Preview
FILED: KINGS COUNTY CLERK 04/26/2023 06:48 PM INDEX NO. 515277/2018
NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 04/26/2023
SUPREME COURT OF THE STATE OF NEW
YORK COUNTY OF KINGS
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ANTONIO ESPINOSA, Index No.: 515277/2018
Plaintiff, DEFENDANTS’ MAC 60 LLC and
ROYAL HOME IMPROVEMENTS,
INC. RESPONSE TO PLAINTIFF’S
- against - STATEMENT OF FACTS AND
COUNTER-STATEMENT OF
MATERIAL FACTS
MAC 60 LLC and ROYAL HOME (Motion Sequence #3)
IMPROVEMENTS, INC.,
Defendants.
---------------------------------------------------------------X
MAC 60 LLC and ROYAL HOME
IMPROVEMENTS, INC.
Third-Party Plaintiffs
-against-
GILMAR DESGIN CORPORATION,
Third-Party Defendant.
---------------------------------------------------------------X
PLEASE TAKE NOTICE, that defendants/third-party plaintiffs MAC 60 LLC and
ROYAL HOME IMPROVEMENTS, INC., by and through their attorneys, KIERNAN
TREBACH LLP, submit this Response to Plaintiff’s and Counter-Statement of Material Facts in
Opposition to plaintiff’s motion for summary judgment:
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MAC 60 LLC and ROYAL HOME IMPROVEMENTS, INC., note that a Response
to plaintiff’s Statement of Material Facts and Counter-Statement of Facts submission pursuant to
Uniform Rule §202.8-g is no longer required following the change to the rule as of July 1, 2022.
MAC 60 LLC and ROYAL HOME IMPROVEMENTS, INC., submit the following only to
aid the Court in clarifying the contested issues.
Moreover, Uniform Rule 202.1(b) provides that, for good cause shown, and in the
interests of justice, the Court may waive compliance with any of the rules in this Part, other than
sections 202.2 and 202.3. Additionally, CPLR 2001 grants the court discretion to correct or
disregard “mistakes, omissions, defects and irregularities.” 25th Street Multifamily v. 208-214 e.
25th St, 2022 WL 2194707 (Sup. Ct., New York County 2022) (“CPLR §2001 and Rule 202.1
[b] Uniform Rules for Trial Courts authorize the Court to correct the defect at issue for good
cause and/or the interests of justice”); Dowds v. City of New York, 2021 WL 6051417 (Sup. Ct.,
New York County 2021) (“CPLR 2001 and Part 202.1(b) of the Uniform Rules give the court
discretion to overlook procedural defects.”).
Initially, MAC 60 LLC and ROYAL HOME IMPROVEMENTS, INC., deny and
dispute each and every statement set forth in the plaintiff’s Statement of Facts and in plaintiff’s
motion for summary judgment. The statements of facts contained by plaintiff’s “undisputed facts”
raise triable issues as to both the credibility and accuracy that cannot be resolved as a matter of
law.
1. Admit.
2. Admit
3. Admit.
4. Admit.
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5. Denies in the form alleged, except admits that Gilmar performed masonry work on
the exterior walls and staircases at the construction project undertaken at 2357 60th Street,
Brooklyn, NY. The work was performed with concrete masonry units, clay brick and cement. See
Exhibit J of Plaintiff’s moving papers at Page 19, line 6 through Page 20, line 16.
6. Admits to the extent that Gilmar constructed its own scaffolding to perform its
work. However, there is no testimony as to the number of scaffolds that were built.
7. Admit.
8. Admit.
9. Admit.
10. Denies. Based upon the reference in Plaintiff’s Statement of Undisputed Facts,
Plaintiff appears to be relying on his own, self-serving testimony.
11. Denies. Based upon the reference in Plaintiff’s Statement of Undisputed Facts,
Plaintiff appears to be relying on his own, self-serving testimony. Masonry work was being
performed on either the second floor or third floor wall. See Exhibit J of Plaintiff’s moving papers
at Page 35, lines 6 through 11.
12. Denies knowledge or information sufficient to form a belief as to the truth of the
statement. Based upon the reference in Plaintiff’s Statement of Undisputed Facts, Plaintiff appears
to be relying on his own, self-serving testimony.
13. Denies, except admits that at the time of the accident, the windows were not
installed, and there were no temporary screens on the openings. Whether there was a space created
in the exterior wall for the window threshold or frames, and/or whether there were windows created
and completed to allow for temporary screens or protective coverings is in dispute.
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14. Denies. Based upon the reference in Plaintiff’s Statement of Undisputed Facts,
Plaintiff appears to be relying on his own, self-serving testimony.
15. Denies. Based upon the reference in Plaintiff’s Statement of Undisputed Facts,
Plaintiff appears to be relying on his own, self-serving testimony.
DEFENDANTS’ COUNTER-STATEMENT OF MATERIAL FACTS
1. MAC 60 was formed to develop a multi-story building on a vacant lot located at
2357 60th Street, Brooklyn ("premises"). Exhibit “K,” pp. 14- 15, 25.
2. MAC contracted with Royal to serve as construction manager for the subject
project. Exhibit “K,” pp. 16-17; Exhibit “P.” Royal was a "paper" general contractor which did
not perform any of the work itself, but managed the project; all of the work was subcontracted to
other companies. Exhibit “K,” pp. 11, 25.
3. Gilmar’s President testified that Royal contracted with Gilmar to perform masonry
work. Exhibit “M,” p. 39; Exhibit “Q.” The building's foundation was previously laid before
Gilmar began working. Exhibit “N,” p. 16.
4. Gilmar constructed the exterior of the building, and the staircases. Exhibit “N,” p.
19. During Phase I of the project, Gilmar installed CMU (concrete masonry units) blocks to create
the interior portions of the walls. Exhibit “N,” p. 18. Cement was used to construct the CMU
portion of the walls. Exhibit “N,” p. 24. Bricks were then used to create a brick façade to complete
the exterior portion of the walls.
5. Gilmar built its own scaffolding inside the walls, in the interior of the premises for
use by its masons. Exhibit “N,” pp. 26-27. One of the scaffolds - the materials scaffold – was
attached to a pulley system so that the materials could be brought up to the higher floors. Exhibit
“I,” p. 74. The pulley system consisted of a wheel suspended from above, with a rope. Exhibit
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“N,” 28. The pulley wheel and rope were located on the exterior of the building. Exhibit “I,” p.
79.
6. On the day of the accident, construction of the walls for the first and second floors
were completed, and were in the process of building the third floor wall. Exhibit “I,” p. 72.
Gilmar's employees erected the scaffolds on the interior concrete slab that would ultimately
become the third floor, and the masons would layer the blocks while standing on one of the
scaffolds intended for this purpose. Exhibit “I,” pp. 57, 72-73.
7. Plaintiff was employed by Gilmar as a helper for five (5) years. Exhibit “H,” p.
24; Exhibit “I,” pp. 38-39. His duties as helper consisted of mixing concrete in the concrete
mixer, and delivering cement to the masons. Exhibit “I,” pp. 47, 60.
8. On the date of the incident, Abrik instructed plaintiff to mix concrete and load
buckets with concrete for the masons. Plaintiff used the pulley system to lift the concrete up to the
masons. Exhibit “I,” pp. 81-82.
9. Both Gilmanov and Abrik testified that Gilmanov went to the premises every
morning, and both he and foreman Abrik directed and instructed Gilmar’s employees on how to
perform the work, and perform the work safely. Exhibit “M,” pp. 101-102; Exhibit “N,” pp. 17,
30, 102. Gilmar was responsible for the means, method and manner of the work, including
providing safety instruction each morning, and safety devices. Exhibit “N,” p. 103.
10. Gilmanov testified that he and Abrik had the authority to decide how the work was
performed, and could change the manner of the work at any time. Exhibit “M,” pp. 101-102.
Both Gilmanov and Abrik had the authority to stop the work. Exhibit “M,” p. 106; Exhibit “N,”
p. 33.
11. Gilmar provided its employees with safety equipment such as harnesses, lanyards
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and hardhats, and instructed its employees to use them as part of its safety instructions. Exhibit
“N,” pp. 31, 103.
12. A space for windows had just been created that day in the exterior wall, however
windows had not yet been installed. Gilmar’s President, Marat Gilmanov testified that he
personally always notifies Royal whenever a wall is finished, so that protective coverings can be
installed. Exhibit “M,” pp. 131-132. However, he had not yet requested that Royal install
protective coverings, and there is no evidence that his foreman or any of Gilmar’s employees made
such a request. Exhibit “M,” pp. 131-132. Thus, at the time of the accident, there were no
temporary screens or coverings placed on the windows because the walls had just been completed
and the window space had just been created, therefore, there had not yet been time to obtain and
install temporary screens or coverings, and there is no evidence that Royal had even been notified.
13. The accident was not witnessed. Gilmanov was not present, but testified that his
employees told him that they finished the wall where the scaffold was standing, and were removing
everything that was still on the scaffold in order to dismantle them it. Exhibit “M,” pp. 125-126.
Gilmar mason, Djalilov, began removing one of the blocks, however, there was another small piece
of broken CMU block behind it that Djalilov did not see, and accidentally knocked it off the
scaffold. The small piece of block fell onto a window sill, then ricocheted down to the lower floor,
and fell outside the newly created window space in that wall. Exhibit “M,” pp. 125-126. Plaintiff
was standing next to or against the wall, and the small piece of block fell onto his hardhat. Exhibit
“M,” pp. 125-126. However, Gilmanov testified that it was only an assumption that the piece of
CMU block fell onto the window sill and richocheted from the window sill, since no one witnessed
the incident. Exhibit “M,” pp. 157-158.
14. Neither MAC 60 LLC nor Royal Home directed or instructed plaintiff in how to
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perform his job duties or the work. Exhibit “H,” pp. 38-39, 40; Exhibit “L,” pp. 81-83.
15. MAC 60 LLC did not control the means, manner or method of the work. Plaintiff
did not take any instruction or direction from MAC 60. Exhibit “H,” p. 40.
16. Royal Home Improvements did not control the means, manner or method of
the work. Royal Home Improvements, as construction manager, was responsible for making
certain that vendors had the plans from the architect, engineers, and mechanical drawings to
perform their work. Exhibit “L,” pp. 81-83.
17. Plaintiff did not take any instruction from Royal Home Improvement. Gilmar was
responsible for and controlled the means, manner and method of its work and that of its employees.
Exhibit “M,” pp. 101-102, 106; Exhibit “N,” pp. 17, 30, 102-103. Gilmar was responsible for
the means, method and manner of the work, including providing safety instruction each morning,
and safety devices. Exhibit “N,” pp. 31, 103. Gilmanov testified that he and Abrik were the ones
who had the authority to decide how the work was performed, and could change the manner of the
work at any time. Exhibit “M,” pp. 101-102. Both Gilmanov and Abrik had the authority to stop
the work. Exhibit “M,” p. 106; Exhibit “N,” p. 33.
18. Gilmar provided its employees with safety equipment such as harnesses, lanyards
and hardhats, and instructed its employees to use them as part of its safety instructions. Exhibit
“N,” pp. 31, 103.
19. Gilmar provided all of the safety equipment and safety instructions for its
employees, including the plaintiff. Exhibit “N,” pp. 31, 103.
20. Plaintiff disposed of the hardhat he was wearing at the time of the accident and
failed to produce it to the defendants for inspection by the defendants or defendants’ liability
expert to opine or render an opinion as to the manner, direction, angle, speed, force of impact,
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and/or other factors that may impact on defendants’ defense of this matter. Exhibit “I,” pp. 42-
43; Exhibit “J,” pp. 198-199.
21. Plaintiff does not know how the accident occurred. Plaintiff gave multiple
confusing and conflicting statements regarding how the stage if the work, the location and
operation of the pulley system, scaffolds, size and location of alleged piece of CMU block
claimed to have hit him, location of the masons, position in relation to the wall, the operation of
the pulley system, how the accident occurred, and where he was standing at the time of the
accident. Exhibit “I,” pp. 97– 127; Exhibit “J,” pp. 138-193.
22. Gilmanov testified that it was reported that plaintiff was standing too close to, or
against, the wall at the time of the accident. Exhibit “M,” pp. 154-159. Plaintiff had been
instructed earlier in the day by a mason Djialilov to move away from the wall, and not to stand
against the wall or get too close to the wall. Exhibit “M,” pp. 127-130. It was not necessary for
plaintiff to be close to the wall to operate the pulley, in fact, the pulley wheel and rope system
lifts the cement to the upper floors as one walks away from the wall, thus the further one moves
from the wall, the higher the pulley lifts materials.
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Dated: Garden City, New York
April 26, 2023
KIERNAN TREBACH LLP
By: _____________________________________
Afaf “Faye” Sulieman, Esq.
Attorneys for Defendants/Third Party Plaintiffs
MAC 60 LLC and ROYAL HOME
IMPROVEMENTS, INC.
1305 Franklin Avenue, Suite 301
Garden City, New York 11530
Tel: (516) 831-0200
KT File No.: 1989.0016
TO: Via NYSCEF E-Filing
John J. Nonnenmacher, Esq. Jnonnenmacher@OreskyLaw.com
Steven Labell, Esq. SLabell@oreskylaw.comm
ORESKY & ASSOCIATES, PLLC
Attorneys for Plaintiff
149 East 149th Street
Bronx, NY 10451
(718) 993-9999
File No.: 18-1005
Richard B. Polner, Esq. rpolner@rawle.com
RAWLE & HENDERSON LLP
Attorneys for Third-Party Defendant
GILMAR DESIGN CORPORATION
14 Wall Street, 27th Floor
New York, New York 10005-2101
File No.: 805030
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ATTORNEY CERTIFICATION
PURSUANT TO PART 202.8-b – LENGTH OF PAPERS
Pursuant to 22 NYCRR §202.8-b of the Uniform Rules for the Supreme Court, the
undersigned, an attorney admitted to practice in the Courts of New York State, certifies that upon
information and belief, and after reasonable inquiry, the foregoing RESPONSE TO
PLAINTIFF’S STATEMENT OF FACTS AND COUNTER-STATEMENT OF
MATERIAL FACTS contains 2,069 words, exclusive of caption, table of contents, table of
authorities and signature block and is within the 7,000 word limit. The word count was
determined in Microsoft word, in which the document was created.
Dated: April 26, 2023
Signature:
Print Signer’s Name: Afaf Sulieman
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Preview
FILED: KINGS COUNTY CLERK 04/26/2023 06:48 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 04/26/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---------------------------------------------------------------X ANTONIO ESPINOSA, Index No.: 515277/2018 Plaintiff, DEFENDANTS’ MAC 60 LLC and ROYAL HOME IMPROVEMENTS, INC. RESPONSE TO PLAINTIFF’S - against - STATEMENT OF FACTS AND COUNTER-STATEMENT OF MATERIAL FACTS MAC 60 LLC and ROYAL HOME (Motion Sequence #3) IMPROVEMENTS, INC., Defendants. ---------------------------------------------------------------X MAC 60 LLC and ROYAL HOME IMPROVEMENTS, INC. Third-Party Plaintiffs -against- GILMAR DESGIN CORPORATION, Third-Party Defendant. ---------------------------------------------------------------X PLEASE TAKE NOTICE, that defendants/third-party plaintiffs MAC 60 LLC and ROYAL HOME IMPROVEMENTS, INC., by and through their attorneys, KIERNAN TREBACH LLP, submit this Response to Plaintiff’s and Counter-Statement of Material Facts in Opposition to plaintiff’s motion for summary judgment: 1 1 of 10 FILED: KINGS COUNTY CLERK 04/26/2023 06:48 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 04/26/2023 MAC 60 LLC and ROYAL HOME IMPROVEMENTS, INC., note that a Response to plaintiff’s Statement of Material Facts and Counter-Statement of Facts submission pursuant to Uniform Rule §202.8-g is no longer required following the change to the rule as of July 1, 2022. MAC 60 LLC and ROYAL HOME IMPROVEMENTS, INC., submit the following only to aid the Court in clarifying the contested issues. Moreover, Uniform Rule 202.1(b) provides that, for good cause shown, and in the interests of justice, the Court may waive compliance with any of the rules in this Part, other than sections 202.2 and 202.3. Additionally, CPLR 2001 grants the court discretion to correct or disregard “mistakes, omissions, defects and irregularities.” 25th Street Multifamily v. 208-214 e. 25th St, 2022 WL 2194707 (Sup. Ct., New York County 2022) (“CPLR §2001 and Rule 202.1 [b] Uniform Rules for Trial Courts authorize the Court to correct the defect at issue for good cause and/or the interests of justice”); Dowds v. City of New York, 2021 WL 6051417 (Sup. Ct., New York County 2021) (“CPLR 2001 and Part 202.1(b) of the Uniform Rules give the court discretion to overlook procedural defects.”). Initially, MAC 60 LLC and ROYAL HOME IMPROVEMENTS, INC., deny and dispute each and every statement set forth in the plaintiff’s Statement of Facts and in plaintiff’s motion for summary judgment. The statements of facts contained by plaintiff’s “undisputed facts” raise triable issues as to both the credibility and accuracy that cannot be resolved as a matter of law. 1. Admit. 2. Admit 3. Admit. 4. Admit. 2 2 of 10 FILED: KINGS COUNTY CLERK 04/26/2023 06:48 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 04/26/2023 5. Denies in the form alleged, except admits that Gilmar performed masonry work on the exterior walls and staircases at the construction project undertaken at 2357 60th Street, Brooklyn, NY. The work was performed with concrete masonry units, clay brick and cement. See Exhibit J of Plaintiff’s moving papers at Page 19, line 6 through Page 20, line 16. 6. Admits to the extent that Gilmar constructed its own scaffolding to perform its work. However, there is no testimony as to the number of scaffolds that were built. 7. Admit. 8. Admit. 9. Admit. 10. Denies. Based upon the reference in Plaintiff’s Statement of Undisputed Facts, Plaintiff appears to be relying on his own, self-serving testimony. 11. Denies. Based upon the reference in Plaintiff’s Statement of Undisputed Facts, Plaintiff appears to be relying on his own, self-serving testimony. Masonry work was being performed on either the second floor or third floor wall. See Exhibit J of Plaintiff’s moving papers at Page 35, lines 6 through 11. 12. Denies knowledge or information sufficient to form a belief as to the truth of the statement. Based upon the reference in Plaintiff’s Statement of Undisputed Facts, Plaintiff appears to be relying on his own, self-serving testimony. 13. Denies, except admits that at the time of the accident, the windows were not installed, and there were no temporary screens on the openings. Whether there was a space created in the exterior wall for the window threshold or frames, and/or whether there were windows created and completed to allow for temporary screens or protective coverings is in dispute. 3 3 of 10 FILED: KINGS COUNTY CLERK 04/26/2023 06:48 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 04/26/2023 14. Denies. Based upon the reference in Plaintiff’s Statement of Undisputed Facts, Plaintiff appears to be relying on his own, self-serving testimony. 15. Denies. Based upon the reference in Plaintiff’s Statement of Undisputed Facts, Plaintiff appears to be relying on his own, self-serving testimony. DEFENDANTS’ COUNTER-STATEMENT OF MATERIAL FACTS 1. MAC 60 was formed to develop a multi-story building on a vacant lot located at 2357 60th Street, Brooklyn ("premises"). Exhibit “K,” pp. 14- 15, 25. 2. MAC contracted with Royal to serve as construction manager for the subject project. Exhibit “K,” pp. 16-17; Exhibit “P.” Royal was a "paper" general contractor which did not perform any of the work itself, but managed the project; all of the work was subcontracted to other companies. Exhibit “K,” pp. 11, 25. 3. Gilmar’s President testified that Royal contracted with Gilmar to perform masonry work. Exhibit “M,” p. 39; Exhibit “Q.” The building's foundation was previously laid before Gilmar began working. Exhibit “N,” p. 16. 4. Gilmar constructed the exterior of the building, and the staircases. Exhibit “N,” p. 19. During Phase I of the project, Gilmar installed CMU (concrete masonry units) blocks to create the interior portions of the walls. Exhibit “N,” p. 18. Cement was used to construct the CMU portion of the walls. Exhibit “N,” p. 24. Bricks were then used to create a brick façade to complete the exterior portion of the walls. 5. Gilmar built its own scaffolding inside the walls, in the interior of the premises for use by its masons. Exhibit “N,” pp. 26-27. One of the scaffolds - the materials scaffold – was attached to a pulley system so that the materials could be brought up to the higher floors. Exhibit “I,” p. 74. The pulley system consisted of a wheel suspended from above, with a rope. Exhibit 4 4 of 10 FILED: KINGS COUNTY CLERK 04/26/2023 06:48 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 04/26/2023 “N,” 28. The pulley wheel and rope were located on the exterior of the building. Exhibit “I,” p. 79. 6. On the day of the accident, construction of the walls for the first and second floors were completed, and were in the process of building the third floor wall. Exhibit “I,” p. 72. Gilmar's employees erected the scaffolds on the interior concrete slab that would ultimately become the third floor, and the masons would layer the blocks while standing on one of the scaffolds intended for this purpose. Exhibit “I,” pp. 57, 72-73. 7. Plaintiff was employed by Gilmar as a helper for five (5) years. Exhibit “H,” p. 24; Exhibit “I,” pp. 38-39. His duties as helper consisted of mixing concrete in the concrete mixer, and delivering cement to the masons. Exhibit “I,” pp. 47, 60. 8. On the date of the incident, Abrik instructed plaintiff to mix concrete and load buckets with concrete for the masons. Plaintiff used the pulley system to lift the concrete up to the masons. Exhibit “I,” pp. 81-82. 9. Both Gilmanov and Abrik testified that Gilmanov went to the premises every morning, and both he and foreman Abrik directed and instructed Gilmar’s employees on how to perform the work, and perform the work safely. Exhibit “M,” pp. 101-102; Exhibit “N,” pp. 17, 30, 102. Gilmar was responsible for the means, method and manner of the work, including providing safety instruction each morning, and safety devices. Exhibit “N,” p. 103. 10. Gilmanov testified that he and Abrik had the authority to decide how the work was performed, and could change the manner of the work at any time. Exhibit “M,” pp. 101-102. Both Gilmanov and Abrik had the authority to stop the work. Exhibit “M,” p. 106; Exhibit “N,” p. 33. 11. Gilmar provided its employees with safety equipment such as harnesses, lanyards 5 5 of 10 FILED: KINGS COUNTY CLERK 04/26/2023 06:48 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 04/26/2023 and hardhats, and instructed its employees to use them as part of its safety instructions. Exhibit “N,” pp. 31, 103. 12. A space for windows had just been created that day in the exterior wall, however windows had not yet been installed. Gilmar’s President, Marat Gilmanov testified that he personally always notifies Royal whenever a wall is finished, so that protective coverings can be installed. Exhibit “M,” pp. 131-132. However, he had not yet requested that Royal install protective coverings, and there is no evidence that his foreman or any of Gilmar’s employees made such a request. Exhibit “M,” pp. 131-132. Thus, at the time of the accident, there were no temporary screens or coverings placed on the windows because the walls had just been completed and the window space had just been created, therefore, there had not yet been time to obtain and install temporary screens or coverings, and there is no evidence that Royal had even been notified. 13. The accident was not witnessed. Gilmanov was not present, but testified that his employees told him that they finished the wall where the scaffold was standing, and were removing everything that was still on the scaffold in order to dismantle them it. Exhibit “M,” pp. 125-126. Gilmar mason, Djalilov, began removing one of the blocks, however, there was another small piece of broken CMU block behind it that Djalilov did not see, and accidentally knocked it off the scaffold. The small piece of block fell onto a window sill, then ricocheted down to the lower floor, and fell outside the newly created window space in that wall. Exhibit “M,” pp. 125-126. Plaintiff was standing next to or against the wall, and the small piece of block fell onto his hardhat. Exhibit “M,” pp. 125-126. However, Gilmanov testified that it was only an assumption that the piece of CMU block fell onto the window sill and richocheted from the window sill, since no one witnessed the incident. Exhibit “M,” pp. 157-158. 14. Neither MAC 60 LLC nor Royal Home directed or instructed plaintiff in how to 6 6 of 10 FILED: KINGS COUNTY CLERK 04/26/2023 06:48 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 04/26/2023 perform his job duties or the work. Exhibit “H,” pp. 38-39, 40; Exhibit “L,” pp. 81-83. 15. MAC 60 LLC did not control the means, manner or method of the work. Plaintiff did not take any instruction or direction from MAC 60. Exhibit “H,” p. 40. 16. Royal Home Improvements did not control the means, manner or method of the work. Royal Home Improvements, as construction manager, was responsible for making certain that vendors had the plans from the architect, engineers, and mechanical drawings to perform their work. Exhibit “L,” pp. 81-83. 17. Plaintiff did not take any instruction from Royal Home Improvement. Gilmar was responsible for and controlled the means, manner and method of its work and that of its employees. Exhibit “M,” pp. 101-102, 106; Exhibit “N,” pp. 17, 30, 102-103. Gilmar was responsible for the means, method and manner of the work, including providing safety instruction each morning, and safety devices. Exhibit “N,” pp. 31, 103. Gilmanov testified that he and Abrik were the ones who had the authority to decide how the work was performed, and could change the manner of the work at any time. Exhibit “M,” pp. 101-102. Both Gilmanov and Abrik had the authority to stop the work. Exhibit “M,” p. 106; Exhibit “N,” p. 33. 18. Gilmar provided its employees with safety equipment such as harnesses, lanyards and hardhats, and instructed its employees to use them as part of its safety instructions. Exhibit “N,” pp. 31, 103. 19. Gilmar provided all of the safety equipment and safety instructions for its employees, including the plaintiff. Exhibit “N,” pp. 31, 103. 20. Plaintiff disposed of the hardhat he was wearing at the time of the accident and failed to produce it to the defendants for inspection by the defendants or defendants’ liability expert to opine or render an opinion as to the manner, direction, angle, speed, force of impact, 7 7 of 10 FILED: KINGS COUNTY CLERK 04/26/2023 06:48 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 04/26/2023 and/or other factors that may impact on defendants’ defense of this matter. Exhibit “I,” pp. 42- 43; Exhibit “J,” pp. 198-199. 21. Plaintiff does not know how the accident occurred. Plaintiff gave multiple confusing and conflicting statements regarding how the stage if the work, the location and operation of the pulley system, scaffolds, size and location of alleged piece of CMU block claimed to have hit him, location of the masons, position in relation to the wall, the operation of the pulley system, how the accident occurred, and where he was standing at the time of the accident. Exhibit “I,” pp. 97– 127; Exhibit “J,” pp. 138-193. 22. Gilmanov testified that it was reported that plaintiff was standing too close to, or against, the wall at the time of the accident. Exhibit “M,” pp. 154-159. Plaintiff had been instructed earlier in the day by a mason Djialilov to move away from the wall, and not to stand against the wall or get too close to the wall. Exhibit “M,” pp. 127-130. It was not necessary for plaintiff to be close to the wall to operate the pulley, in fact, the pulley wheel and rope system lifts the cement to the upper floors as one walks away from the wall, thus the further one moves from the wall, the higher the pulley lifts materials. 8 8 of 10 FILED: KINGS COUNTY CLERK 04/26/2023 06:48 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 04/26/2023 Dated: Garden City, New York April 26, 2023 KIERNAN TREBACH LLP By: _____________________________________ Afaf “Faye” Sulieman, Esq. Attorneys for Defendants/Third Party Plaintiffs MAC 60 LLC and ROYAL HOME IMPROVEMENTS, INC. 1305 Franklin Avenue, Suite 301 Garden City, New York 11530 Tel: (516) 831-0200 KT File No.: 1989.0016 TO: Via NYSCEF E-Filing John J. Nonnenmacher, Esq. Jnonnenmacher@OreskyLaw.com Steven Labell, Esq. SLabell@oreskylaw.comm ORESKY & ASSOCIATES, PLLC Attorneys for Plaintiff 149 East 149th Street Bronx, NY 10451 (718) 993-9999 File No.: 18-1005 Richard B. Polner, Esq. rpolner@rawle.com RAWLE & HENDERSON LLP Attorneys for Third-Party Defendant GILMAR DESIGN CORPORATION 14 Wall Street, 27th Floor New York, New York 10005-2101 File No.: 805030 9 9 of 10 FILED: KINGS COUNTY CLERK 04/26/2023 06:48 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 04/26/2023 ATTORNEY CERTIFICATION PURSUANT TO PART 202.8-b – LENGTH OF PAPERS Pursuant to 22 NYCRR §202.8-b of the Uniform Rules for the Supreme Court, the undersigned, an attorney admitted to practice in the Courts of New York State, certifies that upon information and belief, and after reasonable inquiry, the foregoing RESPONSE TO PLAINTIFF’S STATEMENT OF FACTS AND COUNTER-STATEMENT OF MATERIAL FACTS contains 2,069 words, exclusive of caption, table of contents, table of authorities and signature block and is within the 7,000 word limit. The word count was determined in Microsoft word, in which the document was created. Dated: April 26, 2023 Signature: Print Signer’s Name: Afaf Sulieman 10 10 of 10