, 22 N.Y.S.3d 736 [4th Dept. 2015]; see also safety glasses for plaintiff when he worked on the prior
Langer v. MTA Capital Constr. Co., 184 A.D.3d 401, 402, work site and instructing plaintiff at that earlier time to use
125 N.Y.S.3d 694 [1st Dept. 2020]; Willis v. Plaza Constr. the safety glasses. Although a lapse of time does not
Corp., 151 A.D.3d 568, 568, 54 N.Y.S.3d 281 [1st Dept. automatically relieve a worker of the duty to follow
2017]). specific instructions (see generally Radeljic v. Certified of
N.Y., Inc., 161 A.D.3d 588, 589, 77 N.Y.S.3d 397 [1st
We conclude that the court properly denied defendant’s Dept. 2018]; Baun v. Project Orange Assoc., L.P., 26
motion because defendant did not meet its initial burden of A.D.3d 831, 835, 809 N.Y.S.2d 703 [4th Dept. 2006]), we
establishing as a matter of law that it did not violate *1156 conclude that there is an issue of fact whether defendant’s
12 NYCRR 23-1.8 (a) (see generally Zuckerman v. City of instruction on the prior work site applied to the work site
New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 at which the accident occurred. For instance, although
N.E.2d 718 [1980]; Quiros, 134 A.D.3d at 1494-1495, 22 defendant’s principal testified that he directed workers to
N.Y.S.3d 736; Baker v. City of Buffalo, 90 A.D.3d 1684, wear safety equipment on all projects, he also stated that
1685-1686, 936 N.Y.S.2d 457 [4th Dept. 2011]). Although this was merely an “expectation”—i.e., that once he told
there is no dispute that safety glasses were present on the workers what to do, they would understand that they should
work site on the date of the accident, the deposition apply his directive to all future projects. Additionally, other
testimony submitted by defendant in support of its own deposition testimony submitted by defendant corroborated
motion raised questions of fact whether defendant plaintiff’s testimony that there was nothing in defendant’s
complied with its obligation under 12 NYCRR 23-1.8 (a) instructions on the prior work site “implying” that those
to ensure not only that “[a]pproved eye protection instructions—including the use of safety glasses—would
equipment ... be provided for” workers engaged in apply on future jobs.
operations that may endanger their eyes, but also that the
equipment actually “be used by all [such] persons” (12 Because defendant failed to meet its initial burden on the
NYCRR 23-1.8 [a] [emphasis added]; see generally Cahill *1157 motion, the burden

Case Info

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DEBRA SILBER Track Judge’s New Case

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Document Filed Date

January 03, 2023

Case Filing Date

December 20, 2019

County

Parties

91-93 FRANKLIN LLC Defendant
ALPINE READY MIX INC. Defendant
CARFORA, CHRISTOPHER Attorney for the Defendant
COSTIGAN, SEAN MICHAEL Attorney for the Defendant
DOLAN, GLENN PATRICK Attorney for the Plaintiff
Jose Gomez Plaintiff
LEVINE, JARED T Attorney for the Plaintiff
MARVIN, RACHAEL HANNA Attorney for the Defendant
MAZZUCHIN, ROBERT S. Attorney for the Defendant
MORGAN LEVINE DOLAN, P.C. Attorney for the Plaintiff
Y.N.H. CONSTRUCTION INC. Defendant
ZHU, MICHAEL H. Attorney for the Plaintiff
JEFFREY MIRAGLIOTTA Attorneys for Plaintiffs
MEHREEN HAYAT Attorneys for Defendants
PAUL WELLS Attorneys for Defendants
RACHEL MAIMIN Attorneys for Defendants
WILLIAM REGAN Attorney
DAVID DALE Attorney
KELECHI ACHOLONU Attorney
ROBERT STEINBAUM Attorney
ERIC LOPEZ Attorneys for Defendants
CHRISTOPHER MONE Attorney
SHANNON FILLMORE Attorney
JOSHUA PINKHASOV Attorneys for Defendants

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Motion,Ex Parte: Jose Gomez v. 91-93 Franklin Llc, Y.N.H. Construction Inc., Alpine Ready Mix Inc.

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