Preview
FILED: KINGS COUNTY CLERK 12/27/2022 03:41 PM INDEX NO. 527680/2019
NYSCEF DOC. NO. 212 RECEIVED NYSCEF: 12/27/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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JOSE GOMEZ,
Plaintiff, Index No. 527680/2019
-against-
AFFIRMATION IN
91-93 FRANKLIN LLC, Y.N.H. CONSTRUCTION OPPOSITION
INC., and ALPINE READY MIX INC,
Defendants.
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91-93 FRANKLIN LLC, Y.N.H. CONSTRUCTION
INC.,
Third-Party Plaintiff,
-against-
CAPITAL CONCRETE NY INC.
Third-Party Defendant.
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ROBERT S. MAZZUCHIN, an attorney duly admitted to practice law before the Courts
of the State of New York, hereby affirms the following to be true under the penalties of perjury:
1. I am a member of the law firm of BRAND GLICK & BRAND, attorneys for
defendant ALPINE READY MIX INC., (hereinafter “ALPINE”) and as such I am fully familiar
with the facts and circumstances of this action based on a review of the file maintained by our
office.
2. This affirmation is submitted in opposition to the plaintiff’s motion for summary
judgment on the Labor Law §241(6) cause of action. As will be discussed more fully herein, the
evidence demonstrates that ALPINE is not a statutory defendant and is not subject to liability under
the Labor Law. Additionally, on the merits, the evidence demonstrates that at the time of the
accident, the plaintiff was not engaged in an activity which required protective eyewear.
Therefore, the plaintiff’s motion should be denied.
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FILED: KINGS COUNTY CLERK 12/27/2022 03:41 PM INDEX NO. 527680/2019
NYSCEF DOC. NO. 212 RECEIVED NYSCEF: 12/27/2022
A. THE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT LABOR
LAW §241(6) CAUSE OF ACTION SHOULD BE DENIED AS THERE ARE
ISSUES OF FACT AS TO WHETHER THE PLANTIFF NEEDED SAFETY
GOGGLES
3. Initially it is noted that since ALPINE is not a statutory defendant, the motion for
summary judgment on the Labor Law §241(6) cause of action should be denied as against
ALPINE.
4. Additionally, the plaintiff’s entire motion for summary judgment on the Labor Law
§241(6) claim is premised on the plaintiff’s testimony that he was not provided with goggles. To
a certain extent, his own credibility is in doubt. However, the motion for summary judgment on
Labor Law §241(6) is premature as there is still discovery on this issue in the form of the deposition
of the plaintiff’s employer.
5. Here, a separate action was commenced against Capital Concrete. However, that
action was severed. As a result, depositions of the plaintiff’s employer remain outstanding and
the motion is premature.
6. On the merits, your affirmant respectfully adopts and incorporates by reference, the
affirmation of Christopher M. Carfora, Esq, dated December 21, 2022 submitted in opposition to
the plaintiff’s motion. That affirmation is premised on the Affidavit of Michael Cronin, P.E., who
opined that the plaintiff was not in engaged in an activity that required the use of protective
eyewear. See Exhibit “1”.
7. In the case at bar, the relevant testimony from the plaintiff demonstrates that at the
time of the accident, the plaintiff was employed by Capital Concrete and was assigned to take
photographs of the progress of his co-employees. See Exhibit “E” at pages 13, 15. 1 The
plaintiff’s job was to watch the other workers to make sure that they were doing the proper work
1. References to letter Exhibits “A” through “G” refer to exhibits attached to the affirmation of Robert S. Mazzuchin
dated August 30, 2022 submitted in support of ALPINE’s motion for summary judgment.
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NYSCEF DOC. NO. 212 RECEIVED NYSCEF: 12/27/2022
when pouring the concrete. See Exhibit “E” at page 42. Thus, the plaintiff was not working with
concrete at the time of the accident. The plaintiff chose to stand 5 feet from the area where concrete
was delivered while taking his pictures. See Exhibit “E” at page 83.
8. This evidence demonstrates that the plaintiff was not engaged in cement activities
at the time of the accident. He could have stood twenty feet back and photographed the area as he
had no responsibility to distribute the concrete. Under the circumstances, a question of fact exists
as to whether protective eyewear was required. See, Roque v. Brooklyn GC LLC, 2022 NY Slip
Op 30540 (S. Ct. Kings, 2022). Based on the foregoing, the plaintiff’s motion for summary
judgment on the Labor Law §241(6) cause of action should be denied.
WHEREFORE, it is respectfully requested that this Honorable Court issue an order
denying the plaintiff’s motion for partial summary judgment on the Labor Law §241(6) cause of
action, together with such other and further relief as to this Honorable Court may deem just and
proper.
Dated: East Meadow, NY
December 27, 2022
Robert S. Mazzuchin /s/
__________________________________
Robert S. Mazzuchin
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FILED: KINGS COUNTY CLERK 12/27/2022 03:41 PM INDEX NO. 527680/2019
NYSCEF DOC. NO. 212 RECEIVED NYSCEF: 12/27/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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JOSE GOMEZ,
Plaintiff,
-against- Index No. 527680/2019
91-93 FRANKLIN LLC, Y.N.H. CONSTRUCTION
INC., and ALPINE READY MIX INC, WORD
CERTIFICATION
Defendants.
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91-93 FRANKLIN LLC, Y.N.H. CONSTRUCTION
INC.,
Third-Party Plaintiff,
-against-
CAPITAL CONCRETE NY INC.
Third-Party Defendant.
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ROBERT S. MAZZUCHIN, an attorney duly admitted to practice law in the Courts of the
State of New York, hereby affirms the following, pursuant to the penalties of perjury:
1. I hereby certify pursuant to Rule 202.8-b (Rule 17) of the Uniform Rules for the
Supreme Court and County Court that the total number of words in the foregoing Affirmation,
inclusive of point headings and footnotes and exclusive of the caption, table of contents, table of
authorities, and signature block is 665. The document complies with the word-count limit.
2. I have relied on the word count of the word-processing system used to prepare the
document.
Dated: East Meadow, NY
December 27, 2022
Robert S. Mazzuchin /s/
__________________________________
Robert S. Mazzuchin
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Preview
FILED: KINGS COUNTY CLERK 12/27/2022 03:41 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 212 RECEIVED NYSCEF: 12/27/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---------------------------------------------------------------------X JOSE GOMEZ, Plaintiff, Index No. 527680/2019 -against- AFFIRMATION IN 91-93 FRANKLIN LLC, Y.N.H. CONSTRUCTION OPPOSITION INC., and ALPINE READY MIX INC, Defendants. ---------------------------------------------------------------------X 91-93 FRANKLIN LLC, Y.N.H. CONSTRUCTION INC., Third-Party Plaintiff, -against- CAPITAL CONCRETE NY INC. Third-Party Defendant. ---------------------------------------------------------------------X ROBERT S. MAZZUCHIN, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following to be true under the penalties of perjury: 1. I am a member of the law firm of BRAND GLICK & BRAND, attorneys for defendant ALPINE READY MIX INC., (hereinafter “ALPINE”) and as such I am fully familiar with the facts and circumstances of this action based on a review of the file maintained by our office. 2. This affirmation is submitted in opposition to the plaintiff’s motion for summary judgment on the Labor Law §241(6) cause of action. As will be discussed more fully herein, the evidence demonstrates that ALPINE is not a statutory defendant and is not subject to liability under the Labor Law. Additionally, on the merits, the evidence demonstrates that at the time of the accident, the plaintiff was not engaged in an activity which required protective eyewear. Therefore, the plaintiff’s motion should be denied. 1 of 4 FILED: KINGS COUNTY CLERK 12/27/2022 03:41 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 212 RECEIVED NYSCEF: 12/27/2022 A. THE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT LABOR LAW §241(6) CAUSE OF ACTION SHOULD BE DENIED AS THERE ARE ISSUES OF FACT AS TO WHETHER THE PLANTIFF NEEDED SAFETY GOGGLES 3. Initially it is noted that since ALPINE is not a statutory defendant, the motion for summary judgment on the Labor Law §241(6) cause of action should be denied as against ALPINE. 4. Additionally, the plaintiff’s entire motion for summary judgment on the Labor Law §241(6) claim is premised on the plaintiff’s testimony that he was not provided with goggles. To a certain extent, his own credibility is in doubt. However, the motion for summary judgment on Labor Law §241(6) is premature as there is still discovery on this issue in the form of the deposition of the plaintiff’s employer. 5. Here, a separate action was commenced against Capital Concrete. However, that action was severed. As a result, depositions of the plaintiff’s employer remain outstanding and the motion is premature. 6. On the merits, your affirmant respectfully adopts and incorporates by reference, the affirmation of Christopher M. Carfora, Esq, dated December 21, 2022 submitted in opposition to the plaintiff’s motion. That affirmation is premised on the Affidavit of Michael Cronin, P.E., who opined that the plaintiff was not in engaged in an activity that required the use of protective eyewear. See Exhibit “1”. 7. In the case at bar, the relevant testimony from the plaintiff demonstrates that at the time of the accident, the plaintiff was employed by Capital Concrete and was assigned to take photographs of the progress of his co-employees. See Exhibit “E” at pages 13, 15. 1 The plaintiff’s job was to watch the other workers to make sure that they were doing the proper work 1. References to letter Exhibits “A” through “G” refer to exhibits attached to the affirmation of Robert S. Mazzuchin dated August 30, 2022 submitted in support of ALPINE’s motion for summary judgment. 2 of 4 FILED: KINGS COUNTY CLERK 12/27/2022 03:41 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 212 RECEIVED NYSCEF: 12/27/2022 when pouring the concrete. See Exhibit “E” at page 42. Thus, the plaintiff was not working with concrete at the time of the accident. The plaintiff chose to stand 5 feet from the area where concrete was delivered while taking his pictures. See Exhibit “E” at page 83. 8. This evidence demonstrates that the plaintiff was not engaged in cement activities at the time of the accident. He could have stood twenty feet back and photographed the area as he had no responsibility to distribute the concrete. Under the circumstances, a question of fact exists as to whether protective eyewear was required. See, Roque v. Brooklyn GC LLC, 2022 NY Slip Op 30540 (S. Ct. Kings, 2022). Based on the foregoing, the plaintiff’s motion for summary judgment on the Labor Law §241(6) cause of action should be denied. WHEREFORE, it is respectfully requested that this Honorable Court issue an order denying the plaintiff’s motion for partial summary judgment on the Labor Law §241(6) cause of action, together with such other and further relief as to this Honorable Court may deem just and proper. Dated: East Meadow, NY December 27, 2022 Robert S. Mazzuchin /s/ __________________________________ Robert S. Mazzuchin 3 of 4 FILED: KINGS COUNTY CLERK 12/27/2022 03:41 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 212 RECEIVED NYSCEF: 12/27/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---------------------------------------------------------------------X JOSE GOMEZ, Plaintiff, -against- Index No. 527680/2019 91-93 FRANKLIN LLC, Y.N.H. CONSTRUCTION INC., and ALPINE READY MIX INC, WORD CERTIFICATION Defendants. ---------------------------------------------------------------------X 91-93 FRANKLIN LLC, Y.N.H. CONSTRUCTION INC., Third-Party Plaintiff, -against- CAPITAL CONCRETE NY INC. Third-Party Defendant. ---------------------------------------------------------------------X ROBERT S. MAZZUCHIN, an attorney duly admitted to practice law in the Courts of the State of New York, hereby affirms the following, pursuant to the penalties of perjury: 1. I hereby certify pursuant to Rule 202.8-b (Rule 17) of the Uniform Rules for the Supreme Court and County Court that the total number of words in the foregoing Affirmation, inclusive of point headings and footnotes and exclusive of the caption, table of contents, table of authorities, and signature block is 665. The document complies with the word-count limit. 2. I have relied on the word count of the word-processing system used to prepare the document. Dated: East Meadow, NY December 27, 2022 Robert S. Mazzuchin /s/ __________________________________ Robert S. Mazzuchin 4 of 4