Preview
FILED: KINGS COUNTY CLERK 04/05/2023 03:42 PM INDEX NO. 515277/2018
NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 04/05/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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ANTONIO ESPINOSA, Index No.: 515277/2018
Plaintiff,
AFFIRMATION IN
-against- OPPOSITION TO
PLAINTIFF’S MOTION
FOR SUMMARY
MAC 60 LLC and ROYAL HOME IMPROVEMENTS, INC. JUDGMENT
Defendants.
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MAC 60 LLC and ROYAL HOME IMPROVEMENTS, INC.
Third-Party Plaintiff,
-against-
GILMAR DESIGN CORPORATION,
Third-Party Defendant.
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Richard B. Polner, an attorney duly admitted to practice law before the Courts of this
State, aware of the penalties of perjury, hereby affirms as follows pursuant to CPLR §2106:
1. I am a partner with the law office of Rawle & Henderson, LLP, attorneys for
Defendant/Third-Party Plaintiff, GILMAR DESIGN CORPORATION (hereinafter "GILMAR")
in the above-entitled action. I am fully familiar with the facts and circumstances of this action by
virtue of a review of the file maintained in this matter in the offices of Rawle & Henderson, LLP.
2. This Affirmation is respectfully submitted in opposition to Plaintiff’s motion
seeking judgment on liability pursuant to his causes of action under Labor Law §§240(1) and
241(6) and for such other, further and different relief as this Court may deem just, proper and
equitable..
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PRELIMINARY STATEMENT
3. Without submitting any evidence aside from his self serving testimony, Plaintiff
contends that the mere fact that he was purportedly subject to an incident wherein he was struck
by an object that fell from overhead unquestionably entitles him to a judgment on liability under
both Labor Law 240(1) and Labor Law 241(6). However, absent any admissible, supporting
evidence, Plaintiff’s motion must fail as questions of fact clearly exist as to whether judgment on
liability is appropriate.
4. Plaintiff relies solely on his own testimony that he saw an object falling “from
where the mason was working” in support of both Labor Law §§240(1) and 241(6). However,
there is no indication whatsoever that said object was in the process of being hoisted or required
securing for the purposes of the undertaking at the time it fell. Instead, Plaintiff insists the mere
fact that the object fell warrants judgment on liability. There was no evidence that any such or
similar instance occurred prior and there was no evidence that there were any complaints or
discussions of similar instances.
5. The relevant case law does not support Plaintiff’s contention as all of Plaintiff’s
legal authority is easily distinguishable from the facts of his claim. Instead, the relevant case law
requires a finding of questions of fact. As will be addressed within the following argument,
Plaintiff’s motion for summary judgment must be denied in its entirety.
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LEGAL ARGUMENT
Plaintiff Has Failed to Establish that the Falling Object Was Being Hoisted or Required
Securing for the Purposes of the Undertaking at the Time it Fell
6. Plaintiff correctly contends that in instances wherein it is alleged that a worker
was struck by a falling object a violation under Labor Law 240(1) is predicated on whether the
subject item was in the process of being hoisted or a load that required securing for undertaking.
Narducci v. Manhasset Bay Assocs., 96 N.Y.2d 259, 750 N.E.2d 1085, 727 N.Y.S.2d 37 (2001);
Banscher v Actus Lend Lease, LLC, 103 A.D.3d 823, 960 N.Y.S.3d 183 (2d Dept, 2013).
7. However, Plaintiff has proffered no evidence that the subject object was being
hoisted or otherwise was such that required securing for the undertaking at the time of it fell.
Instead, Plaintiff merely contended that he saw the object fall from the area wherein a worker
was situated.
8. Here, there has been no evidence that the subject object fell while being hoisted or
required securing, or that the subject object fell as a result of the absence of, or an inadequacy of,
a safety device that was otherwise enumerated under the statute. See Galvan v. Triborough
Bridge & Tunnel Auth., 29 A.D.3d 517, 814 N.Y.S.2d 256 (2d Dept, 2008). Moreover, the work
that was being performed at the time was no necessarily a situation where a hoisting or securing
device of the kind enumerated in the statute would have been necessary or even expected.
Roberts. General Elec. Co., 97 N.Y>2d 737, 768 N.E.2d 1127, 742 N.Y.S.2d 188 (2002).
9. Ultimately, it is Plaintiff’s obligation to demonstrate that at the time the object fell
it was being hoisted or secured, or required securing. Fabrizi v. 1095 Ave of the Ams., LLC, 22
N.Y.3d 658, 8 N.E.3d 791, 985 N.Y.S.2d 416 (2014). Plaintiff bears the aforementioned
responsibility as Labor Law §240(1) does not automatically apply just because Plaintiff claims
he was struck by a falling object. Id.
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10. Along these lines, the Second Department denied a plaintiff’s motion for
summary judgment under Labor Law 240(1) wherein the plaintiff was struck by a falling piece
of wood. Pazmino v. 41-50 78th St. Corp., 139 A.D.3d 1029, 32 N.Y.S.3d 301 (2d Dept, 2016).
In Pazmino, Plaintiff could neither establish that the subject object was a part of a safety device
and otherwise did not see from where the object fell to establish the incident was caused by the
absence or inadequacy of a safety device. Id. In the instant action, the only evidence cited by
Plaintiff is that he claimed to see the object falling from an area where another worker was
located. Without further specifics, Plaintiff cannot make a prima facie showing of his claimed
Labor Law §240(1) cause of action. Warranting a denial of Plaintiff’s motion.
11. In fact, the Second Department has affirmatively found that questions of fact
clearly exist in instances where a plaintiff cannot establish how an object fell or from where the
object fell prior to being struck by such object. Podobedov. V. East Coast Constr. Group, Inc.,
133 A.D.3d 733, 21 N.Y.S.3d 128 (2d Dept, 2015). In Podobedov, it was Plaintiff’s belief that
he was struck by a piece of concrete that fell from a wooden frame that was being lowered to
him on the ground below. Plaintiff’s own cited legal authority warrants a denial of his motion
for summary judgment. Plaintiff’s mere belief was found to be insufficient to establish, as a
matter of law, the incident arose as a result of the absence or inadequacy of a safety device. Id.
12. And contrary to the legal authority cited herein, all of Plaintiff’s supporting
authority is distinguishable from the instant herein as the facts of each claim indicate that the
falling object had been secured immediately prior to the alleged incident and was removed as a
result of ongoing demolition. Specifically, in Bornschein v. Shuman, 7 A.D.3d 476 (2d Dept,
2004) Plaintiff was struck by a falling beam that immediately prior to the incident a co-worker
demolished materials that was literally holding the subject beam in place.
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13. Similarly, in Tylutki v. Tishman Technologies, 7 A.D.3d 696 (2d Dept, 2004),
Plaintiff was struck by a pipe that was struck and dislodged from its secured position by a
coworker. In Zuluaga v. P.P.C. Const., LLC, 45 A.D.3d 479 (1st Dept, 2007), during a
demolition project, Plaintiff was struck by a falling pipe that had just been cut for removal. And
in Portillo v. Roby Anne Development, LLC, 32 A.D.3d 421 (2d Dept, 2006), the plaintiff was
struck by material being removed from a demolition project.
14. Even the authority Plaintiff claims is most akin to the subject incident, Hill v.
Aciews Group, LLC, 122 A.D.3d 428 (1st Dept, 2014), there was evidence in the cited authority
that the subject brick that struck the plaintiff was mishandled and dropped by a co-worker.
15. Here, there is no evidence in admissible form to establish from whence the falling
object claim, how it came to fall and whether there was any call for hoisting or securing
equipment under the statute. Based upon the aforementioned, Plaintiff’s motion for summary
judgment under Labor Law 240(1) must be denied with questions of fact to be determined at the
time of trial.
Plaintiff Has Failed to Establish that Entitlement to Judgment as a Matter of Law under
Labor Law 241(6)
16. Separate from his claim under the absolute liability statute of Labor Law §240(1),
Plaintiff claims he is entitled to judgment on liability, as a matter of law, under his Labor Law
241(6) cause of action for a purported violation of New York State Industrial Code 23-1.7(a)(1).
However, as with the Labor Law §240(1) cause of action, a question of fact exists as to whether
there was such a code violation.
17. The Second Department is clear that an area is not one “normally exposed" to
falling objects just because construction is being performed and an object falls as a
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result. See Marin v. AP-Amsterdam 1661 Park LLC, 60 AD3d 824, 826, 875 N.Y.S.2d 242 (2d
Dep't 2009).
18. In Marin, two metal brackets had previously fallen at the subject project prior to
Plaintiff’s incident and this evidence of prior falling objects was found insufficient to support a
Labor Law 241(1) cause of action under Industrial Code 23-1.7(a)(1).
19. Similarly, in Mercado v. TPT Brooklyn Assoc., LLC, 38 A.D.3d 732, 733, 832
N.Y.S.2d 93, 94 (2d Dep't 2007) the plaintiff was performing interior demolition work and
sustained injuries when a piece of ceiling collapsed and struck him. The Second Department held
that Industrial Code 23-1.7(a)(1) was inapplicable because the area where the plaintiff was
working was not one where workers were normally exposed to falling objects.'" Id. Here,
plaintiff failed to meet his burden as he did not provide any evidence or testimony that the area
where he was injured was “normally exposed” to falling objects. There has been no admissible
evidence of even one other instance of a falling object in the subject area.
20. In fact, Plaintiff’s cited authority supports the opposition that there is a question of fact as
to whether Plaintiff has a credible Labor Law 241(6) cause of action premised under Industrial Code §23-
1.7(a)(1). In Portillo v. Roby Anne Dev., 32 A.D.3d 421, 819 N.Y.S.2d 566 (2d Dept, 2007) wherein
Plaintiff was struck by a falling pipe during demolition. The Second Department determined Plaintiff
failed to establish evidence that the area wherein the incident occurred was one that was “normally
exposed” to falling objects as there was no evidence of any other instances of falling objects other than
Plaintiff’s claim. See also, Crichigno v Pacific Park 550 Vanderbilt, LLC, 186 A.D.3d 664, 127
N.Y.S.3d 309 (2d Dept, 2020)
21. Similarly, in Amato v. State, 241 A.D.2d 400, 660 N.Y.S.2d 576 (1st Dept, 1997)
Plaintiff, a demolition worker, was injured when he was struck by a falling metal brace during a
demolishing project. As overhead work was not a primary focus of the project and there was
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otherwise no evidence that the subject area was one normally exposed to falling objects, the
Plaintiff’s Labor Law 241(6) claim was dismissed.
22. As recently as this past month, the Second Department determined that a Plaintiff who
was struck by a piece of falling wood failed to establish that the location wherein the incident occurred
was one that was normally exposed to falling objects in support of his Labor Law 241(6) claim. Reyes v.
Sligo Constr. Corp., 2023 N.Y. App. Div. LEXIS 1679 (2d Dept, March 29, 2023).
23. The Second Department is clear, absent evidence that the subject incident location
was one that was normally exposed to falling objects, a violation under Industrial Code §23-
1.7(a)(1) will not be established and otherwise dismissed. Here, GILMAR contends that, at a
minimum questions of fact exist as to whether Plaintiff has a viable Labor Law 241(6) claim
premised on the aforementioned Industrial Code section cited.
CONCLUSION
24. The only purported admissible evidence is Plaintiff’s claim that he saw the object
fall from an area wherein someone was working with no specific information as to from where it
fell, how it came to fall and whether the object was one that was amenable to securing at the time
it fell, questions of fact exist with respect to liability.
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WHEREFORE, GILMAR respectfully requests that the Court issue an order denying
Plaintiff’s motion for summary judgment as to liability on his causes of action under Labor Law
§§240(1) and 241(6) and for such other further relief as this Court deems just and proper.
Dated: New York, New York
April 5, 2023
_________________________
Richard B. Polner
To All Parties: Via NYSCEF
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Word Count Certification
Richard B. Polner, an attorney duly admitted to practice law in the Courts of the State of
New York, certifies the following:
The foregoing Affirmation in Opposition was prepared in a word processing program on
a computer. The word count is: 2109 exclusive of the caption and signature block.
Dated: New York, New York
April 5, 2023
____________________________________
Richard B. Polner
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Preview
FILED: KINGS COUNTY CLERK 04/05/2023 03:42 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 04/05/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -------------------------------------------------------------------------X ANTONIO ESPINOSA, Index No.: 515277/2018 Plaintiff, AFFIRMATION IN -against- OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY MAC 60 LLC and ROYAL HOME IMPROVEMENTS, INC. JUDGMENT Defendants. --------------------------------------------------------------------------X MAC 60 LLC and ROYAL HOME IMPROVEMENTS, INC. Third-Party Plaintiff, -against- GILMAR DESIGN CORPORATION, Third-Party Defendant. ---------------------------------------------------------------------------X Richard B. Polner, an attorney duly admitted to practice law before the Courts of this State, aware of the penalties of perjury, hereby affirms as follows pursuant to CPLR §2106: 1. I am a partner with the law office of Rawle & Henderson, LLP, attorneys for Defendant/Third-Party Plaintiff, GILMAR DESIGN CORPORATION (hereinafter "GILMAR") in the above-entitled action. I am fully familiar with the facts and circumstances of this action by virtue of a review of the file maintained in this matter in the offices of Rawle & Henderson, LLP. 2. This Affirmation is respectfully submitted in opposition to Plaintiff’s motion seeking judgment on liability pursuant to his causes of action under Labor Law §§240(1) and 241(6) and for such other, further and different relief as this Court may deem just, proper and equitable.. 1 16876663-1 1 of 10 FILED: KINGS COUNTY CLERK 04/05/2023 03:42 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 04/05/2023 PRELIMINARY STATEMENT 3. Without submitting any evidence aside from his self serving testimony, Plaintiff contends that the mere fact that he was purportedly subject to an incident wherein he was struck by an object that fell from overhead unquestionably entitles him to a judgment on liability under both Labor Law 240(1) and Labor Law 241(6). However, absent any admissible, supporting evidence, Plaintiff’s motion must fail as questions of fact clearly exist as to whether judgment on liability is appropriate. 4. Plaintiff relies solely on his own testimony that he saw an object falling “from where the mason was working” in support of both Labor Law §§240(1) and 241(6). However, there is no indication whatsoever that said object was in the process of being hoisted or required securing for the purposes of the undertaking at the time it fell. Instead, Plaintiff insists the mere fact that the object fell warrants judgment on liability. There was no evidence that any such or similar instance occurred prior and there was no evidence that there were any complaints or discussions of similar instances. 5. The relevant case law does not support Plaintiff’s contention as all of Plaintiff’s legal authority is easily distinguishable from the facts of his claim. Instead, the relevant case law requires a finding of questions of fact. As will be addressed within the following argument, Plaintiff’s motion for summary judgment must be denied in its entirety. 2 16876663-1 2 of 10 FILED: KINGS COUNTY CLERK 04/05/2023 03:42 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 04/05/2023 LEGAL ARGUMENT Plaintiff Has Failed to Establish that the Falling Object Was Being Hoisted or Required Securing for the Purposes of the Undertaking at the Time it Fell 6. Plaintiff correctly contends that in instances wherein it is alleged that a worker was struck by a falling object a violation under Labor Law 240(1) is predicated on whether the subject item was in the process of being hoisted or a load that required securing for undertaking. Narducci v. Manhasset Bay Assocs., 96 N.Y.2d 259, 750 N.E.2d 1085, 727 N.Y.S.2d 37 (2001); Banscher v Actus Lend Lease, LLC, 103 A.D.3d 823, 960 N.Y.S.3d 183 (2d Dept, 2013). 7. However, Plaintiff has proffered no evidence that the subject object was being hoisted or otherwise was such that required securing for the undertaking at the time of it fell. Instead, Plaintiff merely contended that he saw the object fall from the area wherein a worker was situated. 8. Here, there has been no evidence that the subject object fell while being hoisted or required securing, or that the subject object fell as a result of the absence of, or an inadequacy of, a safety device that was otherwise enumerated under the statute. See Galvan v. Triborough Bridge & Tunnel Auth., 29 A.D.3d 517, 814 N.Y.S.2d 256 (2d Dept, 2008). Moreover, the work that was being performed at the time was no necessarily a situation where a hoisting or securing device of the kind enumerated in the statute would have been necessary or even expected. Roberts. General Elec. Co., 97 N.Y>2d 737, 768 N.E.2d 1127, 742 N.Y.S.2d 188 (2002). 9. Ultimately, it is Plaintiff’s obligation to demonstrate that at the time the object fell it was being hoisted or secured, or required securing. Fabrizi v. 1095 Ave of the Ams., LLC, 22 N.Y.3d 658, 8 N.E.3d 791, 985 N.Y.S.2d 416 (2014). Plaintiff bears the aforementioned responsibility as Labor Law §240(1) does not automatically apply just because Plaintiff claims he was struck by a falling object. Id. 3 16876663-1 3 of 10 FILED: KINGS COUNTY CLERK 04/05/2023 03:42 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 04/05/2023 10. Along these lines, the Second Department denied a plaintiff’s motion for summary judgment under Labor Law 240(1) wherein the plaintiff was struck by a falling piece of wood. Pazmino v. 41-50 78th St. Corp., 139 A.D.3d 1029, 32 N.Y.S.3d 301 (2d Dept, 2016). In Pazmino, Plaintiff could neither establish that the subject object was a part of a safety device and otherwise did not see from where the object fell to establish the incident was caused by the absence or inadequacy of a safety device. Id. In the instant action, the only evidence cited by Plaintiff is that he claimed to see the object falling from an area where another worker was located. Without further specifics, Plaintiff cannot make a prima facie showing of his claimed Labor Law §240(1) cause of action. Warranting a denial of Plaintiff’s motion. 11. In fact, the Second Department has affirmatively found that questions of fact clearly exist in instances where a plaintiff cannot establish how an object fell or from where the object fell prior to being struck by such object. Podobedov. V. East Coast Constr. Group, Inc., 133 A.D.3d 733, 21 N.Y.S.3d 128 (2d Dept, 2015). In Podobedov, it was Plaintiff’s belief that he was struck by a piece of concrete that fell from a wooden frame that was being lowered to him on the ground below. Plaintiff’s own cited legal authority warrants a denial of his motion for summary judgment. Plaintiff’s mere belief was found to be insufficient to establish, as a matter of law, the incident arose as a result of the absence or inadequacy of a safety device. Id. 12. And contrary to the legal authority cited herein, all of Plaintiff’s supporting authority is distinguishable from the instant herein as the facts of each claim indicate that the falling object had been secured immediately prior to the alleged incident and was removed as a result of ongoing demolition. Specifically, in Bornschein v. Shuman, 7 A.D.3d 476 (2d Dept, 2004) Plaintiff was struck by a falling beam that immediately prior to the incident a co-worker demolished materials that was literally holding the subject beam in place. 4 16876663-1 4 of 10 FILED: KINGS COUNTY CLERK 04/05/2023 03:42 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 04/05/2023 13. Similarly, in Tylutki v. Tishman Technologies, 7 A.D.3d 696 (2d Dept, 2004), Plaintiff was struck by a pipe that was struck and dislodged from its secured position by a coworker. In Zuluaga v. P.P.C. Const., LLC, 45 A.D.3d 479 (1st Dept, 2007), during a demolition project, Plaintiff was struck by a falling pipe that had just been cut for removal. And in Portillo v. Roby Anne Development, LLC, 32 A.D.3d 421 (2d Dept, 2006), the plaintiff was struck by material being removed from a demolition project. 14. Even the authority Plaintiff claims is most akin to the subject incident, Hill v. Aciews Group, LLC, 122 A.D.3d 428 (1st Dept, 2014), there was evidence in the cited authority that the subject brick that struck the plaintiff was mishandled and dropped by a co-worker. 15. Here, there is no evidence in admissible form to establish from whence the falling object claim, how it came to fall and whether there was any call for hoisting or securing equipment under the statute. Based upon the aforementioned, Plaintiff’s motion for summary judgment under Labor Law 240(1) must be denied with questions of fact to be determined at the time of trial. Plaintiff Has Failed to Establish that Entitlement to Judgment as a Matter of Law under Labor Law 241(6) 16. Separate from his claim under the absolute liability statute of Labor Law §240(1), Plaintiff claims he is entitled to judgment on liability, as a matter of law, under his Labor Law 241(6) cause of action for a purported violation of New York State Industrial Code 23-1.7(a)(1). However, as with the Labor Law §240(1) cause of action, a question of fact exists as to whether there was such a code violation. 17. The Second Department is clear that an area is not one “normally exposed" to falling objects just because construction is being performed and an object falls as a 5 16876663-1 5 of 10 FILED: KINGS COUNTY CLERK 04/05/2023 03:42 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 04/05/2023 result. See Marin v. AP-Amsterdam 1661 Park LLC, 60 AD3d 824, 826, 875 N.Y.S.2d 242 (2d Dep't 2009). 18. In Marin, two metal brackets had previously fallen at the subject project prior to Plaintiff’s incident and this evidence of prior falling objects was found insufficient to support a Labor Law 241(1) cause of action under Industrial Code 23-1.7(a)(1). 19. Similarly, in Mercado v. TPT Brooklyn Assoc., LLC, 38 A.D.3d 732, 733, 832 N.Y.S.2d 93, 94 (2d Dep't 2007) the plaintiff was performing interior demolition work and sustained injuries when a piece of ceiling collapsed and struck him. The Second Department held that Industrial Code 23-1.7(a)(1) was inapplicable because the area where the plaintiff was working was not one where workers were normally exposed to falling objects.'" Id. Here, plaintiff failed to meet his burden as he did not provide any evidence or testimony that the area where he was injured was “normally exposed” to falling objects. There has been no admissible evidence of even one other instance of a falling object in the subject area. 20. In fact, Plaintiff’s cited authority supports the opposition that there is a question of fact as to whether Plaintiff has a credible Labor Law 241(6) cause of action premised under Industrial Code §23- 1.7(a)(1). In Portillo v. Roby Anne Dev., 32 A.D.3d 421, 819 N.Y.S.2d 566 (2d Dept, 2007) wherein Plaintiff was struck by a falling pipe during demolition. The Second Department determined Plaintiff failed to establish evidence that the area wherein the incident occurred was one that was “normally exposed” to falling objects as there was no evidence of any other instances of falling objects other than Plaintiff’s claim. See also, Crichigno v Pacific Park 550 Vanderbilt, LLC, 186 A.D.3d 664, 127 N.Y.S.3d 309 (2d Dept, 2020) 21. Similarly, in Amato v. State, 241 A.D.2d 400, 660 N.Y.S.2d 576 (1st Dept, 1997) Plaintiff, a demolition worker, was injured when he was struck by a falling metal brace during a demolishing project. As overhead work was not a primary focus of the project and there was 6 16876663-1 6 of 10 FILED: KINGS COUNTY CLERK 04/05/2023 03:42 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 04/05/2023 otherwise no evidence that the subject area was one normally exposed to falling objects, the Plaintiff’s Labor Law 241(6) claim was dismissed. 22. As recently as this past month, the Second Department determined that a Plaintiff who was struck by a piece of falling wood failed to establish that the location wherein the incident occurred was one that was normally exposed to falling objects in support of his Labor Law 241(6) claim. Reyes v. Sligo Constr. Corp., 2023 N.Y. App. Div. LEXIS 1679 (2d Dept, March 29, 2023). 23. The Second Department is clear, absent evidence that the subject incident location was one that was normally exposed to falling objects, a violation under Industrial Code §23- 1.7(a)(1) will not be established and otherwise dismissed. Here, GILMAR contends that, at a minimum questions of fact exist as to whether Plaintiff has a viable Labor Law 241(6) claim premised on the aforementioned Industrial Code section cited. CONCLUSION 24. The only purported admissible evidence is Plaintiff’s claim that he saw the object fall from an area wherein someone was working with no specific information as to from where it fell, how it came to fall and whether the object was one that was amenable to securing at the time it fell, questions of fact exist with respect to liability. 7 16876663-1 7 of 10 FILED: KINGS COUNTY CLERK 04/05/2023 03:42 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 04/05/2023 WHEREFORE, GILMAR respectfully requests that the Court issue an order denying Plaintiff’s motion for summary judgment as to liability on his causes of action under Labor Law §§240(1) and 241(6) and for such other further relief as this Court deems just and proper. Dated: New York, New York April 5, 2023 _________________________ Richard B. Polner To All Parties: Via NYSCEF 8 16876663-1 8 of 10 FILED: KINGS COUNTY CLERK 04/05/2023 03:42 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 04/05/2023 9 16876663-1 9 of 10 FILED: KINGS COUNTY CLERK 04/05/2023 03:42 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 04/05/2023 Word Count Certification Richard B. Polner, an attorney duly admitted to practice law in the Courts of the State of New York, certifies the following: The foregoing Affirmation in Opposition was prepared in a word processing program on a computer. The word count is: 2109 exclusive of the caption and signature block. Dated: New York, New York April 5, 2023 ____________________________________ Richard B. Polner 10 16876663-1 10 of 10