Preview
FILED: NEW YORK COUNTY CLERK 04/28/2023 08:01 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 596 RECEIVED NYSCEF: 04/28/2023
EXHIBIT H
FILED: NEW YORK COUNTY CLERK 04/28/2023
10/09/2019 08:01
11:01 PM
AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 596
452 RECEIVED NYSCEF: 04/28/2023
10/09/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
---------------------------------------------------------------------------X Index No.: 158327/2013
KEVIN McGONIGAL,
AFFIRMATION IN
Plaintiff, PARTIAL OPPOSITION TO
-against- PLAINTIFF’S NOTICE OF
CROSS-MOTION FOR
NYY STEAK MANHATTAN, LLC, PLAZA SUMMARY JUDGMENT
CONSTRUCTION CORP. and BARING
INDUSTRIES, INC.,
Defendants.
---------------------------------------------------------------------------X
PLAZA CONSTRUCTION CORP., Third-Party
Defendant/Third-Party Plaintiff, Index No.: 595146/2014
-against-
BARING INDUSTRIES, INC.,
Third-Party Defendant.
---------------------------------------------------------------------------X
BARING INDUSTRIES, INC., Second Third-Party
Second Third-Party Plaintiff, Index No.: 595130/2015
-against-
DAY & NIGHT REFRIGERATION CORP. and
KIMCO REFRIGERATION CORP.,
Second Third-Party Defendants.
----------------------------------------------------------------------------X
NYY STEAK MANHATTAN LLC, and PLAZA Third Third-Party
CONSTRUCTION LLC f/k/a PLAZA
CONSTRUCTION CORP., Index No.: 595638/2015
Third Third-Party Plaintiffs,
-against-
B&G ELECTRICAL CONTRACTORS, ESS & VEE
ACOUSTICAL CONTRACTORS, INC. and
BARING INDUSTRIES, INC.,
Third Third-Party Defendants
--------------------------------------------------------------------------X
1 of 11
FILED: NEW YORK COUNTY CLERK 04/28/2023
10/09/2019 08:01
11:01 PM
AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 596
452 RECEIVED NYSCEF: 04/28/2023
10/09/2019
EILEEN R. FULLERTON, an attorney duly admitted to practice law before the Courts of
the State of New York, hereby affirms the following to be true upon information and belief under
penalties of perjury:
1. I am a member of the firm of FULLERTON BECK, LLP, attorneys for third third-
party defendant, B&G ELECTRICAL CONTRACTORS (hereinafter “B&G”), and as such am
fully familiar with the facts and circumstances of the instant matter pursuant to a review of the file
maintained by this office.
2. The within affirmation is submitted in partial Opposition to Plaintiff’s cross-
motion, seeking an Order for summary judgment on his Labor Law §240(1) and 241(6) claims
against Defendants, NYY STEAK MANHATTAN, LLC (hereinafter “NYY STEAK”), PLAZA
CONSTRUCTION CORP (hereinafter “PLAZA”) and BARING INDUSTRIES, INC. (hereinafter
“BARING”).
PRELIMINARY STATEMENT
3. As explained more fully below, Plaintiff’s accident did not arise out of an elevation-
related hazard such that the accident is within the purview of Labor Law §240(1). At the time of
the accident, Plaintiff was walking backwards while transporting a piece of equipment in a dolly
when he tripped over a piece of wood debris, which then caused him to land on an elevator pit
located at the same level where he was walking. Thus, there is no evidence that his injuries resulted
either from a fall from a height or from being struck by an object falling from a height. Further,
none of the protective devices identified in the statute could have prevented the accident.
4. With regards to Plaintiff’s claims under Labor Law §241(6) concerning NYCRR
§23-1.30 which covers illumination, it is B&G’s position that whether the lighting was inadequate,
which is hereby denied, is irrelevant here. Plaintiff was unable to see where he was going not
2 of 11
FILED: NEW YORK COUNTY CLERK 04/28/2023
10/09/2019 08:01
11:01 PM
AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 596
452 RECEIVED NYSCEF: 04/28/2023
10/09/2019
because of the lighting condition, but because he was walking backwards while transporting a huge
piece of equipment. Thus, the lighting was not the proximate cause of Plaintiff’s accident. Further,
it is undisputed that B&G installed lighting in the area and Plaintiff offers nothing more than vague
testimony regarding the lighting condition which is insufficient to establish prima facie entitlement
to summary judgment.
5. As such, Plaintiff’s motion seeking summary judgment on his Labor Law §240(1)
claim and on his §241(6) based on NYCRR §23-1.30 must be denied.
ARGUMENT
POINT I
SUMMARY JUDGMENT STANDARD
6. Summary judgment should be granted where a party has tendered evidentiary proof
in admissible form to demonstrate the absence of any material issues of fact. See Alvarez v.
Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S. 2d 923 (1986); Winegrad v. New York University
Medical Center, 64 N.Y.2d 851, 487 N.Y.S. 2d 316 (1985). As stated by the Court of Appeals,
“when there is no genuine issue to be resolved at trial, the case should be summarily decided, and
an unfounded reluctance to employ the remedy will only serve to swell the Trial Calendar and thus
deny to other litigants the right to have their claims promptly adjudicated.” Andre v. Pomeroy, 35
N.Y. 2d 361, 364, 362 N.Y.S.2d 131, 133 (1974).
7. It is well established that to defeat a motion for summary judgment, a triable issue
of fact must be shown to be “real, not feigned, since a sham or frivolous issue will not preclude
summary relief.” Fender v. Prescott, 101 A.D.2d 418, 425, 476 N.Y.S. 2d 128, 133 (1st Dept.
1984), aff’d, 64 N.Y.2d 1977. It has been stated, “mere surmise, suspicion and accusation are
insufficient to defeat summary judgment.” Holy Spirit Assn. v. Harper and Row, 101 Misc.2d 30,
3 of 11
FILED: NEW YORK COUNTY CLERK 04/28/2023
10/09/2019 08:01
11:01 PM
AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 596
452 RECEIVED NYSCEF: 04/28/2023
10/09/2019
35, 420 N.Y.S.2d 56, 59 (1979); Shaw v. Time-Life Records, 38 N.Y.2d 201, 207, 379 N.Y.S.2d
390, 396 (1975).
8. As outlined more fully below, Plaintiff has failed to establish prima facie
entitlement to summary judgment on his Labor Law §240(1) claim where there is no evidence that
his injuries resulted either from a fall from a height or from being struck by an object falling from
a height. Plaintiff has also failed to establish prima facie entitlement to summary judgment on his
Labor Law §241(6) claim predicated upon NYCRR §23-1.30, where there is no evidence that the
lighting was the proximate cause of the accident or that it was otherwise inadequate.
POINT II
PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT MUST BE DENIED AS
PLAINTIFF’S ACCIDENT IS NOT A GRAVITY-RELATED ACCIDENT AND NOT
COVERED UNDER LABOR LAW §240(1)
9. To sustain a cause of action under Labor Law §240(1) a plaintiff must prove that
Labor Law §240(1) was violated and that the violation was the proximate cause of his injuries.
Blake v. Neighborhood Housing Services of New York, 1 N.Y.3d 280, 771 N.Y.S.2d 484 (2003).
It is well settled that Labor Law §240(1) protects workers against “‘special hazards’ that arise
when the work site is either elevated or positioned below the level where ‘materials or load [are]
hoisted or secured,’ and the hazards are “limited to such specific gravity-related accidents as falling
from a height or being struck by a falling object that was improperly hoisted or inadequately
secured.” (Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 (1993), quoting Rocovich v.
Consol. Edison Co., 78 NY2d 509 [1991]). The “special hazards… do not encompass any and all
perils that may be connected in some tangential way with the effects of gravity.” (Ross, supra at
501 [emphasis added]).
4 of 11
FILED: NEW YORK COUNTY CLERK 04/28/2023
10/09/2019 08:01
11:01 PM
AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 596
452 RECEIVED NYSCEF: 04/28/2023
10/09/2019
10. Labor Law § 240(1) “was designed to prevent those types of accidents in which the
scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured
worker from harm directly flowing from the application of the force of gravity to an object or
person.” (Runner v New York Stock Exch., Inc., 13 NY3d 599, 895 N.Y.S.2d 279
[2009], quoting Ross, supra; Naughton v City of New York, 94 AD3d 1, 940 N.Y.S.2d 21 [1st
Dept 2012]).
11. Plaintiff’s cross-motion must be denied as Plaintiff has not and cannot show he was
exposed to a gravity-related risk within the purview of Section 240(1) of the Labor Law. Here, the
evidence is clear that the proximate cause of the accident was the debris on which Plaintiff tripped
and the method in which Plaintiff was transporting materials into the job site, i.e. while walking
backwards.
12. Plaintiff tripped over a piece of wood debris and landed in an elevator pit located
at the same level where he was walking at the time of the accident. Thus, there is no indication
that his injuries resulted either from a fall from a height or from being struck by an object falling
from a height. (See e.g., German v Antonio Dev., LLC, 128 AD3d 579 [1st Dept 2015] [accident
not covered by §240(1) as plaintiff “not struck by any object, elevated or otherwise; rather, he
slipped on a wet steel grate, and thus, the impetus for his fall was his slipping, not the direct
consequence of gravity”]; Mitchell v County of Jefferson, 226 AD2d 1109 [4th Dept 1996], lv
denied 91 NY2d 801, 669 N.E.2d 533, 666 N.Y.S.2d 563 [1997] [injury not related to effects of
gravity where plaintiff fell three to four feet after stepping on and falling off of pile of debris]).
13. In a matter similar to the present case, the Court of Appeals held that a worker’s
slip and fall into a trough was not covered by the Labor Law §240, as the worker’s proximity to
the trough did not entail “an elevation-related risk which called for any of the protective devices
5 of 11
FILED: NEW YORK COUNTY CLERK 04/28/2023
10/09/2019 08:01
11:01 PM
AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 596
452 RECEIVED NYSCEF: 04/28/2023
10/09/2019
of the type listed in” the statute. (Rocovich, supra at 514-515; see also Torkel v NYU Hosps. Ctr.,
63 AD3d 587, 883 N.Y.S.2d 8 [1st Dept 2009] ["hazards that warrant protection contemplated by
the statute are those related to the effects of gravity where protective devices are called for…
because of a difference between the elevation level of the required work and a lower level"]). Thus,
the circumstances surrounding Plaintiff’s work did not subject him to the sort of risk which section
240(1) was intended to obviate.
14. To the extent Plaintiff landing in the pit can be considered a “fall”, Labor Law §240
remains inapplicable as plaintiff’s injuries were the result of his trip and fall over debris and not
the direct consequence of a failure to provide adequate protection against a risk arising from a
physically significant elevation differential. (See Wilinski v. 334 East 92nd Housing Development
Fund Corp., 18 N.Y.3d 1, 935 N.Y.S.2d 551 [2011]). Plaintiff’s accident was caused by debris left
on his path, which is a hazard unassociated with performing elevation-related work.
15. In Favreau v. Barnett & Barnett, LLC, 47 A.D.3d 996, 849 N.Y.S.2d 691 (3d Dept.
2008), plaintiff sustained an injury while walking backward up a pitched roof carrying a piece of
sheet rock and steps on a piece of ice resulting in a slip and fall onto the same spot of the roof. The
Court held that the incident should be viewed no differently than any other slip-and-fall case and
therefore had nothing to do with an elevation differential. The Court in Favreau held that the
accident could have occurred in the same fashion in a non-elevated setting, as such, same should
be treated as a slip and fall case caused by icy conditions not by an elevation hazard. The same
analysis applies here, Mr. McGonigal’s accident could have and would have happened regardless
of the pit, as his accident was proximately caused by the debris left in his path in which he tripped.
6 of 11
FILED: NEW YORK COUNTY CLERK 04/28/2023
10/09/2019 08:01
11:01 PM
AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 596
452 RECEIVED NYSCEF: 04/28/2023
10/09/2019
16. Based on the foregoing, Plaintiff’s cross-motion must be denied as it is clear that
Plaintiff’s accident did not arise out of a gravity-related hazard, and was in fact merely a trip and
fall over construction debris.
POINT III
PLAINTIFF’S CROSS-MOTION SEEKING JUDGMENT UNDER LABOR LAW §241(6)
PURSUANT TO INDUSTRIAL CODE NYCRR §23-1.30 MUST BE DENIED AS THE
LIGHTING CONDITION WAS NOT THE PROXIMATE CAUSE OF HIS ACCIDENT
17. Under New York Law, “in order [for a plaintiff] to establish a Labor Law §241(6)
claim, a plaintiff is required to plead and prove a specific violation of the Industrial Code.”
Kowalik v. Lipschutz, 81 A.D.3d 782, 783, 917 N.Y.S.2d 251, 252 (2d Dept. 2011) (“A plaintiff’s
failure to identify a violation of any specific provision of the State Industrial Code precludes
liability under Labor Law § 241(6)”) citing, Ross, supra.
18. The Court of Appeals has held that “in order to support a claim under Section
241(6), the particular provision relied upon by a plaintiff must mandate compliance with concrete
specifications and not simply declare general safety standards or reiterate common-law
principles.” Misicki v. Caradonna, 12 N.Y.3d 511, 515, 882 N.Y.S.2d 375 (2009). Furthermore,
“the interpretation of an Industrial Code regulation and the determination as to whether a particular
condition is within the scope of the regulation generally present questions of law for the court.”
Spence v. Island Estates at Mt. Sinai II, LLC, 79 A.D.3d 936, 938, 914 N.Y.S.2d 203, 206 (2d
Dept. 2010).
19. 12 NYCRR §23-1.30 requires illumination of at least 10-foot candles in any area
where persons are required to work. It is undisputed that B&G installed temporary lighting at the
project, as testified by Mr. Chin (CHIN transcript at p. 43) and Mr. Usher (USHER transcript at p.
140). It was conceded by PLAZA that B&G installed temporary lighting in the area of the elevator
7 of 11
FILED: NEW YORK COUNTY CLERK 04/28/2023
10/09/2019 08:01
11:01 PM
AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 596
452 RECEIVED NYSCEF: 04/28/2023
10/09/2019
pit where Plaintiff’s alleged accident occurred (USHER transcript at p. 140). It was also conceded
by PLAZA that Mr. Usher found the lighting to be adequate (USHER transcript at p. 140). It is
further undisputed that neither B&G nor PLAZA ever receive complaints about the lighting
conditions in the area where plaintiff fell at any time prior to, or after his accident (See CHIN
transcript at pp. 24-25 and USHER transcript at p. 146). More importantly, it is undisputed that
B&G installed lighting in the area and Plaintiff offers no evidence to the contrary. Mr. Chin
described the temporary lighting as follows:
Q. Could you describe the temporary lighting that B&G installed at
the Yankee Steakhouse job?
A. Every six feet there was a light
Q. Would you consider it string lighting?
A. Yeah, string.
(CHIN transcript at p. 22, l. 8-15)
Q. Could you describe – I know you said the bulbs were six feet
apart. Do you know the wattage on the bulbs? Were they encased in
any encasement?
A. 100 watt bulbs and they had a plastic cage, yellow.
(CHIN transcript at p. 25, l. 13-18)
20. In order to establish a violation of 12 NYCRR §23-1.30, a plaintiff must offer more
than vague evidence that the lighting in the area where he had his accident was dark, poor, or a
little dark. Cary v. Port Authority of New York and New Jersey, 32 AD3d 732, 821 N.Y.S.2d 178
(1st Dept. 2006); Cahill v. Triborough Bridge & Tunnel Authority, 31 AD3d 347, 819 N.Y.S.2d
732 (1st Dept. 2006); Herman v. St. John’s Episcopal Hospital, 242 AD2d 316, 678 N.Y.S.2d 635
(2d Dept. 1997). Instead, the evidence proffered to demonstrate inadequate lighting falling below
the standard prescribed by the regulation must be of the kind which conclusively establishes an
absence of light. Dipalma v. Metro. Transp. Auth., 20 Misc. 3d 1128(a), 1128A, 872 N.Y.S.2d 690
(Bronx County 2008).
8 of 11
FILED: NEW YORK COUNTY CLERK 04/28/2023
10/09/2019 08:01
11:01 PM
AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 596
452 RECEIVED NYSCEF: 04/28/2023
10/09/2019
21. Here, Plaintiff offers no evidence of the amount of lighting in the area where he fell
and other than vague conditions, which do not rise to the level of establishing prima facie
entitlement to summary judgment.
22. Further, it is clear from Plaintiff’s testimony that his accident was caused solely by
the debris left in the area by another trade and by the method in which he was transporting materials
into the job site, i.e. while walking backwards. Whether the lighting was inadequate, which is
hereby denied, is irrelevant here as Plaintiff was unable to see where he was going because he was
walking backwards when he tripped on a piece of wooden debris. Plaintiff has relied exclusively
on testimony that merely describes the lighting condition in the area and speculates without
explaining how the lighting contributed to the accident.
23. The First Department caselaw is consistent in holding that mere words describing
lighting conditions as “poor” or “dark” are insufficient to establish that the lighting was statutorily
inadequate. For example, in Cahill, supra, the Court held that plaintiff’s vague testimony that the
lighting was “poor” and the basement where he fell was “dark” was insufficient to create an
inference that the amount of lighting fell below the specific statutory standard. In Daniel v. 384
Bridge St. LLC, 2016 N.Y. Misc. LEXIS 2971 (Sup. Ct., New York County, 2013), the Court
found plaintiff’s testimony that the area was “dark” or “a little dark”, and that the lighting “was
poor that morning” and that the job had “a lighting problem” were mere conclusory allegations
insufficient to create an inference that the amount of lighting fell below the specific statutory
standard.
24. The Court in Daniel found that plaintiff’s own testimony that temporary lighting
was installed in the area was contradictory with his testimony that there was a lighting problem at
the jobsite. (See also Carty, supra; Herman v St. John's Episcopal Hosp., 242 AD2d 316, [2nd Dept.
9 of 11
FILED: NEW YORK COUNTY CLERK 04/28/2023
10/09/2019 08:01
11:01 PM
AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 596
452 RECEIVED NYSCEF: 04/28/2023
10/09/2019
1997]). Here, as in Daniel, while the Plaintiff described the lighting in the area as “wasn’t very
good down there” it is clear that his accident occurred because he tripped over a piece of debris,
which he did not observe because he was walking backwards at the time of his accident.
25. Sarmiento v. C&E Assoc., 40 A.D.3d 524 (1st Dept. 2004) is on point here. In
Sarmiento, plaintiff testified he fell on water on a staircase, while also claiming and submitting an
affidavit from an expert engineer that the lighting in the area was inadequate. The Court found that
whether the lighting was adequate was irrelevant as the water, and not the lighting, was the
proximate cause of plaintiff’s accident. Here, as in Sarmiento, whether the lighting was adequate
or not is irrelevant. Plaintiff’s accident was caused by debris left in the area, which Plaintiff was
unable to observe due to the fact that he was walking backwards. In Sarmiento, the plaintiff used
an expert to support his claim about insufficient lighting, and still the Court found that the
adequacy of the lighting was not the cause of the accident but rather the water he slipped on. In
the present matter, Plaintiff does not have an expert to support his allegation that the light was
somehow inadequate or below the statutory standard, making his arguments even less persuasive
than the plaintiff in Sarmiento.
26. Plaintiff has merely pointed to testimony describing a condition in the area and not
that the lighting condition was the proximate cause of the accident, which is a necessary element
to establish liability. See Dorman v. 19-20 Indus. City Assocs., Inc., 4 Misc. 3d 1007(A) (Sup. Ct.,
Kings County, 2000).
27. The only conclusion that can be drawn from the testimony of all parties is that
Plaintiff fell as a result of a wooden debris left on the floor, which he was unable to see because
his work required him to walk backwards preventing him from observing the dangerous condition
in his path. The fact is, the area where the alleged accident occurred, was sufficiently lighted,
10 of 11
FILED: NEW YORK COUNTY CLERK 04/28/2023
10/09/2019 08:01
11:01 PM
AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 596
452 RECEIVED NYSCEF: 04/28/2023
10/09/2019
lighting which was approved by PLAZA, and there was never any complaint made to B&G or
PLAZA about insufficient or inadequate lighting, which completely voids any arguments by the
parties that the lighting somehow caused the accident.
CONCLUSION
28. Based on the evidence in the record, B&G respectfully submit that Plaintiff has
failed to establish prima facie showing of entitlement to summary judgment on his Labor Law §§
240(1) and 241(6) claim predicated upon NYCRR §23-1.30. Plaintiff accident did not arise out of
an elevation-related hazard such that the accident is within the purview of Labor Law §240(1), as
there is no evidence that his injuries resulted either from a fall from a height or from being struck
by an object falling from a height. Further, the evidence shows that the lighting condition was not
the proximate cause of the accident and in any event, Plaintiff offers nothing more than vague
testimony regarding the lighting condition which is insufficient to establish prima facie entitlement
to summary judgment. In light of the foregoing, Plaintiff’s motion for summary judgment on his
Labor Law §§ 240(1) and 241(6) claim predicated upon NYCRR §23-1.30 must be denied, and
should be dismissed
WHEREFORE, it is respectfully requested that Plaintiff’s motion be denied with respect
to that portion seeking summary judgment his Labor Law 240(1) claim and on his §241(6) based
on NYCRR §23-1.30, and for any further relief this court deems appropriate.
Dated: White Plains, New York
October 9, 2019
Eileen R. Fullerton, Esq.
11 of 11
FILED: NEW YORK COUNTY CLERK 04/28/2023
10/11/2019 08:01
10:02 PM
AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 596
459 RECEIVED NYSCEF: 04/28/2023
10/11/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--------------------- --------------------------------------------X
KEVIN McGONIGAL, Motion Sequence No. 007
Plaintiff, Index No. 158327/13
-against -
AFFIRMATION
NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION IN PARTIAL
CORP. and BARING INDUSTRIES, INC., OPPOSITION
Defendants. Hon. Margaret Chan
__-----_____________--------------------------------------------------------X
PLAZA CONSTRUCTION CORP., Return Date: 10/22/19
Third-Party Plaintiff,
-against -
TP Index No.:
BARING INDUSTRIES, INC., 595146/14
Third-Party Defendant.
--------------------------------------------------- ------------X
BARING INDUSTRIES, INC.,
Second Third-Party Plaintiff,
-against -
Second TP Index No.:
DAY & NITE REFRIGERATION CORP. and KIMCO 595130/15
REFRIGERATION CORP.,
Second Third-Party Defendants.
--------------------------------------------------------------------------------X
NYY STEAK MANHATTAN, LLC & PLAZA CONSTRUCTION
LLC f/k/a PLAZA CONSTRUCTION CORP.,
Third Third-Party Plaintiffs,
-against-
B&G ELECTRICAL CONTRACTORS, ESS & VEE
ACOUSTICAL CONTRACTORS, INC. and BARING
INDUSTRIES, INC.,
Third Third-Party Defendants.
_______________--------..-----------------------------------X
1 of 3
FILED: NEW YORK COUNTY CLERK 04/28/2023
10/11/2019 08:01
10:02 PM
AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 596
459 RECEIVED NYSCEF: 04/28/2023
10/11/2019
DAVID A. LORE, an attorney duly admitted to the practice of law before the Courts of the State
of New York, hereby affirms the following under the penalty of perjury and pursuant to CPLR §2106:
1. I am a member of the law firm MILBER MAKRIS PLOUSADIS & SEIDEN, LLP,
attorneys for Second Third-Party Defendants, DAY & NITE REFRIGERATION CORP. and K.I.M. CO.
REFRIGERATION CORP. s/h/a KIMCO REFRIGERATION CORP. (collectively referred to as "Day &
Nite"). As such, I am familiar with the facts and circumstances of this matter based upon a review of the
file maintained by this office.
2. I respectfully submit this affirmation in partial opposition to the judgment cross-
summary
motion made on behalf of plaintiff KEVIN MCGONIGAL to the extent that it seeks summary judgment
pursuant to the Labor Law §240(1) cause of action as against the direct defendants. It is noted that plaintiff
does not have any claims as against Day & Nite. Nevertheless, Day & Nite, as a third-party defendant,
has the same rights adverse to plaintiff as do the direct defendants/third-party plaintiffs, and has standing
to oppose plaintiff's claims on that basis. See, CPLR §1008; Prigent v. Friedman, M.S., 264 A.D.2d 568,
(13t
695 N.Y.S.2d 79 Dept. 1999); De Pan v. First Nat. Bank of Glens Falls, 98 A.D.2d 885, 470 N.Y.S.2d
869 (3d Dept. 1983).
3. As for the §240(1) claim, Day & Nite agrees with and respectfully adopts and incorporates
by reference herein the arguments raised by counsel for Third Third-Party Defendant B&G ELECTRICAL
CONTRACTORS in B&G's opposition papers to plaintiff's cross-motion. At the very least, triable issues
of fact exist as to whether the elevator pit is the type of elevation differential that the statute is intended to
cover.
4. As for the §241(6) claim, it is noted, arguendo, that even if there is a finding of liability
under the statute, none of the predicate Industrial Code provisions alleged to have been violated in
plaintiff's motion papers are applicable to Day & Nite's responsibilities at the site. Any responsibilities
delineated by those Code provisions fell upon other contractors. It is undisputed that Day & Nite was not
openings"
responsible for: the guarding of alleged "hazardous (§23-1.7(b)), the requirements for the
2
2 of 3
FILED: NEW YORK COUNTY CLERK 04/28/2023
10/11/2019 08:01
10:02 PM
AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 596
459 RECEIVED NYSCEF: 04/28/2023
10/11/2019
of railings (§23-1.15), railings for scaffolds (§23-5.1(j)), hazards and the
assembly safety safety tripping
accumulation of dirt and debris (§23-1.7(e)), and §23-1.30 (proper illumination).
5. Finally, the Court is respectfully referred to Day & Nite's own motion papers, whereiñ Day
& Nite has moved for summary judgment and the dismissal of the Second Third-Party Complaint
primarily on the basis of the forum selection clause in its contract with Baring Industries, for a further
recitation of the facts and circumstances of the project and the alleged accident. Day & Nite maintains
that the Second Third-Party Complaint, and any and all claims as against Day & Nite, must be dismissed
in their entirety as a matter of law.
WHEREFORE, it is respectfully requested that the Court issue an Order: A) denying plaintiff's
cross-motion to the extent indicated above, and B) awarding such other and further relief as the Court
deems just and proper.
Dated: Woodbury, New York
October 11, 2019
bavid A. LoRe, Esq.
3
3 of 3
FILED: NEW YORK COUNTY CLERK 04/28/2023
10/11/2019 08:01
10:02 PM
AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 596
460 RECEIVED NYSCEF: 04/28/2023
10/11/2019
AFFIDAVIT OF SERVICE
STATE OF NEW YORK )
) ss.:
COUNTY OF NASSAU )
LAURA L. NORMANDIN, being duly sworn, deposes and says, that deponent is not a
party to the action, is over 18 years of age and resides in Suffolk County, New York.
11th
That on the day of October, 2019, deponent served the within AFFIRMATION IN
PARTIAL OPPOSITIONupon:
Nikolas E. Diamantis, Esq. SMITH MAZURE DIRECTOR WILKINS
LAW OFFICES OF CHARLES J. SIEGEL YOUNG & YAGERMAN, P.C.
Attorneys for Defendant/Third-Party Attorneys for Third Third-Party Defendant
Defendant/ ESS & VEE ACOUSTICAL
Second Third-Party Plaintiff CONTRACTORS, INC.
BA
Preview
FILED: NEW YORK COUNTY CLERK 04/28/2023 08:01 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 596 RECEIVED NYSCEF: 04/28/2023 EXHIBIT H FILED: NEW YORK COUNTY CLERK 04/28/2023 10/09/2019 08:01 11:01 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 596 452 RECEIVED NYSCEF: 04/28/2023 10/09/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------------------X Index No.: 158327/2013 KEVIN McGONIGAL, AFFIRMATION IN Plaintiff, PARTIAL OPPOSITION TO -against- PLAINTIFF’S NOTICE OF CROSS-MOTION FOR NYY STEAK MANHATTAN, LLC, PLAZA SUMMARY JUDGMENT CONSTRUCTION CORP. and BARING INDUSTRIES, INC., Defendants. ---------------------------------------------------------------------------X PLAZA CONSTRUCTION CORP., Third-Party Defendant/Third-Party Plaintiff, Index No.: 595146/2014 -against- BARING INDUSTRIES, INC., Third-Party Defendant. ---------------------------------------------------------------------------X BARING INDUSTRIES, INC., Second Third-Party Second Third-Party Plaintiff, Index No.: 595130/2015 -against- DAY & NIGHT REFRIGERATION CORP. and KIMCO REFRIGERATION CORP., Second Third-Party Defendants. ----------------------------------------------------------------------------X NYY STEAK MANHATTAN LLC, and PLAZA Third Third-Party CONSTRUCTION LLC f/k/a PLAZA CONSTRUCTION CORP., Index No.: 595638/2015 Third Third-Party Plaintiffs, -against- B&G ELECTRICAL CONTRACTORS, ESS & VEE ACOUSTICAL CONTRACTORS, INC. and BARING INDUSTRIES, INC., Third Third-Party Defendants --------------------------------------------------------------------------X 1 of 11 FILED: NEW YORK COUNTY CLERK 04/28/2023 10/09/2019 08:01 11:01 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 596 452 RECEIVED NYSCEF: 04/28/2023 10/09/2019 EILEEN R. FULLERTON, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following to be true upon information and belief under penalties of perjury: 1. I am a member of the firm of FULLERTON BECK, LLP, attorneys for third third- party defendant, B&G ELECTRICAL CONTRACTORS (hereinafter “B&G”), and as such am fully familiar with the facts and circumstances of the instant matter pursuant to a review of the file maintained by this office. 2. The within affirmation is submitted in partial Opposition to Plaintiff’s cross- motion, seeking an Order for summary judgment on his Labor Law §240(1) and 241(6) claims against Defendants, NYY STEAK MANHATTAN, LLC (hereinafter “NYY STEAK”), PLAZA CONSTRUCTION CORP (hereinafter “PLAZA”) and BARING INDUSTRIES, INC. (hereinafter “BARING”). PRELIMINARY STATEMENT 3. As explained more fully below, Plaintiff’s accident did not arise out of an elevation- related hazard such that the accident is within the purview of Labor Law §240(1). At the time of the accident, Plaintiff was walking backwards while transporting a piece of equipment in a dolly when he tripped over a piece of wood debris, which then caused him to land on an elevator pit located at the same level where he was walking. Thus, there is no evidence that his injuries resulted either from a fall from a height or from being struck by an object falling from a height. Further, none of the protective devices identified in the statute could have prevented the accident. 4. With regards to Plaintiff’s claims under Labor Law §241(6) concerning NYCRR §23-1.30 which covers illumination, it is B&G’s position that whether the lighting was inadequate, which is hereby denied, is irrelevant here. Plaintiff was unable to see where he was going not 2 of 11 FILED: NEW YORK COUNTY CLERK 04/28/2023 10/09/2019 08:01 11:01 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 596 452 RECEIVED NYSCEF: 04/28/2023 10/09/2019 because of the lighting condition, but because he was walking backwards while transporting a huge piece of equipment. Thus, the lighting was not the proximate cause of Plaintiff’s accident. Further, it is undisputed that B&G installed lighting in the area and Plaintiff offers nothing more than vague testimony regarding the lighting condition which is insufficient to establish prima facie entitlement to summary judgment. 5. As such, Plaintiff’s motion seeking summary judgment on his Labor Law §240(1) claim and on his §241(6) based on NYCRR §23-1.30 must be denied. ARGUMENT POINT I SUMMARY JUDGMENT STANDARD 6. Summary judgment should be granted where a party has tendered evidentiary proof in admissible form to demonstrate the absence of any material issues of fact. See Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S. 2d 923 (1986); Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 487 N.Y.S. 2d 316 (1985). As stated by the Court of Appeals, “when there is no genuine issue to be resolved at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the Trial Calendar and thus deny to other litigants the right to have their claims promptly adjudicated.” Andre v. Pomeroy, 35 N.Y. 2d 361, 364, 362 N.Y.S.2d 131, 133 (1974). 7. It is well established that to defeat a motion for summary judgment, a triable issue of fact must be shown to be “real, not feigned, since a sham or frivolous issue will not preclude summary relief.” Fender v. Prescott, 101 A.D.2d 418, 425, 476 N.Y.S. 2d 128, 133 (1st Dept. 1984), aff’d, 64 N.Y.2d 1977. It has been stated, “mere surmise, suspicion and accusation are insufficient to defeat summary judgment.” Holy Spirit Assn. v. Harper and Row, 101 Misc.2d 30, 3 of 11 FILED: NEW YORK COUNTY CLERK 04/28/2023 10/09/2019 08:01 11:01 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 596 452 RECEIVED NYSCEF: 04/28/2023 10/09/2019 35, 420 N.Y.S.2d 56, 59 (1979); Shaw v. Time-Life Records, 38 N.Y.2d 201, 207, 379 N.Y.S.2d 390, 396 (1975). 8. As outlined more fully below, Plaintiff has failed to establish prima facie entitlement to summary judgment on his Labor Law §240(1) claim where there is no evidence that his injuries resulted either from a fall from a height or from being struck by an object falling from a height. Plaintiff has also failed to establish prima facie entitlement to summary judgment on his Labor Law §241(6) claim predicated upon NYCRR §23-1.30, where there is no evidence that the lighting was the proximate cause of the accident or that it was otherwise inadequate. POINT II PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT MUST BE DENIED AS PLAINTIFF’S ACCIDENT IS NOT A GRAVITY-RELATED ACCIDENT AND NOT COVERED UNDER LABOR LAW §240(1) 9. To sustain a cause of action under Labor Law §240(1) a plaintiff must prove that Labor Law §240(1) was violated and that the violation was the proximate cause of his injuries. Blake v. Neighborhood Housing Services of New York, 1 N.Y.3d 280, 771 N.Y.S.2d 484 (2003). It is well settled that Labor Law §240(1) protects workers against “‘special hazards’ that arise when the work site is either elevated or positioned below the level where ‘materials or load [are] hoisted or secured,’ and the hazards are “limited to such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured.” (Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 (1993), quoting Rocovich v. Consol. Edison Co., 78 NY2d 509 [1991]). The “special hazards… do not encompass any and all perils that may be connected in some tangential way with the effects of gravity.” (Ross, supra at 501 [emphasis added]). 4 of 11 FILED: NEW YORK COUNTY CLERK 04/28/2023 10/09/2019 08:01 11:01 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 596 452 RECEIVED NYSCEF: 04/28/2023 10/09/2019 10. Labor Law § 240(1) “was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person.” (Runner v New York Stock Exch., Inc., 13 NY3d 599, 895 N.Y.S.2d 279 [2009], quoting Ross, supra; Naughton v City of New York, 94 AD3d 1, 940 N.Y.S.2d 21 [1st Dept 2012]). 11. Plaintiff’s cross-motion must be denied as Plaintiff has not and cannot show he was exposed to a gravity-related risk within the purview of Section 240(1) of the Labor Law. Here, the evidence is clear that the proximate cause of the accident was the debris on which Plaintiff tripped and the method in which Plaintiff was transporting materials into the job site, i.e. while walking backwards. 12. Plaintiff tripped over a piece of wood debris and landed in an elevator pit located at the same level where he was walking at the time of the accident. Thus, there is no indication that his injuries resulted either from a fall from a height or from being struck by an object falling from a height. (See e.g., German v Antonio Dev., LLC, 128 AD3d 579 [1st Dept 2015] [accident not covered by §240(1) as plaintiff “not struck by any object, elevated or otherwise; rather, he slipped on a wet steel grate, and thus, the impetus for his fall was his slipping, not the direct consequence of gravity”]; Mitchell v County of Jefferson, 226 AD2d 1109 [4th Dept 1996], lv denied 91 NY2d 801, 669 N.E.2d 533, 666 N.Y.S.2d 563 [1997] [injury not related to effects of gravity where plaintiff fell three to four feet after stepping on and falling off of pile of debris]). 13. In a matter similar to the present case, the Court of Appeals held that a worker’s slip and fall into a trough was not covered by the Labor Law §240, as the worker’s proximity to the trough did not entail “an elevation-related risk which called for any of the protective devices 5 of 11 FILED: NEW YORK COUNTY CLERK 04/28/2023 10/09/2019 08:01 11:01 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 596 452 RECEIVED NYSCEF: 04/28/2023 10/09/2019 of the type listed in” the statute. (Rocovich, supra at 514-515; see also Torkel v NYU Hosps. Ctr., 63 AD3d 587, 883 N.Y.S.2d 8 [1st Dept 2009] ["hazards that warrant protection contemplated by the statute are those related to the effects of gravity where protective devices are called for… because of a difference between the elevation level of the required work and a lower level"]). Thus, the circumstances surrounding Plaintiff’s work did not subject him to the sort of risk which section 240(1) was intended to obviate. 14. To the extent Plaintiff landing in the pit can be considered a “fall”, Labor Law §240 remains inapplicable as plaintiff’s injuries were the result of his trip and fall over debris and not the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential. (See Wilinski v. 334 East 92nd Housing Development Fund Corp., 18 N.Y.3d 1, 935 N.Y.S.2d 551 [2011]). Plaintiff’s accident was caused by debris left on his path, which is a hazard unassociated with performing elevation-related work. 15. In Favreau v. Barnett & Barnett, LLC, 47 A.D.3d 996, 849 N.Y.S.2d 691 (3d Dept. 2008), plaintiff sustained an injury while walking backward up a pitched roof carrying a piece of sheet rock and steps on a piece of ice resulting in a slip and fall onto the same spot of the roof. The Court held that the incident should be viewed no differently than any other slip-and-fall case and therefore had nothing to do with an elevation differential. The Court in Favreau held that the accident could have occurred in the same fashion in a non-elevated setting, as such, same should be treated as a slip and fall case caused by icy conditions not by an elevation hazard. The same analysis applies here, Mr. McGonigal’s accident could have and would have happened regardless of the pit, as his accident was proximately caused by the debris left in his path in which he tripped. 6 of 11 FILED: NEW YORK COUNTY CLERK 04/28/2023 10/09/2019 08:01 11:01 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 596 452 RECEIVED NYSCEF: 04/28/2023 10/09/2019 16. Based on the foregoing, Plaintiff’s cross-motion must be denied as it is clear that Plaintiff’s accident did not arise out of a gravity-related hazard, and was in fact merely a trip and fall over construction debris. POINT III PLAINTIFF’S CROSS-MOTION SEEKING JUDGMENT UNDER LABOR LAW §241(6) PURSUANT TO INDUSTRIAL CODE NYCRR §23-1.30 MUST BE DENIED AS THE LIGHTING CONDITION WAS NOT THE PROXIMATE CAUSE OF HIS ACCIDENT 17. Under New York Law, “in order [for a plaintiff] to establish a Labor Law §241(6) claim, a plaintiff is required to plead and prove a specific violation of the Industrial Code.” Kowalik v. Lipschutz, 81 A.D.3d 782, 783, 917 N.Y.S.2d 251, 252 (2d Dept. 2011) (“A plaintiff’s failure to identify a violation of any specific provision of the State Industrial Code precludes liability under Labor Law § 241(6)”) citing, Ross, supra. 18. The Court of Appeals has held that “in order to support a claim under Section 241(6), the particular provision relied upon by a plaintiff must mandate compliance with concrete specifications and not simply declare general safety standards or reiterate common-law principles.” Misicki v. Caradonna, 12 N.Y.3d 511, 515, 882 N.Y.S.2d 375 (2009). Furthermore, “the interpretation of an Industrial Code regulation and the determination as to whether a particular condition is within the scope of the regulation generally present questions of law for the court.” Spence v. Island Estates at Mt. Sinai II, LLC, 79 A.D.3d 936, 938, 914 N.Y.S.2d 203, 206 (2d Dept. 2010). 19. 12 NYCRR §23-1.30 requires illumination of at least 10-foot candles in any area where persons are required to work. It is undisputed that B&G installed temporary lighting at the project, as testified by Mr. Chin (CHIN transcript at p. 43) and Mr. Usher (USHER transcript at p. 140). It was conceded by PLAZA that B&G installed temporary lighting in the area of the elevator 7 of 11 FILED: NEW YORK COUNTY CLERK 04/28/2023 10/09/2019 08:01 11:01 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 596 452 RECEIVED NYSCEF: 04/28/2023 10/09/2019 pit where Plaintiff’s alleged accident occurred (USHER transcript at p. 140). It was also conceded by PLAZA that Mr. Usher found the lighting to be adequate (USHER transcript at p. 140). It is further undisputed that neither B&G nor PLAZA ever receive complaints about the lighting conditions in the area where plaintiff fell at any time prior to, or after his accident (See CHIN transcript at pp. 24-25 and USHER transcript at p. 146). More importantly, it is undisputed that B&G installed lighting in the area and Plaintiff offers no evidence to the contrary. Mr. Chin described the temporary lighting as follows: Q. Could you describe the temporary lighting that B&G installed at the Yankee Steakhouse job? A. Every six feet there was a light Q. Would you consider it string lighting? A. Yeah, string. (CHIN transcript at p. 22, l. 8-15) Q. Could you describe – I know you said the bulbs were six feet apart. Do you know the wattage on the bulbs? Were they encased in any encasement? A. 100 watt bulbs and they had a plastic cage, yellow. (CHIN transcript at p. 25, l. 13-18) 20. In order to establish a violation of 12 NYCRR §23-1.30, a plaintiff must offer more than vague evidence that the lighting in the area where he had his accident was dark, poor, or a little dark. Cary v. Port Authority of New York and New Jersey, 32 AD3d 732, 821 N.Y.S.2d 178 (1st Dept. 2006); Cahill v. Triborough Bridge & Tunnel Authority, 31 AD3d 347, 819 N.Y.S.2d 732 (1st Dept. 2006); Herman v. St. John’s Episcopal Hospital, 242 AD2d 316, 678 N.Y.S.2d 635 (2d Dept. 1997). Instead, the evidence proffered to demonstrate inadequate lighting falling below the standard prescribed by the regulation must be of the kind which conclusively establishes an absence of light. Dipalma v. Metro. Transp. Auth., 20 Misc. 3d 1128(a), 1128A, 872 N.Y.S.2d 690 (Bronx County 2008). 8 of 11 FILED: NEW YORK COUNTY CLERK 04/28/2023 10/09/2019 08:01 11:01 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 596 452 RECEIVED NYSCEF: 04/28/2023 10/09/2019 21. Here, Plaintiff offers no evidence of the amount of lighting in the area where he fell and other than vague conditions, which do not rise to the level of establishing prima facie entitlement to summary judgment. 22. Further, it is clear from Plaintiff’s testimony that his accident was caused solely by the debris left in the area by another trade and by the method in which he was transporting materials into the job site, i.e. while walking backwards. Whether the lighting was inadequate, which is hereby denied, is irrelevant here as Plaintiff was unable to see where he was going because he was walking backwards when he tripped on a piece of wooden debris. Plaintiff has relied exclusively on testimony that merely describes the lighting condition in the area and speculates without explaining how the lighting contributed to the accident. 23. The First Department caselaw is consistent in holding that mere words describing lighting conditions as “poor” or “dark” are insufficient to establish that the lighting was statutorily inadequate. For example, in Cahill, supra, the Court held that plaintiff’s vague testimony that the lighting was “poor” and the basement where he fell was “dark” was insufficient to create an inference that the amount of lighting fell below the specific statutory standard. In Daniel v. 384 Bridge St. LLC, 2016 N.Y. Misc. LEXIS 2971 (Sup. Ct., New York County, 2013), the Court found plaintiff’s testimony that the area was “dark” or “a little dark”, and that the lighting “was poor that morning” and that the job had “a lighting problem” were mere conclusory allegations insufficient to create an inference that the amount of lighting fell below the specific statutory standard. 24. The Court in Daniel found that plaintiff’s own testimony that temporary lighting was installed in the area was contradictory with his testimony that there was a lighting problem at the jobsite. (See also Carty, supra; Herman v St. John's Episcopal Hosp., 242 AD2d 316, [2nd Dept. 9 of 11 FILED: NEW YORK COUNTY CLERK 04/28/2023 10/09/2019 08:01 11:01 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 596 452 RECEIVED NYSCEF: 04/28/2023 10/09/2019 1997]). Here, as in Daniel, while the Plaintiff described the lighting in the area as “wasn’t very good down there” it is clear that his accident occurred because he tripped over a piece of debris, which he did not observe because he was walking backwards at the time of his accident. 25. Sarmiento v. C&E Assoc., 40 A.D.3d 524 (1st Dept. 2004) is on point here. In Sarmiento, plaintiff testified he fell on water on a staircase, while also claiming and submitting an affidavit from an expert engineer that the lighting in the area was inadequate. The Court found that whether the lighting was adequate was irrelevant as the water, and not the lighting, was the proximate cause of plaintiff’s accident. Here, as in Sarmiento, whether the lighting was adequate or not is irrelevant. Plaintiff’s accident was caused by debris left in the area, which Plaintiff was unable to observe due to the fact that he was walking backwards. In Sarmiento, the plaintiff used an expert to support his claim about insufficient lighting, and still the Court found that the adequacy of the lighting was not the cause of the accident but rather the water he slipped on. In the present matter, Plaintiff does not have an expert to support his allegation that the light was somehow inadequate or below the statutory standard, making his arguments even less persuasive than the plaintiff in Sarmiento. 26. Plaintiff has merely pointed to testimony describing a condition in the area and not that the lighting condition was the proximate cause of the accident, which is a necessary element to establish liability. See Dorman v. 19-20 Indus. City Assocs., Inc., 4 Misc. 3d 1007(A) (Sup. Ct., Kings County, 2000). 27. The only conclusion that can be drawn from the testimony of all parties is that Plaintiff fell as a result of a wooden debris left on the floor, which he was unable to see because his work required him to walk backwards preventing him from observing the dangerous condition in his path. The fact is, the area where the alleged accident occurred, was sufficiently lighted, 10 of 11 FILED: NEW YORK COUNTY CLERK 04/28/2023 10/09/2019 08:01 11:01 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 596 452 RECEIVED NYSCEF: 04/28/2023 10/09/2019 lighting which was approved by PLAZA, and there was never any complaint made to B&G or PLAZA about insufficient or inadequate lighting, which completely voids any arguments by the parties that the lighting somehow caused the accident. CONCLUSION 28. Based on the evidence in the record, B&G respectfully submit that Plaintiff has failed to establish prima facie showing of entitlement to summary judgment on his Labor Law §§ 240(1) and 241(6) claim predicated upon NYCRR §23-1.30. Plaintiff accident did not arise out of an elevation-related hazard such that the accident is within the purview of Labor Law §240(1), as there is no evidence that his injuries resulted either from a fall from a height or from being struck by an object falling from a height. Further, the evidence shows that the lighting condition was not the proximate cause of the accident and in any event, Plaintiff offers nothing more than vague testimony regarding the lighting condition which is insufficient to establish prima facie entitlement to summary judgment. In light of the foregoing, Plaintiff’s motion for summary judgment on his Labor Law §§ 240(1) and 241(6) claim predicated upon NYCRR §23-1.30 must be denied, and should be dismissed WHEREFORE, it is respectfully requested that Plaintiff’s motion be denied with respect to that portion seeking summary judgment his Labor Law 240(1) claim and on his §241(6) based on NYCRR §23-1.30, and for any further relief this court deems appropriate. Dated: White Plains, New York October 9, 2019 Eileen R. Fullerton, Esq. 11 of 11 FILED: NEW YORK COUNTY CLERK 04/28/2023 10/11/2019 08:01 10:02 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 596 459 RECEIVED NYSCEF: 04/28/2023 10/11/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------- --------------------------------------------X KEVIN McGONIGAL, Motion Sequence No. 007 Plaintiff, Index No. 158327/13 -against - AFFIRMATION NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION IN PARTIAL CORP. and BARING INDUSTRIES, INC., OPPOSITION Defendants. Hon. Margaret Chan __-----_____________--------------------------------------------------------X PLAZA CONSTRUCTION CORP., Return Date: 10/22/19 Third-Party Plaintiff, -against - TP Index No.: BARING INDUSTRIES, INC., 595146/14 Third-Party Defendant. --------------------------------------------------- ------------X BARING INDUSTRIES, INC., Second Third-Party Plaintiff, -against - Second TP Index No.: DAY & NITE REFRIGERATION CORP. and KIMCO 595130/15 REFRIGERATION CORP., Second Third-Party Defendants. --------------------------------------------------------------------------------X NYY STEAK MANHATTAN, LLC & PLAZA CONSTRUCTION LLC f/k/a PLAZA CONSTRUCTION CORP., Third Third-Party Plaintiffs, -against- B&G ELECTRICAL CONTRACTORS, ESS & VEE ACOUSTICAL CONTRACTORS, INC. and BARING INDUSTRIES, INC., Third Third-Party Defendants. _______________--------..-----------------------------------X 1 of 3 FILED: NEW YORK COUNTY CLERK 04/28/2023 10/11/2019 08:01 10:02 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 596 459 RECEIVED NYSCEF: 04/28/2023 10/11/2019 DAVID A. LORE, an attorney duly admitted to the practice of law before the Courts of the State of New York, hereby affirms the following under the penalty of perjury and pursuant to CPLR §2106: 1. I am a member of the law firm MILBER MAKRIS PLOUSADIS & SEIDEN, LLP, attorneys for Second Third-Party Defendants, DAY & NITE REFRIGERATION CORP. and K.I.M. CO. REFRIGERATION CORP. s/h/a KIMCO REFRIGERATION CORP. (collectively referred to as "Day & Nite"). As such, I am familiar with the facts and circumstances of this matter based upon a review of the file maintained by this office. 2. I respectfully submit this affirmation in partial opposition to the judgment cross- summary motion made on behalf of plaintiff KEVIN MCGONIGAL to the extent that it seeks summary judgment pursuant to the Labor Law §240(1) cause of action as against the direct defendants. It is noted that plaintiff does not have any claims as against Day & Nite. Nevertheless, Day & Nite, as a third-party defendant, has the same rights adverse to plaintiff as do the direct defendants/third-party plaintiffs, and has standing to oppose plaintiff's claims on that basis. See, CPLR §1008; Prigent v. Friedman, M.S., 264 A.D.2d 568, (13t 695 N.Y.S.2d 79 Dept. 1999); De Pan v. First Nat. Bank of Glens Falls, 98 A.D.2d 885, 470 N.Y.S.2d 869 (3d Dept. 1983). 3. As for the §240(1) claim, Day & Nite agrees with and respectfully adopts and incorporates by reference herein the arguments raised by counsel for Third Third-Party Defendant B&G ELECTRICAL CONTRACTORS in B&G's opposition papers to plaintiff's cross-motion. At the very least, triable issues of fact exist as to whether the elevator pit is the type of elevation differential that the statute is intended to cover. 4. As for the §241(6) claim, it is noted, arguendo, that even if there is a finding of liability under the statute, none of the predicate Industrial Code provisions alleged to have been violated in plaintiff's motion papers are applicable to Day & Nite's responsibilities at the site. Any responsibilities delineated by those Code provisions fell upon other contractors. It is undisputed that Day & Nite was not openings" responsible for: the guarding of alleged "hazardous (§23-1.7(b)), the requirements for the 2 2 of 3 FILED: NEW YORK COUNTY CLERK 04/28/2023 10/11/2019 08:01 10:02 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 596 459 RECEIVED NYSCEF: 04/28/2023 10/11/2019 of railings (§23-1.15), railings for scaffolds (§23-5.1(j)), hazards and the assembly safety safety tripping accumulation of dirt and debris (§23-1.7(e)), and §23-1.30 (proper illumination). 5. Finally, the Court is respectfully referred to Day & Nite's own motion papers, whereiñ Day & Nite has moved for summary judgment and the dismissal of the Second Third-Party Complaint primarily on the basis of the forum selection clause in its contract with Baring Industries, for a further recitation of the facts and circumstances of the project and the alleged accident. Day & Nite maintains that the Second Third-Party Complaint, and any and all claims as against Day & Nite, must be dismissed in their entirety as a matter of law. WHEREFORE, it is respectfully requested that the Court issue an Order: A) denying plaintiff's cross-motion to the extent indicated above, and B) awarding such other and further relief as the Court deems just and proper. Dated: Woodbury, New York October 11, 2019 bavid A. LoRe, Esq. 3 3 of 3 FILED: NEW YORK COUNTY CLERK 04/28/2023 10/11/2019 08:01 10:02 PM AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 596 460 RECEIVED NYSCEF: 04/28/2023 10/11/2019 AFFIDAVIT OF SERVICE STATE OF NEW YORK ) ) ss.: COUNTY OF NASSAU ) LAURA L. NORMANDIN, being duly sworn, deposes and says, that deponent is not a party to the action, is over 18 years of age and resides in Suffolk County, New York. 11th That on the day of October, 2019, deponent served the within AFFIRMATION IN PARTIAL OPPOSITIONupon: Nikolas E. Diamantis, Esq. SMITH MAZURE DIRECTOR WILKINS LAW OFFICES OF CHARLES J. SIEGEL YOUNG & YAGERMAN, P.C. Attorneys for Defendant/Third-Party Attorneys for Third Third-Party Defendant Defendant/ ESS & VEE ACOUSTICAL Second Third-Party Plaintiff CONTRACTORS, INC. BA