Preview
FILED: KINGS COUNTY CLERK 05/09/2023 11:42 PM INDEX NO. 515277/2018
NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 05/09/2023
SUPREME COURT OF THE STATE OF NEW
YORK COUNTY OF KINGS
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ANTONIO ESPINOSA, Index No.: 515277/2018
Motion Sequence #5
Return Date: June 7, 2023
Hon. Devin P. Cohen
Plaintiff, AFFIRMATION IN REPLY
& IN FURTHER SUPPORT OF
- against - DEFENDANTS’ MAC 60 LLC and
ROYAL HOME IMPROVEMENTS,
INC. CROSS-MOTION
MAC 60 LLC and ROYAL HOME
IMPROVEMENTS, INC.,
Defendants.
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MAC 60 LLC and ROYAL HOME
IMPROVEMENTS, INC.
Third-Party Plaintiffs
-against-
GILMAR DESGIN CORPORATION,
Third-Party Defendant.
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AFAF SULIEMAN, ESQ., an attorney duly admitted to practice law before the Courts of
the State of New York, hereby affirms the truth of the following statements subject to the penalties
of perjury:
1. I am Of Counsel with the law firm of Kiernan Trebach LLP, attorneys for
defendants MAC 60 LLC and ROYAL HOME IMPROVEMENTS, INC. I am fully familiar with
the facts and circumstances of this matter based on review of a file maintained by my office.
2. This Affirmation is submitted in Reply to plaintiff’s opposition, and in Further
Support of defendants Cross-Motion for summary judgment seeking an Order:
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(1) denying plaintiff’s motion for partial summary judgment on his Labor Law §§240(1)
and 241(6) claims;
(2) granting defendants/third-party plaintiffs’ MAC 60 LLC and ROYAL HOME
IMPROVEMENTS, INC. Cross-Motion pursuant to CPLR §3212 for summary judgment
and dismissing plaintiff’s Complaint on his Labor Law §§200, 240(1) and 241(6) causes
of action, and all claims and cross-claims against MAC 60 LLC and ROYAL HOME
IMPROVEMENTS, INC. in their entirety;
(3) striking and dismissing plaintiff’s Complaint for spoliation of evidence based on its
destruction of evidence needed for this litigation, prejudicing the defendants, or
alternatively, issuing an adverse inference instruction at the time of trial, advising the jury
that plaintiff destroyed relevant evidence, prejudicing the defendants; and
(4) for such other, further and different relief as this Court deems just and proper.
ARGUMENT
POINT I.
PLAINTIFF FAILED TO ESTABLISH ENTITLEMENT TO JUDGMENT AS A
MATTER OF LAW UNDER LABOR LAW §240(1); DEFENDANTS ARE ENTITLED
TO SUMMARY JUDGMENT DISMISSAL OF PLAINTIFF’S §240(1) CLAIM
A. Defendants Are Entitled to Summary Judgment Dismissal Of Plaintiff’s §240(1)
Claim; Plaintiff Proffered No Evidence In Admissible Form As To How The
Alleged Unwitnessed Incident Occurred; Plaintiff Proffered Conflicting
Statements; Proffered No Evidence That The Subject Object Was Being Hoisted Or
Otherwise Was Such That Required Securing For The Undertaking At The Time
Of The Alleged Incident
3. An accident alone does not establish a Labor Law §240(1) violation or causation.
Robinson v East Med. Ctr., LP, 6 N.Y.3d 550, 553-555 (2006); Blake v. Neighborhood Hous.
Servs. of N.Y. City, 1 N.Y.3d 280, 287, 290 (2003). The Court of Appeals has repeatedly
recognized, “the language of §240(1) must not be strained to accomplish what the Legislature did
not intend” to avoid sweeping turnabout that the statute neither permits nor contemplates. Blake,
supra, 1 N.Y.3d at 286, 292 (2003); quoting Martinez v. City of New York, 93 N.Y.2d 322, 326
(1999).
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4. Plaintiff contends that in instances alleging that a worker was struck by a falling
object, a violation under §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 (2001); Banscher v Actus Lend Lease, LLC, 103 A.D.3d 823 (2nd Dept. 2013).
5. However, plaintiff proffered no evidence that the subject object was being hoisted
or otherwise was such that required securing for the undertaking at the time it fell. Instead, plaintiff
merely contended that he saw the object fall from the area wherein a coworker was situated.
6. It is well settled law that a witness is incompetent to testify to a specific matter
when the witness lacks personal knowledge of the matter. A witness may testify to a matter only
if the witness has personal knowledge of the matter, based on the exercise of one’s own senses.
Hallenbeck v Vogt, 9 A.D.2d 836 (3rd Dept. 1959).
7. Prevailing decisions of the Court of Appeals and the Appellate Divisions state a
fundamental proposition of the law of evidence, e.g. People v Regina, 19 N.Y.2d 65, 68-70 (1966)
[witness’s testimony that he saw perpetrators during a five second time period fire two shots
properly admitted]; Senecal v Drollette, 304 N.Y. 446, 448-449 [1952] [witness’s testimony as to
the make of the car that struck him should have been admitted as the witness said he “got a glance
at it just before it hit him”]; Matter of Rios v Selsky, 32 A.D.3d 632, 633 (3rd Dept. 2006) [hearing
officer properly denied request of respondent to call certain witnesses as the witnesses had no
personal knowledge of the incident]; Overseas Trust Bank v Poon, 181 A.D.2d 762, 763 (2nd Dept.
1992) [testimony of husband concerning wife’s overseas trips during a relevant time period
properly excluded as it was “clear” the husband lacked personal knowledge].
8. Plaintiff’s contentions that every witness testified that a piece of block fell through
an unprotected window opening, ricocheted and landed on plaintiff are erroneous and
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disingenuous. None of the witnesses have personal knowledge of how the alleged incident
occurred; none of the witnesses actually witnessed the alleged incident. The testimonies of
witnesses other than plaintiff were based on second-hand and third-hand information told to them
by others, who obtained their information from what plaintiff told them.
9. Gilmar foreman, Abrik Mukhamadiyev (“Abrik”) did not witness the
accident. Abrik testified that he personally did not see where plaintiff was standing at the
time of the accident, did not see a piece of brick kicked or fall off of the scaffold, and did not
witness any brick fall on plaintiff. Abrik’s statements were based only on what he was told
by the plaintiff– that “a brick fell on his head,” and that the piece of brick was accidentally
knocked off of a scaffolding. Exhibit “N,” p. 42; NYSCEF Document #149. Abrik was asked,
“Did Mr. Espinosa tell you how the accident happened, or did you learn how the accident
happened some other way,” and responded, “He told me.” Id.
10. Abrik testified that he did not see the alleged incident as it occurred, and did not
know of anyone else who witnessed or saw a brick fall on plaintiff. Exhibit “N,” p. 37; NYSCEF
Document #149. Abrik testified that, on the day of plaintiff’s accident, he “witnessed it after
the accident happened,” and answered “NO” when asked whether he witnessed the accident
as it occurred. Id. Moreover, he did not know of any other Gilmar employee witnessing the
accident. Id.
11. Abrik did not know whether plaintiff was wearing his hardhat at the time plaintiff
alleges a brick fell on him. Abrik personally witnessed nothing; all of his testimony was based on
second-hand information told to him by plaintiff.
12. Gilmar’s owner, Marat Gilmanov (“Gilmanov”), personally did not witness
the alleged incident, and was not even present at the premises when plaintiff’s alleged accident
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occurred. Gilmanov was asked, “How did you become aware of Mr. Espinosa’s accident,”
and responded, “Abrik the manager called me.” Exhibit “M,” p. 114; NYSCEF Document
#148. Gilmanov testified that it was only an assumption that a piece of CMU block fell onto
the window sill, richocheted and fell on plaintiff. Exhibit “M,” pp. 157-158. Gilmanov’s
testimony was based only on second-hand and third-hand information told to him by Abrik,
who in turn did not witness the accident, but based his testimony only on what plaintiff told
him. Id.
13. Royal Home Improvement’s witness, Joshua Markovics (“Markovics”), was
not present at the subject premises, did not witness the accident, or whether plaintiff was
wearing his hardhat. Markovics was asked, “And where you at the site at the time of the
accident,” and answered, “I was not.” Exhibit L, p. 56; NYSCEF Document #147. He further
testified that, “I think Gilmar called me. Marat called me…” Id. Markovics testified only to
what he was told, based on second-hand and third-hand knowledge told to him by Gilmanov,
which was in turn told to Gilmanov by Gilmar workers, in turn based on what plaintiff told
them.
14. Plaintiff assumed how the accident occurred. Plaintiff gave conflicting accounts
and inconsistent testimony as to where he was standing, what he was doing, what occurred at
the time of the alleged incident. There has been no evidence in admissible form regarding how
the accident occurred.
15. Similarly, there has been no evidence in admissible form 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 (2d Dept., 2008). Moreover, the
work that was being performed at the time was not necessarily a situation where a hoisting or
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securing device of the kind enumerated in the statute would have been necessary or even expected.
Roberts v. General Elec. Co., 97 N.Y.2d 737 (2002).
16. In similar cases, the Second Department has denied plaintiffs’ motions for summary
judgment under §240(1), wherein plaintiff was struck by a falling piece of wood. Pazmino v. 41-
50 78th St. Corp., 139 A.D.3d 1029 (2nd 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, nor was the incident witnessed by anyone else, to establish the incident was caused by
the absence or inadequacy of a safety device. Id. Here, the only evidence is plaintiff’s claim of
seeing an object falling from an area where a coworker was located. Without further specifics,
plaintiff cannot make a prima facie showing of his §240(1) cause of action, warranting a denial of
plaintiff’s motion. Moreover, since plaintiff cannot prove how the alleged incident occurred,
defendants are entitled to dismissal of plaintiff’s §240(1) claim.
17. The Second Department has affirmatively found that questions of fact clearly exist
in instances where plaintiffs 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
(2nd Dept, 2015). In Podobedov, plaintiff believed 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 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. Plaintiff’s own cited legal authority warrants a
denial of his motion for summary judgment, and granting of summary judgment dismissal to
defendants.
18. All of plaintiff’s supporting authority is distinguishable from the instant matter, as
the facts of each claim indicate that the falling object had been secured immediately prior to the
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alleged incident, and was removed as a result of ongoing demolition. Specifically, in Bornschein
v. Shuman, 7 A.D.3d 476 (2nd Dept. 2004) plaintiff was struck by a falling beam that, immediately
prior to the incident, a coworker demolished materials that were holding the beam in place.
19. In Tylutki v. Tishman Technologies, 7 A.D.3d 696 (2nd 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. In Portillo v. Roby Anne Development,
LLC, 32 A.D.3d 421 (2nd Dept. 2006), plaintiff was struck by material being removed from a
demolition.
20. 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 that the subject brick
that struck the plaintiff was mishandled and dropped by a coworker.
21. Ultimately, it is plaintiff’s burden 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, (2014). Plaintiff utterly fails to do so.
22. There is no evidence in admissible form to establish from whence the falling object
came, how it came to fall and whether there was any call for hoisting or securing equipment under
the statute. Plaintiff is unable to substantiate or prove his claim. Therefore, plaintiff’s motion for
summary judgment under §240(1) must be denied. Defendants are entitled to summary judgment
dismissal of plaintiff’s §240(1) claim.
B. Plaintiff Was The Sole Proximate Cause Of His Injury
23. Where plaintiff is solely to blame for the injury, it necessarily means that there has
been no §240(1) violation. Robinson, supra, 6 N.Y.3d 550, 553-55; Blake, supra, 1 N.Y.3d 280,
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287. The Pattern Jury Instructions reflect a like-minded interpretation. PJI3d 2:217 (2003). The
Court of Appeals has held that the defense of sole proximate cause is applicable where the violation
of §240(1) played no role in the alleged incident. Blake, supra, 1 N.Y.3d 280, 287; see Weininger
v. Hagedorn & Co., 91 N.Y.2d 958, 672 N.Y.S.2d 840 (1998). The proof reveals that plaintiff's
own negligence was the sole proximate cause of the accident. Robinson, supra, 6 N.Y.3d 550, 553-
555; Blake, supra, 1 N.Y.3d 280, 287; Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35
(2004).
24. The facts adduced demonstrate that plaintiff placed himself in a position he should
not have been in, too close to the wall or against the wall that was not necessary to perform his job
duties. This act was a violation of safety protocols of his employment.
25. The controlling question "is not whether plaintiff was 'recalcitrant,' but whether a
jury could have found that [the worker's] own conduct, rather than any violation of §240(1), was
the sole proximate cause of his accident." See, Cahill, supra, 4 N.Y.3d at 39-40 (noting that
in Blake, "[e]ven when a worker is not 'recalcitrant'...there can be no liability under §240(1)when
the worker's actions are the 'sole proximate cause." 1 N.Y.3d at 290.
26. Plaintiff’s own actions were the sole proximate cause of his accident. See e.g.,
Petermann v. Ampal Realty Corp., 288 A.D.2d 54 (1st Dept. 2001)(where the plaintiff, an engineer
for a building’s managing agent, was injured when he fell from a ladder while turning off a valve
so that plumbing work could begin at the premises. Plaintiff’s §240(1) claim was dismissed since
he was not engaged in work covered by the statute); Martinez v. City of New York, 93 N.Y.2d 322
(1999) (where a plaintiff who fell from a desk while checking for asbestos in a school was not
covered by §240(1).
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27. The indisputable evidence demonstrates that plaintiff failed to prove any violation
of §240(1). Plaintiff's conduct was the sole proximate cause of the accident, and is not entitled to
recover in the face of a record that shows no violation, and reveals that he was entirely responsible
for his own injuries.
28. Notably, contradictory evidence exists as to how the accident actually occurred,
plaintiff’s involvement, whether safety devices were in place at the time of the accident, whether
plaintiff overtly disregarded safety. Due to the conflicting information as it currently exists, these
issues cannot be determined as a matter of law.
29. Accordingly, for all of the foregoing reasons, plaintiff’s summary judgment motion
on his §240(1) must be denied. Defendants are entitled to summary judgment dismissal of
plaintiff’s §240(1) claim.
POINT II.
PLAINTIFF FAILED TO ESTABLISH ENTITLEMENT TO JUDGMENT AS A
MATTER OF LAW UNDER §241(6); DEFENDANTS ARE ENTITLED TO SUMMARY
JUDGMENT DISMISSAL OF PLAINTIFF’S §241(6) CLAIM
30. Plaintiff’s claim of entitlement to judgment on liability under his Labor Law
§241(6) cause of action for a purported violation of New York State Industrial Code 23-1.7(a)(1)
at minimum presents a question of fact as to whether there was such a code violation.
31. Even if a plaintiff was engaged in one of the activities enumerated by the statute,
he/she must still establish that the alleged violation applies to the facts of the case. See Ares v.
State, 80 N.Y.2d 959, (1992); Francis v. Aluminum Co. of America, 240 A.D.2d 985 (3rd Dept.
1997); Haghighi v. Bailer, 240 A.D.2d 368 (2nd Dept. 1997). The following factors are critical to
this analysis: 1) plaintiff’s job responsibilities; 2) the type of activity that caused the injuries; 3)
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the time of the accident; and 4) the place of the accident. If a plaintiff’s accident occurs just before
or after an activity enumerated in the statute, no §241(6) action will lie.
32. Plaintiff does not know how the accident occurred, where he was standing or
walking at the time of the accident. There is no evidence that plaintiff was performing his job
duties at the time of the alleged incident, though he may have operated the pulley system just
before the accident.
33. The Second Department is unequivocal that an area is not one “normally exposed"
to falling objects just because construction is being performed and an object falls as a result. See,
Marin v. AP-Amsterdam 1661 Park LLC, 60 AD3d 824, 826, 875 (2nd Dept. 2009).
34. 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
§241(6) cause of action under Industrial Code 23-1.7(a)(1).
35. Similarly, in Mercado v. TPT Brooklyn Assoc., LLC, 38 A.D.3d 732, 733, (2nd
Dept. 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.
36. Here, plaintiff failed to meet his burden. 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.
37. In fact, plaintiff’s cited authority supports the opposite -that there is a question of
fact as to whether plaintiff has a credible §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 (2nd Dept.2007) plaintiff was struck
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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 (2nd
Dept. 2020)
38. In Amato v. State, 241 A.D.2d 400 (1st Dept. 1997) plaintiff, a demolition worker,
was injured when he was struck by a falling metal brace during a demolition. As overhead work
was not a primary focus of the project and there was otherwise no evidence that the subject area
was one normally exposed to falling objects, plaintiff’s §241(6) claim was dismissed.
39. Recently, the Second Department determined that a plaintiff 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 §241(6). Reyes v. Sligo Constr. Corp., 2023 N.Y.
App. Div. LEXIS 1679 (2nd Dept. March 29, 2023).
40. 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) cannot be established and otherwise dismissed.
41. Accordingly, MAC 60 and ROYAL are entitled to summary judgment dismissal of
plaintiff’s §241(6) cause of action. At minimum, questions of fact exist as to whether plaintiff has
a viable §241(6) claim premised on Industrial Code§23- 1.7(a)(1).
POINT III.
DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT DISMISSAL OF
PLAINTIFF’S LABOR LAW §200 CLAIM
42. Plaintiff’s Opposition to the within Cross-Motion does not oppose defendants’
application for summary judgment dismissal of plaintiff’s §200 cause of action. Hence, plaintiff
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concedes that defendants are entitlement to summary judgment dismissal of plaintiff’s §200 cause
of action.
43. An implicit precondition to the duty to maintain a safe workplace is that the party
to be charged with that obligation "have the authority to control the activity bringing about the
injury to enable it to avoid or correct an unsafe condition." Ross v. Curtis-Palmer Hydro-Elec.
Co., 81 N.Y.2d 494, 505 (1993); Comes v. New York State Elec. & Gas Corp., 82 N.Y. 2d 876,
878 (1993). Lombardi v Stout, 80 N.Y.2d 290 (1991); Russin v Picciano & Son, 54 N.Y.2d 311
(1981). Where such a claim arises out of alleged dangers arising from a subcontractor's methods
or materials, recovery against the owner or general contractor cannot be had unless it is shown that
the party to be charged exercised some supervisory control over the injury-producing activity.
Rizzuto v. L.A. Wenger Contracting Company, 91 N.Y.2d 343, 352 (1998); Comes v. New York
State Electric & Gas Corporation, supra, at 876, 877; Lombardi v Stout, supra, at 295; Allen v
Cloutier Constr. Corp., 44 N.Y.2d 290 (1978); Kappel v Fisher Bros. 6th Ave. Corp., 39 N.Y.2d
1039 (1976)(rule is an outgrowth of the basic common-law principle that "an owner or general
contractor [sh]ould not be held responsible for the negligent acts of others over whom [the owner
or general contractor] had no direction or control).
44. Plaintiff fails to demonstrate that defendants either created or had notice of any
alleged dangerous condition that led to plaintiff's accident, or that defendants had specific authority
to dictate how the work was performed.
45. MAC 60 and Royal cannot be held liable under §200 as they did not exercise
supervision, direction or control over the alleged injury-producing activity. Gilmanov, Abrik and
plaintiff himself all testified that only Gilmanov and Abrik directed/instructed plaintiff on how to
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perform the work, and perform it safely. Gilmar provided equipment, means, method and manner
of the work, and safety instructions.
46. MAC 60 or Royal did not create any alleged defective condition, and lacked notice
of any alleged dangerous condition that caused or contributed to plaintiff’s accident. A space for
windows had just been created that day in the exterior wall. Gilmanov testified that he had not yet
requested that Royal install protective coverings, and there is no evidence that his foreman or any
Gilmar employee made such a request.
47. Accordingly, MAC 60 and Royal are entitled to summary judgment on plaintiff’s
§200 cause of action.
POINT IV.
MAC 60 AND ROYAL ARE ENTITLED TO SUMMARY JUDGMENT
DISMISSAL OF PLAINTIFF’S CLAIMS IN THEIR ENTIRETY FOR PLAINTIFF’S
SPOLIATION OF EVIDENCE
48. Spoliation sanctions are appropriate where a litigant, intentionally or negligently,
disposes of evidence involved in an accident, depriving an adversary of an opportunity to inspect
them." Utica Mut. Ins. Co. v. Berkoski Oil Co., 2009 NY Slip Op 371, ¶ 2, 58 A.D.3d 717, 718
(2nd Dept. 2009); Kirkland v. New York City Hous. Auth., 236 A.D.2d 170, 173 (1st Dept. 1997).
A spoliator of physical evidence is properly punished by the striking of its pleading:
even if the destruction occurred through negligence rather than
willfulness, and even if the evidence was destroyed before the
spoliator became a party, provided it was on notice that the
evidence might be needed for future litigation.
DiDomenico v. C & S Aeromatik Supplies, Inc., 682 N.Y.S.2d 452, 459, 252 A.D.2d 41, 53 (2nd
Dept. 1998); Squitieri v. City of New York, 669 N.Y.S.2d 589, 590, 248 A.D.2d 201, 202 (1st
Dept. 1998).
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49. Striking a pleading is not an unduly harsh penalty where, as here, evidence is not
preserved, as the failure to preserve such evidence irrevocably strips the aggrieved party of its
usefulness, while exposing that party to prejudice:
Nor do we find the dismissal of…action to be inappropriate
or too harsh…Commentary suggests that personal injury specialists,
defense as well as plaintiff, almost uniformly recognize the elevated priority
of preserving the evidence, so that drastic sanctions are not necessarily
unduly harsh sanctions when a critical item of evidence is not preserved.
Kirkland, supra, 236 A.D.2d at 173; see, Mudge, Rose, Guthrie, Alexander & Ferdon v. Penguin
Air Conditioning Corp., 221 A.D.2d 243 (1st Dept. 1995) ("Dismissal of the amended Complaint
warranted because of plaintiff’s negligent loss of a key piece of evidence which defendants never
had an opportunity to examine.").
50. Plaintiff was on notice of the need to preserve evidence relating to his accident.
Plaintiff’s Complaint alleges that he was injured on January 11, 2018. Plaintiff expeditiously
consulted with his attorneys, who quickly filed his Complaint on July 26, 2018. Exhibit “A,”
NYSCEF Document #1, 136. Presumably, plaintiff was advised to retain the hardhat he allegedly
was wearing at the time of the alleged incident.
51. Plaintiff testified that not everyone on the job wore hardhats/helmets, but he did.
Exhibit “H” p. 45, NYSCEF Document #143; Exhibit “J” p. 198,NYSCEF
Document#145.
52. Plaintiff further testified that the piece of block that allegedly fell on him,
knocked the hardhat off his head. Exhibit “J” p. 198, NYSCEF Document#145.
53. Plaintiff testified at his 11/24/2020 deposition that “he couldn’t keep
anything,” the hardhat was “kept by his friend, Lorenzo Cruz,” that he no longer had
possession of the hardhat allegedly worn on the date of the incident, did not know its
whereabouts or whether it still existed. Exhibit “J” pp. 198-199, NYSCEF Document#145.
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54. Thus, plaintiff admits to the spoliation of evidence. Plaintiff’s failure to preserve
the hardhat irrevocably strips defendants of evidence, and exposes defendants to prejudice.
55. Oddly, plaintiff’s claims are based on an alleged failure of the defendants to provide
adequate safety devices/equipment, yet plaintiff failed to preserve the hardhat safety protection,
but disingenuously argues that the hardhat is unimportant, irrelevant evidence.
56. Plaintiff’s spoliation deprives the defendants of an opportunity to inspect the
hardhat plaintiff claims was knocked off his head, or have a liability expert examine and opine as
to the manner, direction, angle, speed, force of impact, and/or other factors or the significance of
the hardhat that may impact on defendants’ defense of this matter. Plaintiff’s arguments to the
contrary should be disregarded, as neither plaintiff nor his attorneys are qualified experts to
determine the significance of examining the hardhat.
57. Due to plaintiff’s carelessness and ineptitude at preserving evidence related to his
alleged accident, defendants are bereft of evidence to which they are entitled to defend against
plaintiff’s claims and are precluded from significant evidence.
58. Plaintiff compromises the ability of defendants to fully develop their defenses.
Therefore, plaintiff’s Complaint should be stricken. DiDomenico, supra, 682 N.Y.S.2d at 459-60;
Squitieri, supra, 669 N.Y.S.2d at 590; Sonmez v. World On Columbus, 261 A.D.2d 199, (1st Dept.
1999).
59. Alternatively, should the Court determine not to dismiss plaintiff’s Complaint, then
the Court should issue an adverse inference instruction at the time of trial, advising the jury that
plaintiff destroyed relevant evidence, prejudicing the defendants.
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WHEREFORE, it is respectfully requested that this Honorable Court issue an Order:
(1) denying plaintiff’s motion for partial summary judgment on his Labor Law §§240(1)
and 241(6) claims;
(2) granting defendants/third-party plaintiffs’ MAC 60 LLC and ROYAL HOME
IMPROVEMENTS, INC. Cross-Motion pursuant to CPLR §3212 for summary judgment
and dismissing plaintiff’s Complaint on his Labor Law §§200, 240(1) and 241(6) causes
of action, and all claims and cross-claims against MAC 60 LLC and ROYAL HOME
IMPROVEMENTS, INC. in their entirety;
(3) striking and dismissing plaintiff’s Complaint for spoliation of evidence based on its
destruction of evidence needed for this litigation, prejudicing the defendants, or
alternatively, issuing an adverse inference instruction at the time of trial, advising the jury
that plaintiff destroyed relevant evidence, prejudicing the defendants; and
(4) for such further and different relief as this Court deems just and proper.
Dated: Garden City, New York
May 9, 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.com
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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
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 REPLY AFFIRMATION IN
FURTHER SUPPORT OF CROSS-MOTION contains 4,197 words, exclusive of the caption,
signature block, and this page, and is within the word limit. The word count was determined in
Microsoft word, in which the document was created.
Dated: May 9, 2023
Signature:
Print Signer’s Name: Afaf Sulieman
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Preview
FILED: KINGS COUNTY CLERK 05/09/2023 11:42 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 05/09/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---------------------------------------------------------------X ANTONIO ESPINOSA, Index No.: 515277/2018 Motion Sequence #5 Return Date: June 7, 2023 Hon. Devin P. Cohen Plaintiff, AFFIRMATION IN REPLY & IN FURTHER SUPPORT OF - against - DEFENDANTS’ MAC 60 LLC and ROYAL HOME IMPROVEMENTS, INC. CROSS-MOTION MAC 60 LLC and ROYAL HOME IMPROVEMENTS, INC., Defendants. ---------------------------------------------------------------X MAC 60 LLC and ROYAL HOME IMPROVEMENTS, INC. Third-Party Plaintiffs -against- GILMAR DESGIN CORPORATION, Third-Party Defendant. ---------------------------------------------------------------X AFAF SULIEMAN, ESQ., an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the truth of the following statements subject to the penalties of perjury: 1. I am Of Counsel with the law firm of Kiernan Trebach LLP, attorneys for defendants MAC 60 LLC and ROYAL HOME IMPROVEMENTS, INC. I am fully familiar with the facts and circumstances of this matter based on review of a file maintained by my office. 2. This Affirmation is submitted in Reply to plaintiff’s opposition, and in Further Support of defendants Cross-Motion for summary judgment seeking an Order: 1 of 18 FILED: KINGS COUNTY CLERK 05/09/2023 11:42 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 05/09/2023 (1) denying plaintiff’s motion for partial summary judgment on his Labor Law §§240(1) and 241(6) claims; (2) granting defendants/third-party plaintiffs’ MAC 60 LLC and ROYAL HOME IMPROVEMENTS, INC. Cross-Motion pursuant to CPLR §3212 for summary judgment and dismissing plaintiff’s Complaint on his Labor Law §§200, 240(1) and 241(6) causes of action, and all claims and cross-claims against MAC 60 LLC and ROYAL HOME IMPROVEMENTS, INC. in their entirety; (3) striking and dismissing plaintiff’s Complaint for spoliation of evidence based on its destruction of evidence needed for this litigation, prejudicing the defendants, or alternatively, issuing an adverse inference instruction at the time of trial, advising the jury that plaintiff destroyed relevant evidence, prejudicing the defendants; and (4) for such other, further and different relief as this Court deems just and proper. ARGUMENT POINT I. PLAINTIFF FAILED TO ESTABLISH ENTITLEMENT TO JUDGMENT AS A MATTER OF LAW UNDER LABOR LAW §240(1); DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT DISMISSAL OF PLAINTIFF’S §240(1) CLAIM A. Defendants Are Entitled to Summary Judgment Dismissal Of Plaintiff’s §240(1) Claim; Plaintiff Proffered No Evidence In Admissible Form As To How The Alleged Unwitnessed Incident Occurred; Plaintiff Proffered Conflicting Statements; Proffered No Evidence That The Subject Object Was Being Hoisted Or Otherwise Was Such That Required Securing For The Undertaking At The Time Of The Alleged Incident 3. An accident alone does not establish a Labor Law §240(1) violation or causation. Robinson v East Med. Ctr., LP, 6 N.Y.3d 550, 553-555 (2006); Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 287, 290 (2003). The Court of Appeals has repeatedly recognized, “the language of §240(1) must not be strained to accomplish what the Legislature did not intend” to avoid sweeping turnabout that the statute neither permits nor contemplates. Blake, supra, 1 N.Y.3d at 286, 292 (2003); quoting Martinez v. City of New York, 93 N.Y.2d 322, 326 (1999). 2 2 of 18 FILED: KINGS COUNTY CLERK 05/09/2023 11:42 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 05/09/2023 4. Plaintiff contends that in instances alleging that a worker was struck by a falling object, a violation under §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 (2001); Banscher v Actus Lend Lease, LLC, 103 A.D.3d 823 (2nd Dept. 2013). 5. However, plaintiff proffered no evidence that the subject object was being hoisted or otherwise was such that required securing for the undertaking at the time it fell. Instead, plaintiff merely contended that he saw the object fall from the area wherein a coworker was situated. 6. It is well settled law that a witness is incompetent to testify to a specific matter when the witness lacks personal knowledge of the matter. A witness may testify to a matter only if the witness has personal knowledge of the matter, based on the exercise of one’s own senses. Hallenbeck v Vogt, 9 A.D.2d 836 (3rd Dept. 1959). 7. Prevailing decisions of the Court of Appeals and the Appellate Divisions state a fundamental proposition of the law of evidence, e.g. People v Regina, 19 N.Y.2d 65, 68-70 (1966) [witness’s testimony that he saw perpetrators during a five second time period fire two shots properly admitted]; Senecal v Drollette, 304 N.Y. 446, 448-449 [1952] [witness’s testimony as to the make of the car that struck him should have been admitted as the witness said he “got a glance at it just before it hit him”]; Matter of Rios v Selsky, 32 A.D.3d 632, 633 (3rd Dept. 2006) [hearing officer properly denied request of respondent to call certain witnesses as the witnesses had no personal knowledge of the incident]; Overseas Trust Bank v Poon, 181 A.D.2d 762, 763 (2nd Dept. 1992) [testimony of husband concerning wife’s overseas trips during a relevant time period properly excluded as it was “clear” the husband lacked personal knowledge]. 8. Plaintiff’s contentions that every witness testified that a piece of block fell through an unprotected window opening, ricocheted and landed on plaintiff are erroneous and 3 3 of 18 FILED: KINGS COUNTY CLERK 05/09/2023 11:42 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 05/09/2023 disingenuous. None of the witnesses have personal knowledge of how the alleged incident occurred; none of the witnesses actually witnessed the alleged incident. The testimonies of witnesses other than plaintiff were based on second-hand and third-hand information told to them by others, who obtained their information from what plaintiff told them. 9. Gilmar foreman, Abrik Mukhamadiyev (“Abrik”) did not witness the accident. Abrik testified that he personally did not see where plaintiff was standing at the time of the accident, did not see a piece of brick kicked or fall off of the scaffold, and did not witness any brick fall on plaintiff. Abrik’s statements were based only on what he was told by the plaintiff– that “a brick fell on his head,” and that the piece of brick was accidentally knocked off of a scaffolding. Exhibit “N,” p. 42; NYSCEF Document #149. Abrik was asked, “Did Mr. Espinosa tell you how the accident happened, or did you learn how the accident happened some other way,” and responded, “He told me.” Id. 10. Abrik testified that he did not see the alleged incident as it occurred, and did not know of anyone else who witnessed or saw a brick fall on plaintiff. Exhibit “N,” p. 37; NYSCEF Document #149. Abrik testified that, on the day of plaintiff’s accident, he “witnessed it after the accident happened,” and answered “NO” when asked whether he witnessed the accident as it occurred. Id. Moreover, he did not know of any other Gilmar employee witnessing the accident. Id. 11. Abrik did not know whether plaintiff was wearing his hardhat at the time plaintiff alleges a brick fell on him. Abrik personally witnessed nothing; all of his testimony was based on second-hand information told to him by plaintiff. 12. Gilmar’s owner, Marat Gilmanov (“Gilmanov”), personally did not witness the alleged incident, and was not even present at the premises when plaintiff’s alleged accident 4 4 of 18 FILED: KINGS COUNTY CLERK 05/09/2023 11:42 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 05/09/2023 occurred. Gilmanov was asked, “How did you become aware of Mr. Espinosa’s accident,” and responded, “Abrik the manager called me.” Exhibit “M,” p. 114; NYSCEF Document #148. Gilmanov testified that it was only an assumption that a piece of CMU block fell onto the window sill, richocheted and fell on plaintiff. Exhibit “M,” pp. 157-158. Gilmanov’s testimony was based only on second-hand and third-hand information told to him by Abrik, who in turn did not witness the accident, but based his testimony only on what plaintiff told him. Id. 13. Royal Home Improvement’s witness, Joshua Markovics (“Markovics”), was not present at the subject premises, did not witness the accident, or whether plaintiff was wearing his hardhat. Markovics was asked, “And where you at the site at the time of the accident,” and answered, “I was not.” Exhibit L, p. 56; NYSCEF Document #147. He further testified that, “I think Gilmar called me. Marat called me…” Id. Markovics testified only to what he was told, based on second-hand and third-hand knowledge told to him by Gilmanov, which was in turn told to Gilmanov by Gilmar workers, in turn based on what plaintiff told them. 14. Plaintiff assumed how the accident occurred. Plaintiff gave conflicting accounts and inconsistent testimony as to where he was standing, what he was doing, what occurred at the time of the alleged incident. There has been no evidence in admissible form regarding how the accident occurred. 15. Similarly, there has been no evidence in admissible form 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 (2d Dept., 2008). Moreover, the work that was being performed at the time was not necessarily a situation where a hoisting or 5 5 of 18 FILED: KINGS COUNTY CLERK 05/09/2023 11:42 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 05/09/2023 securing device of the kind enumerated in the statute would have been necessary or even expected. Roberts v. General Elec. Co., 97 N.Y.2d 737 (2002). 16. In similar cases, the Second Department has denied plaintiffs’ motions for summary judgment under §240(1), wherein plaintiff was struck by a falling piece of wood. Pazmino v. 41- 50 78th St. Corp., 139 A.D.3d 1029 (2nd 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, nor was the incident witnessed by anyone else, to establish the incident was caused by the absence or inadequacy of a safety device. Id. Here, the only evidence is plaintiff’s claim of seeing an object falling from an area where a coworker was located. Without further specifics, plaintiff cannot make a prima facie showing of his §240(1) cause of action, warranting a denial of plaintiff’s motion. Moreover, since plaintiff cannot prove how the alleged incident occurred, defendants are entitled to dismissal of plaintiff’s §240(1) claim. 17. The Second Department has affirmatively found that questions of fact clearly exist in instances where plaintiffs 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 (2nd Dept, 2015). In Podobedov, plaintiff believed 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 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. Plaintiff’s own cited legal authority warrants a denial of his motion for summary judgment, and granting of summary judgment dismissal to defendants. 18. All of plaintiff’s supporting authority is distinguishable from the instant matter, as the facts of each claim indicate that the falling object had been secured immediately prior to the 6 6 of 18 FILED: KINGS COUNTY CLERK 05/09/2023 11:42 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 05/09/2023 alleged incident, and was removed as a result of ongoing demolition. Specifically, in Bornschein v. Shuman, 7 A.D.3d 476 (2nd Dept. 2004) plaintiff was struck by a falling beam that, immediately prior to the incident, a coworker demolished materials that were holding the beam in place. 19. In Tylutki v. Tishman Technologies, 7 A.D.3d 696 (2nd 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. In Portillo v. Roby Anne Development, LLC, 32 A.D.3d 421 (2nd Dept. 2006), plaintiff was struck by material being removed from a demolition. 20. 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 that the subject brick that struck the plaintiff was mishandled and dropped by a coworker. 21. Ultimately, it is plaintiff’s burden 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, (2014). Plaintiff utterly fails to do so. 22. There is no evidence in admissible form to establish from whence the falling object came, how it came to fall and whether there was any call for hoisting or securing equipment under the statute. Plaintiff is unable to substantiate or prove his claim. Therefore, plaintiff’s motion for summary judgment under §240(1) must be denied. Defendants are entitled to summary judgment dismissal of plaintiff’s §240(1) claim. B. Plaintiff Was The Sole Proximate Cause Of His Injury 23. Where plaintiff is solely to blame for the injury, it necessarily means that there has been no §240(1) violation. Robinson, supra, 6 N.Y.3d 550, 553-55; Blake, supra, 1 N.Y.3d 280, 7 7 of 18 FILED: KINGS COUNTY CLERK 05/09/2023 11:42 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 05/09/2023 287. The Pattern Jury Instructions reflect a like-minded interpretation. PJI3d 2:217 (2003). The Court of Appeals has held that the defense of sole proximate cause is applicable where the violation of §240(1) played no role in the alleged incident. Blake, supra, 1 N.Y.3d 280, 287; see Weininger v. Hagedorn & Co., 91 N.Y.2d 958, 672 N.Y.S.2d 840 (1998). The proof reveals that plaintiff's own negligence was the sole proximate cause of the accident. Robinson, supra, 6 N.Y.3d 550, 553- 555; Blake, supra, 1 N.Y.3d 280, 287; Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35 (2004). 24. The facts adduced demonstrate that plaintiff placed himself in a position he should not have been in, too close to the wall or against the wall that was not necessary to perform his job duties. This act was a violation of safety protocols of his employment. 25. The controlling question "is not whether plaintiff was 'recalcitrant,' but whether a jury could have found that [the worker's] own conduct, rather than any violation of §240(1), was the sole proximate cause of his accident." See, Cahill, supra, 4 N.Y.3d at 39-40 (noting that in Blake, "[e]ven when a worker is not 'recalcitrant'...there can be no liability under §240(1)when the worker's actions are the 'sole proximate cause." 1 N.Y.3d at 290. 26. Plaintiff’s own actions were the sole proximate cause of his accident. See e.g., Petermann v. Ampal Realty Corp., 288 A.D.2d 54 (1st Dept. 2001)(where the plaintiff, an engineer for a building’s managing agent, was injured when he fell from a ladder while turning off a valve so that plumbing work could begin at the premises. Plaintiff’s §240(1) claim was dismissed since he was not engaged in work covered by the statute); Martinez v. City of New York, 93 N.Y.2d 322 (1999) (where a plaintiff who fell from a desk while checking for asbestos in a school was not covered by §240(1). 8 8 of 18 FILED: KINGS COUNTY CLERK 05/09/2023 11:42 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 05/09/2023 27. The indisputable evidence demonstrates that plaintiff failed to prove any violation of §240(1). Plaintiff's conduct was the sole proximate cause of the accident, and is not entitled to recover in the face of a record that shows no violation, and reveals that he was entirely responsible for his own injuries. 28. Notably, contradictory evidence exists as to how the accident actually occurred, plaintiff’s involvement, whether safety devices were in place at the time of the accident, whether plaintiff overtly disregarded safety. Due to the conflicting information as it currently exists, these issues cannot be determined as a matter of law. 29. Accordingly, for all of the foregoing reasons, plaintiff’s summary judgment motion on his §240(1) must be denied. Defendants are entitled to summary judgment dismissal of plaintiff’s §240(1) claim. POINT II. PLAINTIFF FAILED TO ESTABLISH ENTITLEMENT TO JUDGMENT AS A MATTER OF LAW UNDER §241(6); DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT DISMISSAL OF PLAINTIFF’S §241(6) CLAIM 30. Plaintiff’s claim of entitlement to judgment on liability under his Labor Law §241(6) cause of action for a purported violation of New York State Industrial Code 23-1.7(a)(1) at minimum presents a question of fact as to whether there was such a code violation. 31. Even if a plaintiff was engaged in one of the activities enumerated by the statute, he/she must still establish that the alleged violation applies to the facts of the case. See Ares v. State, 80 N.Y.2d 959, (1992); Francis v. Aluminum Co. of America, 240 A.D.2d 985 (3rd Dept. 1997); Haghighi v. Bailer, 240 A.D.2d 368 (2nd Dept. 1997). The following factors are critical to this analysis: 1) plaintiff’s job responsibilities; 2) the type of activity that caused the injuries; 3) 9 9 of 18 FILED: KINGS COUNTY CLERK 05/09/2023 11:42 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 05/09/2023 the time of the accident; and 4) the place of the accident. If a plaintiff’s accident occurs just before or after an activity enumerated in the statute, no §241(6) action will lie. 32. Plaintiff does not know how the accident occurred, where he was standing or walking at the time of the accident. There is no evidence that plaintiff was performing his job duties at the time of the alleged incident, though he may have operated the pulley system just before the accident. 33. The Second Department is unequivocal that an area is not one “normally exposed" to falling objects just because construction is being performed and an object falls as a result. See, Marin v. AP-Amsterdam 1661 Park LLC, 60 AD3d 824, 826, 875 (2nd Dept. 2009). 34. 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 §241(6) cause of action under Industrial Code 23-1.7(a)(1). 35. Similarly, in Mercado v. TPT Brooklyn Assoc., LLC, 38 A.D.3d 732, 733, (2nd Dept. 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. 36. Here, plaintiff failed to meet his burden. 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. 37. In fact, plaintiff’s cited authority supports the opposite -that there is a question of fact as to whether plaintiff has a credible §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 (2nd Dept.2007) plaintiff was struck 10 10 of 18 FILED: KINGS COUNTY CLERK 05/09/2023 11:42 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 05/09/2023 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 (2nd Dept. 2020) 38. In Amato v. State, 241 A.D.2d 400 (1st Dept. 1997) plaintiff, a demolition worker, was injured when he was struck by a falling metal brace during a demolition. As overhead work was not a primary focus of the project and there was otherwise no evidence that the subject area was one normally exposed to falling objects, plaintiff’s §241(6) claim was dismissed. 39. Recently, the Second Department determined that a plaintiff 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 §241(6). Reyes v. Sligo Constr. Corp., 2023 N.Y. App. Div. LEXIS 1679 (2nd Dept. March 29, 2023). 40. 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) cannot be established and otherwise dismissed. 41. Accordingly, MAC 60 and ROYAL are entitled to summary judgment dismissal of plaintiff’s §241(6) cause of action. At minimum, questions of fact exist as to whether plaintiff has a viable §241(6) claim premised on Industrial Code§23- 1.7(a)(1). POINT III. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT DISMISSAL OF PLAINTIFF’S LABOR LAW §200 CLAIM 42. Plaintiff’s Opposition to the within Cross-Motion does not oppose defendants’ application for summary judgment dismissal of plaintiff’s §200 cause of action. Hence, plaintiff 11 11 of 18 FILED: KINGS COUNTY CLERK 05/09/2023 11:42 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 05/09/2023 concedes that defendants are entitlement to summary judgment dismissal of plaintiff’s §200 cause of action. 43. An implicit precondition to the duty to maintain a safe workplace is that the party to be charged with that obligation "have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition." Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 505 (1993); Comes v. New York State Elec. & Gas Corp., 82 N.Y. 2d 876, 878 (1993). Lombardi v Stout, 80 N.Y.2d 290 (1991); Russin v Picciano & Son, 54 N.Y.2d 311 (1981). Where such a claim arises out of alleged dangers arising from a subcontractor's methods or materials, recovery against the owner or general contractor cannot be had unless it is shown that the party to be charged exercised some supervisory control over the injury-producing activity. Rizzuto v. L.A. Wenger Contracting Company, 91 N.Y.2d 343, 352 (1998); Comes v. New York State Electric & Gas Corporation, supra, at 876, 877; Lombardi v Stout, supra, at 295; Allen v Cloutier Constr. Corp., 44 N.Y.2d 290 (1978); Kappel v Fisher Bros. 6th Ave. Corp., 39 N.Y.2d 1039 (1976)(rule is an outgrowth of the basic common-law principle that "an owner or general contractor [sh]ould not be held responsible for the negligent acts of others over whom [the owner or general contractor] had no direction or control). 44. Plaintiff fails to demonstrate that defendants either created or had notice of any alleged dangerous condition that led to plaintiff's accident, or that defendants had specific authority to dictate how the work was performed. 45. MAC 60 and Royal cannot be held liable under §200 as they did not exercise supervision, direction or control over the alleged injury-producing activity. Gilmanov, Abrik and plaintiff himself all testified that only Gilmanov and Abrik directed/instructed plaintiff on how to 12 12 of 18 FILED: KINGS COUNTY CLERK 05/09/2023 11:42 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 05/09/2023 perform the work, and perform it safely. Gilmar provided equipment, means, method and manner of the work, and safety instructions. 46. MAC 60 or Royal did not create any alleged defective condition, and lacked notice of any alleged dangerous condition that caused or contributed to plaintiff’s accident. A space for windows had just been created that day in the exterior wall. Gilmanov testified that he had not yet requested that Royal install protective coverings, and there is no evidence that his foreman or any Gilmar employee made such a request. 47. Accordingly, MAC 60 and Royal are entitled to summary judgment on plaintiff’s §200 cause of action. POINT IV. MAC 60 AND ROYAL ARE ENTITLED TO SUMMARY JUDGMENT DISMISSAL OF PLAINTIFF’S CLAIMS IN THEIR ENTIRETY FOR PLAINTIFF’S SPOLIATION OF EVIDENCE 48. Spoliation sanctions are appropriate where a litigant, intentionally or negligently, disposes of evidence involved in an accident, depriving an adversary of an opportunity to inspect them." Utica Mut. Ins. Co. v. Berkoski Oil Co., 2009 NY Slip Op 371, ¶ 2, 58 A.D.3d 717, 718 (2nd Dept. 2009); Kirkland v. New York City Hous. Auth., 236 A.D.2d 170, 173 (1st Dept. 1997). A spoliator of physical evidence is properly punished by the striking of its pleading: even if the destruction occurred through negligence rather than willfulness, and even if the evidence was destroyed before the spoliator became a party, provided it was on notice that the evidence might be needed for future litigation. DiDomenico v. C & S Aeromatik Supplies, Inc., 682 N.Y.S.2d 452, 459, 252 A.D.2d 41, 53 (2nd Dept. 1998); Squitieri v. City of New York, 669 N.Y.S.2d 589, 590, 248 A.D.2d 201, 202 (1st Dept. 1998). 13 13 of 18 FILED: KINGS COUNTY CLERK 05/09/2023 11:42 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 05/09/2023 49. Striking a pleading is not an unduly harsh penalty where, as here, evidence is not preserved, as the failure to preserve such evidence irrevocably strips the aggrieved party of its usefulness, while exposing that party to prejudice: Nor do we find the dismissal of…action to be inappropriate or too harsh…Commentary suggests that personal injury specialists, defense as well as plaintiff, almost uniformly recognize the elevated priority of preserving the evidence, so that drastic sanctions are not necessarily unduly harsh sanctions when a critical item of evidence is not preserved. Kirkland, supra, 236 A.D.2d at 173; see, Mudge, Rose, Guthrie, Alexander & Ferdon v. Penguin Air Conditioning Corp., 221 A.D.2d 243 (1st Dept. 1995) ("Dismissal of the amended Complaint warranted because of plaintiff’s negligent loss of a key piece of evidence which defendants never had an opportunity to examine."). 50. Plaintiff was on notice of the need to preserve evidence relating to his accident. Plaintiff’s Complaint alleges that he was injured on January 11, 2018. Plaintiff expeditiously consulted with his attorneys, who quickly filed his Complaint on July 26, 2018. Exhibit “A,” NYSCEF Document #1, 136. Presumably, plaintiff was advised to retain the hardhat he allegedly was wearing at the time of the alleged incident. 51. Plaintiff testified that not everyone on the job wore hardhats/helmets, but he did. Exhibit “H” p. 45, NYSCEF Document #143; Exhibit “J” p. 198,NYSCEF Document#145. 52. Plaintiff further testified that the piece of block that allegedly fell on him, knocked the hardhat off his head. Exhibit “J” p. 198, NYSCEF Document#145. 53. Plaintiff testified at his 11/24/2020 deposition that “he couldn’t keep anything,” the hardhat was “kept by his friend, Lorenzo Cruz,” that he no longer had possession of the hardhat allegedly worn on the date of the incident, did not know its whereabouts or whether it still existed. Exhibit “J” pp. 198-199, NYSCEF Document#145. 14 14 of 18 FILED: KINGS COUNTY CLERK 05/09/2023 11:42 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 05/09/2023 54. Thus, plaintiff admits to the spoliation of evidence. Plaintiff’s failure to preserve the hardhat irrevocably strips defendants of evidence, and exposes defendants to prejudice. 55. Oddly, plaintiff’s claims are based on an alleged failure of the defendants to provide adequate safety devices/equipment, yet plaintiff failed to preserve the hardhat safety protection, but disingenuously argues that the hardhat is unimportant, irrelevant evidence. 56. Plaintiff’s spoliation deprives the defendants of an opportunity to inspect the hardhat plaintiff claims was knocked off his head, or have a liability expert examine and opine as to the manner, direction, angle, speed, force of impact, and/or other factors or the significance of the hardhat that may impact on defendants’ defense of this matter. Plaintiff’s arguments to the contrary should be disregarded, as neither plaintiff nor his attorneys are qualified experts to determine the significance of examining the hardhat. 57. Due to plaintiff’s carelessness and ineptitude at preserving evidence related to his alleged accident, defendants are bereft of evidence to which they are entitled to defend against plaintiff’s claims and are precluded from significant evidence. 58. Plaintiff compromises the ability of defendants to fully develop their defenses. Therefore, plaintiff’s Complaint should be stricken. DiDomenico, supra, 682 N.Y.S.2d at 459-60; Squitieri, supra, 669 N.Y.S.2d at 590; Sonmez v. World On Columbus, 261 A.D.2d 199, (1st Dept. 1999). 59. Alternatively, should the Court determine not to dismiss plaintiff’s Complaint, then the Court should issue an adverse inference instruction at the time of trial, advising the jury that plaintiff destroyed relevant evidence, prejudicing the defendants. 15 15 of 18 FILED: KINGS COUNTY CLERK 05/09/2023 11:42 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 05/09/2023 WHEREFORE, it is respectfully requested that this Honorable Court issue an Order: (1) denying plaintiff’s motion for partial summary judgment on his Labor Law §§240(1) and 241(6) claims; (2) granting defendants/third-party plaintiffs’ MAC 60 LLC and ROYAL HOME IMPROVEMENTS, INC. Cross-Motion pursuant to CPLR §3212 for summary judgment and dismissing plaintiff’s Complaint on his Labor Law §§200, 240(1) and 241(6) causes of action, and all claims and cross-claims against MAC 60 LLC and ROYAL HOME IMPROVEMENTS, INC. in their entirety; (3) striking and dismissing plaintiff’s Complaint for spoliation of evidence based on its destruction of evidence needed for this litigation, prejudicing the defendants, or alternatively, issuing an adverse inference instruction at the time of trial, advising the jury that plaintiff destroyed relevant evidence, prejudicing the defendants; and (4) for such further and different relief as this Court deems just and proper. Dated: Garden City, New York May 9, 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.com 16 16 of 18 FILED: KINGS COUNTY CLERK 05/09/2023 11:42 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 05/09/2023 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 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 REPLY AFFIRMATION IN FURTHER SUPPORT OF CROSS-MOTION contains 4,197 words, exclusive of the caption, signature block, and this page, and is within the word limit. The word count was determined in Microsoft word, in which the document was created. Dated: May 9, 2023 Signature: Print Signer’s Name: Afaf Sulieman 17 17 of 18 FILED: KINGS COUNTY CLERK 05/09/2023 11:42 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 05/09/2023 18 18 of 18