Preview
FILED: RICHMOND COUNTY CLERK 02/20/2024 04:56 PM INDEX NO. 151640/2021
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EXHIBIT “B”
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JUDGE’S CHARGES AFTER TRIAL
PJI 1:20 Introduction
Members of the jury, we now come to that portion of the trial when you are
instructed on the law that applies to the case, after which you will retire for your
deliberations. You have heard and seen all the evidence introduced by the parties
and through arguments of their attorneys you have learned the conclusions each
party believes should be drawn from the admitted evidence.
PJI 1 : 21 Review Principles Stated
You will recall that at the beginning of the trial I stated certain principles.
Briefly, they were that you are bound to accept the rules of law as I give them to you
whether or not you agree with them . You are not to ask anyone else about the law.
You must not consider or accept any advice about the law from anyone other than
me.
During this trial, I have ruled on the admission of evidence and on motions
made with respect to the applicable law. You must not conclude from any ruling I
have made, any questions I might have asked or anything I have said that 1 favor any
party to this lawsuit.
Your view of the evidence and your decisions on the issues of fact will decide
this case. During the trial , I may have sustained objections to questions without
allowing the witness to answer or where an answer was made, instructed that it be
removed or stricken from the record, and that you disregard it and dismiss it from
your minds. In reaching your decisions, you may not draw any inference or
conclusion from an unanswered question, nor may you consider testimony that has
been removed or stricken from the record. The law requires that your decisions be
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made solely on the admitted evidence. Anything I excluded from your consideration
was excluded because it was not legally admissible.
In deciding how much weight, if any, you choose to give to the testimony of
any particular witness, there is no magical formula that can be used. The tests used
in your everyday affairs to decide the reliability or unreliability of statements made
to you by others are the tests you will apply in your deliberations. In deciding how
much weight, if any, to give to a witness' testimony, you may consider the interest
or lack of interest of that witness in the outcome of this case, the bias or prejudice of
the witness, if there be any, the age, the appearance, the manner in which the witness
gave testimony on the stand, the opportunity and ability the witness had to observe
the facts about which they testified, and the probability or improbability of the
witness' testimony when considered in the light of all the other evidence in the case.
If it appears there is a conflict in the evidence, you will have to consider
whether and to what extent the apparent conflict can be reconciled by fitting the
different versions together; otherwise, you will have to decide which of the
conflicting versions, if any, you will accept.
By the processes I have just described and any further instructions I may give,
you, as the sole judges of the facts, decide which of the witnesses you believe, what
portion of their testimony you accept and what weight you give to it.
PM 1:22 Falsus in Uno
If you find that any witness has willfully testified falsely as to any important
matter, the law permits you to disregard completely the entire testimony of that
witness upon the principle that one who testifies falsely about one important matter
is likely to testify falsely about everything. You are not required, however, to
consider such a witness as totally unbelievable. You may accept so much of the
witness' testimony as you deem true and disregard what you deem is false.
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PR 1:60 General Instruction—Burden of Proof—When Burden Differs on
Different Issues
To say that a party has the burden of proof on a particular issue means that,
considering all the evidence in the case, the party's claim on that issue must be
established by a fair preponderance of the credible evidence. The credible evidence
means the testimony or exhibits that you find worthy of belief. A preponderance
means the greater part of the evidence. That does not mean the greater number of
witnesses, or the greater length of time taken by either side. The phrase
preponderance of the evidence refers to the quality of the evidence, its weight, and
the effect that it has on your minds. In order for a party to prevail on an issue on
which he or she has the burden of proof, the evidence that supports their claim on
that issue must appeal to you as more nearly representing what happened than the
evidence opposed to it. If it does not or if it weighs so evenly that you are unable to
say that there is a preponderance on either side, you must decide the question against
the party who has the burden of proof and in favor of the opposing party. In this
case the Plaintiff and Defendants both have the burden of proof regarding the claims
they make against each other, the specifics of which I will explain to you shortly.
P.JI 1:24 Return to Courtroom
If, during your deliberations, your recollection of any part of the testimony
should fail, or if you have any question about my instructions to you on the law, then
you have the right to return to the courtroom for the purpose of having the testimony
read to you or your question addressed.
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PA 1:25 Consider Only Testimony and Exhibits
In deciding this case, you may consider only the exhibits that were admitted
in evidence and the testimony of the witnesses as you have heard it in this courtroom
or as was read to you or shown to you during the trial. Under our rules of practice
an examination before trial or testimony that was recorded before the trial was taken
under oath and is entitled to equal consideration by you even though it was taken
before the trial and outside this courtroom. However, arguments, remarks, and
summations of the attorneys are not evidence, nor is anything I now say or may have
said with regard to the facts, evidence. As I instructed you previously, it is important
to remember that you may not use any interne services or social media, including
for example, Google, Facebook, Twitter/X, LinkedIn, Instagram, TikTok, or any
other media platforms, to discuss or give or get information about the case or its
participants or to research topics concerning the trial. Electronic devices including
any cell phones, smartphones, laptops, or any other personal electronic devices must
be turned off while you are deliberating. Allowing outside information which may
be incomplete, inaccurate, or otherwise unreliable to affect your judgment is unfair
and prejudicial to the parties and could require this case to be retried.
PJI 1:25A Juror's Use of Professional Expertise
Although as jurors you are encouraged to use all of your life experiences in
analyzing testimony and other evidence and reaching a fair verdict, you may not
communicate any professional expertise you might have or other facts not in
evidence to the other jurors. You must base your discussions and decisions solely on
the evidence admitted during the trial and that evidence alone. You may not consider
or speculate on matters not in evidence or matters outside the case.
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PM 1:25C General Instruction—Interested Witness—Generally
The plaintiff and an employee of a defendant testified before you. As parties
to the action, or employees of a party, they are interested witnesses, meaning they
have an interest in the outcome of the case that may have affected their testimony.
An interested witness is not necessarily less believable than a disinterested
witness. The fact that they are interested in the outcome of the case does not mean
that they have not told the truth. It is for you to decide from the demeanor of the
witness on the stand and such other tests as your experience dictates whether or not
the testimony has been influenced, intentionally or unintentionally, by their interest.
You may reject the testimony if, after careful consideration of all the evidence in the
case, including the cross-examination of the witness, you decide you do not believe
the testimony or you find it is not reliable. On the other hand, you are not required
to reject the testimony of such a witness and may accept all or such part of their
testimony as you find believable and reliable and reject such part as you find
unworthy of acceptance. The testimony is entitled to such weight as you decide it is
worth.
PA 1:92 General Instruction—Interested Witness—Employee of Party
The fact that a witness was and still is employed by a Defendant and the
testimony you have heard of this witness' relationship with their employer may be
considered by you in deciding whether the testimony of that witness is in any way
influenced by the employment relationship with the Defendant.
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PH 1:26 General Instruction—Special Verdicts & General Verdicts Supported
by Written Interrogatories
This case will be decided on the basis of answers you give to written questions
that will be submitted to you. Each of the questions calls for a "Yes" or "No" answer,
or some percentage. While it is important that the views of all jurors be considered,
five of the six of you must agree on the answer to any question, but the same five
persons need not agree on all the answers. When five of you have agreed on any
answer, the foreperson of the jury will write the answer in the space provided for
each answer and each of you will sign in the appropriate place to indicate your
agreement or disagreement. Each question will be followed by an instruction as to
how you will proceed based upon your answer to that question.
If you disagree with an answer that five jurors have agreed upon, you should
not stop deliberating and you should not stop voting on the rest of the questions that
need to be answered. In other words, you should continue participating in the
deliberations and voting on all questions that require answers.
When you have answered all the questions that require answers, report to the
court.
PJI 1:26A Five-Sixths Verdict—General Verdict
While it is important that the views of all jurors be considered, a verdict of
five of the six members of the jury will be sufficient under the law. When five of
you agree on a verdict, you may report your verdict to the court.
PJI 1:27 Exclude Sympathy
In reaching your verdict you are not to be affected by sympathy for any of the
parties, what the reaction of the parties or of the public to your verdict may be,
whether it will please or displease anyone, be popular or unpopular or, indeed, any
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consideration outside the case as it has been presented to you in this courtroom. Your
verdict will be determined by the conclusions you reach, no matter whom the verdict
helps or hurts.
PR 1:27A A Fair Juror and Absence of Implicit or Conscious Bias
You may recall that at the beginning of the trial I instructed you on the concept
of a fair juror. As a fair and impartial juror, you must guard against the application
of any stereotypes or attitudes about people or groups that might lead you to render
a biased decision based on those stereotypes or attitudes. Keep in mind that bias,
based upon stereotypes or attitudes, is not always obvious or conscious. In assessing
the testimony and other evidence in the case, you must not be swayed by those
stereotypes or attitudes.
PM 1:28 Jury Function
As jurors, your duty is to decide, from all the testimony that you have heard
and the exhibits that have been admitted into evidence, what the facts are. You are
the sole and exclusive judges of the facts. Neither I nor anyone else can take over
your responsibility to decide the facts of this case, which you will do by the answers
you provide on the verdict sheet. As sole judges of the facts, you must decide which
of the witnesses you believe, what portion of their testimony you accept, and what
weight you give to it.
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RR 1:7A Impartiality
A lawsuit is a civilized method of determining differences between people. It
is basic to the administration of any system of justice that the decision on both the
law and the facts be made fairly and honestly. You as the jurors and I as the court
have a heavy responsibility—to assure that a just result is reached in deciding the
differences between the plaintiff and the defendant in this case.
PJI 1:39 No Inference From Rulings
In the course of the trial, it has been necessary for me to rule on the admission
of evidence and on motions made with respect to the applicable law. You must not
conclude from any such ruling I have made or from any questions I may have asked
or from anything that I have said during the course of the trial or from these
instructions or the manner in which they are given that I favor any party to this
lawsuit. It is your recollection of evidence and your decision on the issues of fact
which will decide this case.
PH 1:7 Consider Only Competent Evidence
At times during the trial, I have sustained objections to questions asked
without allowing the witness to answer or where an answer was made, instructed
that it be stricken from the record and that you disregard it and dismiss it from your
minds. You may not draw any inference or conclusions from an unanswered
question, nor may you consider testimony which has been stricken from the record
in reaching your decision. The law requires that your decision be made solely upon
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the evidence before you. Such items as I have excluded from your consideration
were excluded because they were not legally admissible.
PR 1:8 Weighing Testimony
The law does not, however, require you to accept all of the evidence I admit.
In deciding what evidence you will accept you must make your own evaluation of
the testimony given by each of the witnesses, and decide how much weight you
choose to give to that testimony. The testimony of a witness may not conform to the
facts as they occurred because he or she is intentionally lying, because the witness
did not accurately see or hear what he or she is testifying about, because the witness'
recollection is faulty, or because the witness has not expressed themselves clearly in
testifying. There is no magical formula by which you evaluate testimony. You bring
with you to this courtroom all of the experience and background of your lives. In
your everyday affairs you decide for yourselves the reliability or unreliability of
things people tell you. The same tests that you use in your everyday dealings are the
tests which you apply in your deliberations. The interest or lack of interest of any
witness in the outcome of this case, the bias or prejudice of a witness, if there be any,
the age, the appearance, the manner in which the witness gives testimony on the
stand, the opportunity that the witness had to observe the facts about which he or she
testifies, the probability or improbability of the witness' testimony when considered
in the light of all of the other evidence in the case, are all items to be considered by
you in deciding how much weight, if any, you will give to that witness' testimony.
If it appears that there is a conflict in the evidence, you will have to consider whether
the apparent conflict can be reconciled by fitting the different versions together. If,
however, that is not possible, you will have to decide which of the conflicting
versions you will accept.
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PA 1:70 General Instruction—Direct and Circumstantial Evidence
Facts must be proved by evidence. Evidence includes the testimony of a
witness concerning what the witness saw, heard or did. Evidence also includes
writings, photographs, or other physical objects which may be considered as proof
of a fact. Evidence can either be direct or circumstantial.
Direct evidence is evidence of what a witness saw, heard, or did which, if
believed by you, proves a fact. For example, suppose a fact in dispute is whether I
knocked over this water glass near the witness chair. If someone testifies that they
saw me knock over the glass, that is direct evidence that I knocked over the glass.
Circumstantial evidence is evidence of a fact that does not directly prove a fact in
dispute but which permits a reasonable inference or conclusion that the fact exists.
For example, a witness testifies that they saw this water glass on the bench. The
witness states that, while they was looking the other way, they heard the breaking of
glass, looked up, and saw me wiping water from my clothes and from the papers on
the bench. This testimony is not direct evidence that I knocked over the glass; it is
circumstantial evidence from which you could reasonably infer that I knocked over
the glass.
Those facts that form the basis of an inference must be proved and the
inference to be drawn must be one that reasonably may be drawn. In the example,
even though the witness did not see me knock over the glass, if you believe their
testimony, you could conclude that I did. Therefore, the circumstantial evidence, if
accepted by you, allows you to conclude that the fact in dispute has been proved.
In reaching your conclusion you may not guess or speculate. Suppose, for
example, the witness testifies that the water glass was located equally distant from
the court clerk and me. The witness states they heard the breaking of glass and
looked up to see both the court clerk and me brushing water from our clothes. If you
believe that testimony, you still could not decide on that evidence alone who
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knocked over the water glass. Where these are the only proved facts, it only would
be a guess as to who did it. However, if the witness also testifies that she heard the
court clerk say "I am sorry," then this additional evidence would allow you to decide
who knocked over the water glass.
Facts may be proved either by direct or circumstantial evidence or by a
combination of both. You may give circumstantial evidence less weight, more
weight, or the same weight as direct evidence.
NI 1:90 General Instruction—Expert Witness
You will recall that the following witnesses testified concerning their
qualifications:
The Plaintiffs Expert: Scott Silberman — Expert in the Field of Civil Engineering
and How it Relates to Construction Site Safety.
Defendant's Expert: Bernard Lorenz — Expert in the Field of Civil Engineering and
How it Relates to Construction Site Safety
These witnesses gave their opinions concerning issues in this case. When a
case involves a matter of science or art or requires special knowledge or skill that
most people do not have, a qualified witness is permitted to state their opinion for
the information of the court and jury. The opinions stated by these witnesses were
based on particular facts, as they obtained knowledge of them and testified about
them or as the attorneys who questioned them asked them to assume. You may reject
any opinion if you find the facts to be different from the facts that formed the basis
for the opinion. You may also reject an opinion if, after careful consideration of all
the evidence in the case, including the cross-examination of the witnesses, you
decide that an opinion is not convincing. In other words, you are not required to
accept any opinion to the exclusion of the facts and circumstances disclosed by other
evidence. Opinion testimony should be evaluated in the same way as the testimony
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of any other witness. It is given to assist you in reaching a proper conclusion; it is
entitled to such weight as you find the witness's qualifications in the field warrant
and must be considered by you, but is not controlling upon your judgment.
Equality of litigants — Individuals and Corporations (Requested by Defense)
You must consider and decide this case as an action between persons
of equal standing in the community and of equal worth. Corporations
have the same rights to a fair trial at your hands as do private
individuals. All parties stand equal before the law and are to be dealt with as equals
in a court of justice.
PA 2:10 Common Law Standard of Care—Negligence Defined—Generally
Negligence is lack of ordinary care. It is a failure to use that degree of care
that a reasonably prudent person would have used under the same circumstances.
Negligence may arise from doing an act that a reasonably prudent person would not
have done under the same circumstances, or, on the other hand, from failing to do
an act that a reasonably prudent person would have done under the same
circumstances.
PH 2:12 Common Law Standard of Care—Foreseeability—Generally
Negligence requires both a reasonably foreseeable danger of injury to another
and conduct that is unreasonable in proportion to that danger. A person is only
responsible for the results of their conduct if the risk of injury is reasonably
foreseeable. The exact occurrence or exact injury does not have to be foreseeable;
but injury as a result of negligent conduct must be not merely possible, but probable.
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There is negligence if a reasonably prudent person could foresee injury as a
result of their conduct, and acted unreasonably in the light of what could be foreseen.
On the other hand, there is no negligence if a reasonably prudent person could not
have foreseen any injury as a result of their conduct, or acted reasonably in the light
of what could have been foreseen.
PJI 2:70 Proximate Cause-1n General
An act or omission is regarded as a cause of accident if it was a substantial
factor in bringing about the accident, that is, if it had such an effect in producing the
accident that reasonable people would regard it as a cause of the accident. There may
be more than one cause of an accident, but to be substantial, it cannot be slight or
trivial. You may, however, decide that a cause is substantial even if you assign a
relatively small percentage to it.
PE 2:71 Proximate Cause—Concurrent Causes
There may be more than one cause of an accident. Where the independent and
negligent acts or omissions of two or more parties cause an accident to another, each
of those negligent acts or omissions is regarded as a cause of that accident provided
that it was a substantial factor in bringing about that accident.
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PM 2:216 Injured Employee—Statutory Negligence—Safe Place
to Work
As you have heard, the plaintiff claims that the defendant LEON D.
DEMA11EIS CONSTRUCTION CORPORATION, the general contractor,
violated section 200 of the New York State Labor Law. Under section
200 of the Labor Law, the workplace where Plaintiff was working was
required to be "so constructed, equipped, arranged, operated and
conducted as to provide reasonable and adequate protection to the
lives, health and safety of all persons employed therein or lawfully
frequenting such places." Plaintiff claims that LEON D. DEMA1 1 EIS
CONSTRUCTION CORPORATION violated Labor Law 200 and LEON D.
DEMATTEIS CONSTRUCTION CORPORATION claims they did not violate
Labor Law 200.
As general contractor, LEON D. DEMATTEIS CONSTRUCTION
CORPORATION owed a duty to Plaintiff to use reasonable care to make the areas
where Plaintiff was performing their work that were under its control
reasonably safe. This duty extended to the ways of getting to and
from the Plaintiff's workplace that were within LEON D. DEMATTEIS
CONSTRUCTION CORPORATION's control. LEON D. DEMATTEIS
CONSTRUCTION CORPORATION's duty included an obligation to correct any
unsafe condition that LEON D. DEMATTEIS CONSTRUCTION CORPORATION
created or that existed in areas within DEMATTEIS' control and that were known to
LEON D. DEMA11hIS CONSTRUCTION CORPORATION or to any of LEON
D. DEMA11EIS CONSTRUCTION CORPORATION's employees. LEON D.
DEMATTEIS CONSTRUCTION CORPORATION also had a duty to conduct
reasonable inspections of the work areas within its control, to detect any unsafe
conditions and to correct any unsafe conditions that could have been discovered
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through such inspections. Finally, LEON D. DEMATTEIS CONSTRUCTION
CORPORATION had an obligation to correct any unsafe condition in the areas
within its control that existed for so long that, in the use of
reasonable care, LEON D. DEMATTEIS CONSTRUCTION CORPORATION or
its employees should have known of its existence.
In deciding whether LEON D. DEMATTEIS CONSTRUCTION
CORPORATION violated section 200 of the Labor Law, you will first consider
whether Plaintiffs workplace was unsafe and, if so, whether the alleged unsafe
condition was created by LEON D. DEMATTEIS CONSTRUCTION
CORPORATION or in an area that was within LEON D. DEMATTEIS
CONSTRUCTION CORPORATION's control and resulted from LEON D.
DEMA 11EIS CONSTRUCTION CORPORATION's failure to use reasonable care
to keep Plaintiffs workplace safe or to correct the unsafe condition after LEON D.
DEMA11E,IS CONSTRUCTION CORPORATION's or its employees knew or, in
the use of reasonable care, should have known of that condition. If you decide that
the Plaintiffs workplace was not unsafe or that the unsafe condition was not created
by LEON D. DEMATTEIS CONSTRUCTION CORPORATION or in an area that
was within LEON D. DEMATTEIS CONSTRUCTION CORPORATION's control,
then you will find for LEON D. DEMATTEIS CONSTRUCTION CORPORATION
on this issue.
If you decide that the Plaintiffs workplace was unsafe and that
the unsafe condition was created by LEON D. DEMATTEIS CONSTRUCTION
CORPORATION or in an area of the workplace that was within LEON D.
DEMA 11EIS CONSTRUCTION CORPORATION's control, then you will go on
to consider whether the unsafe condition resulted from LEON D.
DEMATTEIS CONSTRUCTION CORPORATION's failure to use reasonable care
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in making or keeping the Plaintiff's workplace safe, and whether
such failure was a substantial factor in causing Plaintiffs accident.
If you decide that the unsafe condition did not result from LEON D.
DEMATTEIS CONSTRUCTION CORPORATION' s failure to use reasonable care
in making or keeping the Plaintiffs workplace safe or that such
failure was not a substantial factor in causing Plaintiffs
accident, then you will find for DEMATTEIS on this issue.
If you decide that the unsafe condition did result from LEON D.
DEMA1 l'E,IS CONSTRUCTION CORPORATION' s failure to use reasonable care
in making or keeping the Plaintiffs workplace safe and that such
failure was a substantial factor in causing Plaintiffs accident,
then you will find for Plaintiff on this issue.
PA 2:216A Injured Employee — Violation of Industrial Rule — Vicarious
Liability — Nondelegable Duty of Owner/Subcontractor — Labor Law § 241(6)
Plaintiff also claims that THE NEW YORK CITY SCHOOL
CONSTRUCTION AUTHORITY, the owner of the site, and LEON D.
DEMATTEIS CONSTRUCTION CORPORATION, as general contractor, are
liable for Plaintiffs accident under Section 241(6) of the New York State Labor
Law. Section 241(6) requires that all "areas in which construction, excavation or
demolition work is being performed shall be so constructed, shored, equipped,
guarded, arranged, operated and conducted as to provide reasonable and adequate
protection and safety to the persons employed therein..." The State Commissioner
of Labor is authorized to make rules to give effect to this law. In this case, plaintiff
claims 12 NYCRR 23-1.5(c)(3), 12 NYCRR 23-1.21(b)(4)(i), and 12 NYCRR 23-
1.21 (ii), were violated.
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These Rules read, in pertinent part, as follows:
12 NYCRR 23-1.5(e)— General responsibility of employers
(3) All safety devices, safeguards and equipment in use shall be
kept sound and operable, and shall be immediately repaired or
restored or immediately removed from the job site if damaged.
23-1.21(b)(4)(i) and (ii)— Ladders and ladderways
(b)(4)(i) Any portable ladder used as a regular means of
access between floors or other levels in any building or
other structure shall be nailed or otherwise securely
fastened in place. Such a ladder shall extend at least 36
inches above the upper floor, level or landing or handholds
shall be provided at such upper levels to afford safe means
of access to or egress from the ladder. Such a ladder shall
be inclined a maximum of three inches for each foot of rise.
(b)(4)(ii) All ladder footings shall be firm. Slippery
surfaces and insecure objects such as bricks and boxes shall
not be used as ladder footings.
Under Labor Law § 241(6), the owner of an area where construction,
excavation or demolition is taking place, and any contractors or subcontractors, are
liable for an accident to a worker in that area caused by the failure of a general
contractor or a subcontractor to use reasonable care in constructing, shoring,
equipping, or guarding the site or in arranging, operating or conducting work in that
area. The owner is liable for an accident due to the failure of a general contractor
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or subcontractors to use reasonable care even though the owner did
not control or supervise the area or work being done there and did
not or could not know of any danger to plaintiff.
In this case, plaintiff claims that THE NEW YORK CITY SCHOOL
CONSTRUCTION AUTHORITY, the owner is liable to them for their accident
because of the failure of LEON D. DEMATTEIS CONSTRUCTION
CORPORATION and/or other subcontractors to use reasonable care. The only
evidence of failure to use reasonable care that you may consider in connection with
the liability of the owner, THE NEW YORK CITY SCHOOL CONSTRUCTION
AUTHORITY to plaintiff is evidence relating to the claimed violation or violations
of 12 NYCRR 23-1.5(c)(3), 12 NYCRR 23-1.21(b)(4)(i), and 12 NYCRR 23-1.21
(ii). Violation of these Rules would constitute some evidence of failure to use
reasonable care. The Defendants deny that these Rules were violated or that there
was any failure to use reasonable care.
In deciding whether THE NEW YORK CITY SCHOOL CONSTRUCTION
AUTHORITY, the owner, and LEON D. DEMATTEIS CONSTRUCTION
CORPORATION, as general contractor, are liable to plaintiff because of the claimed
failure to use reasonable care, you must consider all of the evidence submitted in
connection with the charged violation or violations of Rules 12 NYCRR 23-
1.5(c)(3), 12 NYCRR 23-1.21(b)(4)(i), and 12 NYCRR 23-1.21 (ii). If you find that
there was any violation or violations of Rules 12 NYCRR 23-1.5(c)(3), 12 NYCRR
23-1.21(b)(4)(i), and 12 NYCRR 23-1.21 (ii) and that such violation or violations
constituted failure to use reasonable care and that those failure or failures to use
reasonable care were a substantial factor in causing plaintiffs accident, you will find
for plaintiff on this issue. If you find that there were no violations of Rules 12
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NYCRR 23-1.5(c)(3), 12 NYCRR 23-1.21(b)(4)(i), and 12 NYCRR 23-1.21 (ii), or
that even though there was a violation or violations, they did not constitute a failure
to use reasonable care, or, if there was a failure or failures to use reasonable care,
but they were not substantial factors in causing plaintiffs accident, you will find for
the Defendants on this issue.
PR 2:217 Injured Employee—Action Under Statute Imposing
Absolute Liability
Section 240 of the Labor Law requires all contractor and owners in
the erection of a building to furnish or erect for the performance
of such work safety equipment and devices that are constructed, placed, operated, or
maintained as to give proper protection to the person performing such work.
If the defendants breached this statutory duty and such breach
was a substantial factor in causing plaintiffs injuries, the
statute imposes liability whether or not defendant was at fault and
whether or not there was any fault on the part of plaintiff that
contributed to the injury.
If you find that the safety equipment and devices in place for use by plaintiff
were so constructed, placed, and maintained as to give proper protection to plaintiff,
you will find for the defendants on this issue.
If you find that the safety equipment and devices were not so constructed,
placed, and, maintained as to give proper protection to plaintiff in the
performance of the work, and that the construction, placement, and,
maintenance of the safety equipment place for use by plaintiff was a substantial
factor in causing plaintiffs injury, you will find for plaintiff on this issue.
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PA 2:217.2 Injured Employee—Action Under Statute
Imposing Absolute Liability [Supplemental Instruction]
As you have heard, Defendants claim that they should not be held
liable to Plaintiff because adequate safety equipment and devices were available to
Plaintiff, and it was solely, meaning only, the Plaintiffs conduct that was the cause
of their injury.
The Defendants are not liable to the Plaintiff if Plaintiffs conduct was
the sole cause of his accident. A worker's conduct is the sole cause of an accident
when the worker had adequate safety devices available, the worker knew that such
devices were available, the worker knew that they were expected to use the devices
but, for no good reason, the worker chose instead to use an unsafe method to
perform their work and, fmally, that the accident would not have
occurred if the worker had not made that choice.
The Defendants are not liable to the Plaintiff if you find all of the
following: (1) that adequate safety equipment and devices were available, (2) that
Plaintiff knew that adequate safety equipment and devices were available, (3) that
Plaintiff knew that he were expected to use the adequate safety equipment and
devices, (4) that Plaintiff chose instead to disregard the safety equipment and
devices, (5) that the method Plaintiff used was unsa
Preview
FILED: RICHMOND COUNTY CLERK 02/20/2024 04:56 PM INDEX NO. 151640/2021 NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 02/20/2024 EXHIBIT “B” FILED: RICHMOND COUNTY CLERK 02/20/2024 01/18/2024 04:56 09:14 PM AM INDEX NO. 151640/2021 NYSCEF DOC. NO. 206 191 RECEIVED NYSCEF: 02/20/2024 01/18/2024 151640/2021 Soler JUDGE’S CHARGES AFTER TRIAL PJI 1:20 Introduction Members of the jury, we now come to that portion of the trial when you are instructed on the law that applies to the case, after which you will retire for your deliberations. You have heard and seen all the evidence introduced by the parties and through arguments of their attorneys you have learned the conclusions each party believes should be drawn from the admitted evidence. PJI 1 : 21 Review Principles Stated You will recall that at the beginning of the trial I stated certain principles. Briefly, they were that you are bound to accept the rules of law as I give them to you whether or not you agree with them . You are not to ask anyone else about the law. You must not consider or accept any advice about the law from anyone other than me. During this trial, I have ruled on the admission of evidence and on motions made with respect to the applicable law. You must not conclude from any ruling I have made, any questions I might have asked or anything I have said that 1 favor any party to this lawsuit. Your view of the evidence and your decisions on the issues of fact will decide this case. During the trial , I may have sustained objections to questions without allowing the witness to answer or where an answer was made, instructed that it be removed or stricken from the record, and that you disregard it and dismiss it from your minds. In reaching your decisions, you may not draw any inference or conclusion from an unanswered question, nor may you consider testimony that has been removed or stricken from the record. The law requires that your decisions be Page 1 of 25 FILED: RICHMOND COUNTY CLERK 02/20/2024 01/18/2024 04:56 09:14 PM AM INDEX NO. 151640/2021 NYSCEF DOC. NO. 206 191 RECEIVED NYSCEF: 02/20/2024 01/18/2024 150601/2021 Soler made solely on the admitted evidence. Anything I excluded from your consideration was excluded because it was not legally admissible. In deciding how much weight, if any, you choose to give to the testimony of any particular witness, there is no magical formula that can be used. The tests used in your everyday affairs to decide the reliability or unreliability of statements made to you by others are the tests you will apply in your deliberations. In deciding how much weight, if any, to give to a witness' testimony, you may consider the interest or lack of interest of that witness in the outcome of this case, the bias or prejudice of the witness, if there be any, the age, the appearance, the manner in which the witness gave testimony on the stand, the opportunity and ability the witness had to observe the facts about which they testified, and the probability or improbability of the witness' testimony when considered in the light of all the other evidence in the case. If it appears there is a conflict in the evidence, you will have to consider whether and to what extent the apparent conflict can be reconciled by fitting the different versions together; otherwise, you will have to decide which of the conflicting versions, if any, you will accept. By the processes I have just described and any further instructions I may give, you, as the sole judges of the facts, decide which of the witnesses you believe, what portion of their testimony you accept and what weight you give to it. PM 1:22 Falsus in Uno If you find that any witness has willfully testified falsely as to any important matter, the law permits you to disregard completely the entire testimony of that witness upon the principle that one who testifies falsely about one important matter is likely to testify falsely about everything. You are not required, however, to consider such a witness as totally unbelievable. You may accept so much of the witness' testimony as you deem true and disregard what you deem is false. Page 2 of 25 FILED: RICHMOND COUNTY CLERK 02/20/2024 01/18/2024 04:56 09:14 PM AM INDEX NO. 151640/2021 NYSCEF DOC. NO. 206 191 RECEIVED NYSCEF: 02/20/2024 01/18/2024 150601/2021 Soler PR 1:60 General Instruction—Burden of Proof—When Burden Differs on Different Issues To say that a party has the burden of proof on a particular issue means that, considering all the evidence in the case, the party's claim on that issue must be established by a fair preponderance of the credible evidence. The credible evidence means the testimony or exhibits that you find worthy of belief. A preponderance means the greater part of the evidence. That does not mean the greater number of witnesses, or the greater length of time taken by either side. The phrase preponderance of the evidence refers to the quality of the evidence, its weight, and the effect that it has on your minds. In order for a party to prevail on an issue on which he or she has the burden of proof, the evidence that supports their claim on that issue must appeal to you as more nearly representing what happened than the evidence opposed to it. If it does not or if it weighs so evenly that you are unable to say that there is a preponderance on either side, you must decide the question against the party who has the burden of proof and in favor of the opposing party. In this case the Plaintiff and Defendants both have the burden of proof regarding the claims they make against each other, the specifics of which I will explain to you shortly. P.JI 1:24 Return to Courtroom If, during your deliberations, your recollection of any part of the testimony should fail, or if you have any question about my instructions to you on the law, then you have the right to return to the courtroom for the purpose of having the testimony read to you or your question addressed. Page 3 of 25 FILED: RICHMOND COUNTY CLERK 02/20/2024 01/18/2024 04:56 09:14 PM AM INDEX NO. 151640/2021 NYSCEF DOC. NO. 206 191 RECEIVED NYSCEF: 02/20/2024 01/18/2024 150601/2021 Soler PA 1:25 Consider Only Testimony and Exhibits In deciding this case, you may consider only the exhibits that were admitted in evidence and the testimony of the witnesses as you have heard it in this courtroom or as was read to you or shown to you during the trial. Under our rules of practice an examination before trial or testimony that was recorded before the trial was taken under oath and is entitled to equal consideration by you even though it was taken before the trial and outside this courtroom. However, arguments, remarks, and summations of the attorneys are not evidence, nor is anything I now say or may have said with regard to the facts, evidence. As I instructed you previously, it is important to remember that you may not use any interne services or social media, including for example, Google, Facebook, Twitter/X, LinkedIn, Instagram, TikTok, or any other media platforms, to discuss or give or get information about the case or its participants or to research topics concerning the trial. Electronic devices including any cell phones, smartphones, laptops, or any other personal electronic devices must be turned off while you are deliberating. Allowing outside information which may be incomplete, inaccurate, or otherwise unreliable to affect your judgment is unfair and prejudicial to the parties and could require this case to be retried. PJI 1:25A Juror's Use of Professional Expertise Although as jurors you are encouraged to use all of your life experiences in analyzing testimony and other evidence and reaching a fair verdict, you may not communicate any professional expertise you might have or other facts not in evidence to the other jurors. You must base your discussions and decisions solely on the evidence admitted during the trial and that evidence alone. You may not consider or speculate on matters not in evidence or matters outside the case. Page 4 of 25 FILED: RICHMOND COUNTY CLERK 02/20/2024 01/18/2024 04:56 09:14 PM AM INDEX NO. 151640/2021 NYSCEF DOC. NO. 206 191 RECEIVED NYSCEF: 02/20/2024 01/18/2024 150601/2021 Soler PM 1:25C General Instruction—Interested Witness—Generally The plaintiff and an employee of a defendant testified before you. As parties to the action, or employees of a party, they are interested witnesses, meaning they have an interest in the outcome of the case that may have affected their testimony. An interested witness is not necessarily less believable than a disinterested witness. The fact that they are interested in the outcome of the case does not mean that they have not told the truth. It is for you to decide from the demeanor of the witness on the stand and such other tests as your experience dictates whether or not the testimony has been influenced, intentionally or unintentionally, by their interest. You may reject the testimony if, after careful consideration of all the evidence in the case, including the cross-examination of the witness, you decide you do not believe the testimony or you find it is not reliable. On the other hand, you are not required to reject the testimony of such a witness and may accept all or such part of their testimony as you find believable and reliable and reject such part as you find unworthy of acceptance. The testimony is entitled to such weight as you decide it is worth. PA 1:92 General Instruction—Interested Witness—Employee of Party The fact that a witness was and still is employed by a Defendant and the testimony you have heard of this witness' relationship with their employer may be considered by you in deciding whether the testimony of that witness is in any way influenced by the employment relationship with the Defendant. Page 5 of 25 FILED: RICHMOND COUNTY CLERK 02/20/2024 01/18/2024 04:56 09:14 PM AM INDEX NO. 151640/2021 NYSCEF DOC. NO. 206 191 RECEIVED NYSCEF: 02/20/2024 01/18/2024 150601/2021 Soler PH 1:26 General Instruction—Special Verdicts & General Verdicts Supported by Written Interrogatories This case will be decided on the basis of answers you give to written questions that will be submitted to you. Each of the questions calls for a "Yes" or "No" answer, or some percentage. While it is important that the views of all jurors be considered, five of the six of you must agree on the answer to any question, but the same five persons need not agree on all the answers. When five of you have agreed on any answer, the foreperson of the jury will write the answer in the space provided for each answer and each of you will sign in the appropriate place to indicate your agreement or disagreement. Each question will be followed by an instruction as to how you will proceed based upon your answer to that question. If you disagree with an answer that five jurors have agreed upon, you should not stop deliberating and you should not stop voting on the rest of the questions that need to be answered. In other words, you should continue participating in the deliberations and voting on all questions that require answers. When you have answered all the questions that require answers, report to the court. PJI 1:26A Five-Sixths Verdict—General Verdict While it is important that the views of all jurors be considered, a verdict of five of the six members of the jury will be sufficient under the law. When five of you agree on a verdict, you may report your verdict to the court. PJI 1:27 Exclude Sympathy In reaching your verdict you are not to be affected by sympathy for any of the parties, what the reaction of the parties or of the public to your verdict may be, whether it will please or displease anyone, be popular or unpopular or, indeed, any Page 6 of 25 FILED: RICHMOND COUNTY CLERK 02/20/2024 01/18/2024 04:56 09:14 PM AM INDEX NO. 151640/2021 NYSCEF DOC. NO. 206 191 RECEIVED NYSCEF: 02/20/2024 01/18/2024 150601/2021 Soler consideration outside the case as it has been presented to you in this courtroom. Your verdict will be determined by the conclusions you reach, no matter whom the verdict helps or hurts. PR 1:27A A Fair Juror and Absence of Implicit or Conscious Bias You may recall that at the beginning of the trial I instructed you on the concept of a fair juror. As a fair and impartial juror, you must guard against the application of any stereotypes or attitudes about people or groups that might lead you to render a biased decision based on those stereotypes or attitudes. Keep in mind that bias, based upon stereotypes or attitudes, is not always obvious or conscious. In assessing the testimony and other evidence in the case, you must not be swayed by those stereotypes or attitudes. PM 1:28 Jury Function As jurors, your duty is to decide, from all the testimony that you have heard and the exhibits that have been admitted into evidence, what the facts are. You are the sole and exclusive judges of the facts. Neither I nor anyone else can take over your responsibility to decide the facts of this case, which you will do by the answers you provide on the verdict sheet. As sole judges of the facts, you must decide which of the witnesses you believe, what portion of their testimony you accept, and what weight you give to it. Page 7 of 25 FILED: RICHMOND COUNTY CLERK 02/20/2024 01/18/2024 04:56 09:14 PM AM INDEX NO. 151640/2021 NYSCEF DOC. NO. 206 191 RECEIVED NYSCEF: 02/20/2024 01/18/2024 150601/2021 Soler RR 1:7A Impartiality A lawsuit is a civilized method of determining differences between people. It is basic to the administration of any system of justice that the decision on both the law and the facts be made fairly and honestly. You as the jurors and I as the court have a heavy responsibility—to assure that a just result is reached in deciding the differences between the plaintiff and the defendant in this case. PJI 1:39 No Inference From Rulings In the course of the trial, it has been necessary for me to rule on the admission of evidence and on motions made with respect to the applicable law. You must not conclude from any such ruling I have made or from any questions I may have asked or from anything that I have said during the course of the trial or from these instructions or the manner in which they are given that I favor any party to this lawsuit. It is your recollection of evidence and your decision on the issues of fact which will decide this case. PH 1:7 Consider Only Competent Evidence At times during the trial, I have sustained objections to questions asked without allowing the witness to answer or where an answer was made, instructed that it be stricken from the record and that you disregard it and dismiss it from your minds. You may not draw any inference or conclusions from an unanswered question, nor may you consider testimony which has been stricken from the record in reaching your decision. The law requires that your decision be made solely upon Page 8 of 25 FILED: RICHMOND COUNTY CLERK 02/20/2024 01/18/2024 04:56 09:14 PM AM INDEX NO. 151640/2021 NYSCEF DOC. NO. 206 191 RECEIVED NYSCEF: 02/20/2024 01/18/2024 150601/2021 Soler the evidence before you. Such items as I have excluded from your consideration were excluded because they were not legally admissible. PR 1:8 Weighing Testimony The law does not, however, require you to accept all of the evidence I admit. In deciding what evidence you will accept you must make your own evaluation of the testimony given by each of the witnesses, and decide how much weight you choose to give to that testimony. The testimony of a witness may not conform to the facts as they occurred because he or she is intentionally lying, because the witness did not accurately see or hear what he or she is testifying about, because the witness' recollection is faulty, or because the witness has not expressed themselves clearly in testifying. There is no magical formula by which you evaluate testimony. You bring with you to this courtroom all of the experience and background of your lives. In your everyday affairs you decide for yourselves the reliability or unreliability of things people tell you. The same tests that you use in your everyday dealings are the tests which you apply in your deliberations. The interest or lack of interest of any witness in the outcome of this case, the bias or prejudice of a witness, if there be any, the age, the appearance, the manner in which the witness gives testimony on the stand, the opportunity that the witness had to observe the facts about which he or she testifies, the probability or improbability of the witness' testimony when considered in the light of all of the other evidence in the case, are all items to be considered by you in deciding how much weight, if any, you will give to that witness' testimony. If it appears that there is a conflict in the evidence, you will have to consider whether the apparent conflict can be reconciled by fitting the different versions together. If, however, that is not possible, you will have to decide which of the conflicting versions you will accept. Page 9 of 25 FILED: RICHMOND COUNTY CLERK 02/20/2024 01/18/2024 04:56 09:14 PM AM INDEX NO. 151640/2021 NYSCEF DOC. NO. 206 191 RECEIVED NYSCEF: 02/20/2024 01/18/2024 150601/2021 Soler PA 1:70 General Instruction—Direct and Circumstantial Evidence Facts must be proved by evidence. Evidence includes the testimony of a witness concerning what the witness saw, heard or did. Evidence also includes writings, photographs, or other physical objects which may be considered as proof of a fact. Evidence can either be direct or circumstantial. Direct evidence is evidence of what a witness saw, heard, or did which, if believed by you, proves a fact. For example, suppose a fact in dispute is whether I knocked over this water glass near the witness chair. If someone testifies that they saw me knock over the glass, that is direct evidence that I knocked over the glass. Circumstantial evidence is evidence of a fact that does not directly prove a fact in dispute but which permits a reasonable inference or conclusion that the fact exists. For example, a witness testifies that they saw this water glass on the bench. The witness states that, while they was looking the other way, they heard the breaking of glass, looked up, and saw me wiping water from my clothes and from the papers on the bench. This testimony is not direct evidence that I knocked over the glass; it is circumstantial evidence from which you could reasonably infer that I knocked over the glass. Those facts that form the basis of an inference must be proved and the inference to be drawn must be one that reasonably may be drawn. In the example, even though the witness did not see me knock over the glass, if you believe their testimony, you could conclude that I did. Therefore, the circumstantial evidence, if accepted by you, allows you to conclude that the fact in dispute has been proved. In reaching your conclusion you may not guess or speculate. Suppose, for example, the witness testifies that the water glass was located equally distant from the court clerk and me. The witness states they heard the breaking of glass and looked up to see both the court clerk and me brushing water from our clothes. If you believe that testimony, you still could not decide on that evidence alone who Page 10 of 25 FILED: RICHMOND COUNTY CLERK 02/20/2024 01/18/2024 04:56 09:14 PM AM INDEX NO. 151640/2021 NYSCEF DOC. NO. 206 191 RECEIVED NYSCEF: 02/20/2024 01/18/2024 150601/2021 Soler knocked over the water glass. Where these are the only proved facts, it only would be a guess as to who did it. However, if the witness also testifies that she heard the court clerk say "I am sorry," then this additional evidence would allow you to decide who knocked over the water glass. Facts may be proved either by direct or circumstantial evidence or by a combination of both. You may give circumstantial evidence less weight, more weight, or the same weight as direct evidence. NI 1:90 General Instruction—Expert Witness You will recall that the following witnesses testified concerning their qualifications: The Plaintiffs Expert: Scott Silberman — Expert in the Field of Civil Engineering and How it Relates to Construction Site Safety. Defendant's Expert: Bernard Lorenz — Expert in the Field of Civil Engineering and How it Relates to Construction Site Safety These witnesses gave their opinions concerning issues in this case. When a case involves a matter of science or art or requires special knowledge or skill that most people do not have, a qualified witness is permitted to state their opinion for the information of the court and jury. The opinions stated by these witnesses were based on particular facts, as they obtained knowledge of them and testified about them or as the attorneys who questioned them asked them to assume. You may reject any opinion if you find the facts to be different from the facts that formed the basis for the opinion. You may also reject an opinion if, after careful consideration of all the evidence in the case, including the cross-examination of the witnesses, you decide that an opinion is not convincing. In other words, you are not required to accept any opinion to the exclusion of the facts and circumstances disclosed by other evidence. Opinion testimony should be evaluated in the same way as the testimony Page 11 of 25 FILED: RICHMOND COUNTY CLERK 02/20/2024 01/18/2024 04:56 09:14 PM AM INDEX NO. 151640/2021 NYSCEF DOC. NO. 206 191 RECEIVED NYSCEF: 02/20/2024 01/18/2024 150601/2021 Soler of any other witness. It is given to assist you in reaching a proper conclusion; it is entitled to such weight as you find the witness's qualifications in the field warrant and must be considered by you, but is not controlling upon your judgment. Equality of litigants — Individuals and Corporations (Requested by Defense) You must consider and decide this case as an action between persons of equal standing in the community and of equal worth. Corporations have the same rights to a fair trial at your hands as do private individuals. All parties stand equal before the law and are to be dealt with as equals in a court of justice. PA 2:10 Common Law Standard of Care—Negligence Defined—Generally Negligence is lack of ordinary care. It is a failure to use that degree of care that a reasonably prudent person would have used under the same circumstances. Negligence may arise from doing an act that a reasonably prudent person would not have done under the same circumstances, or, on the other hand, from failing to do an act that a reasonably prudent person would have done under the same circumstances. PH 2:12 Common Law Standard of Care—Foreseeability—Generally Negligence requires both a reasonably foreseeable danger of injury to another and conduct that is unreasonable in proportion to that danger. A person is only responsible for the results of their conduct if the risk of injury is reasonably foreseeable. The exact occurrence or exact injury does not have to be foreseeable; but injury as a result of negligent conduct must be not merely possible, but probable. Page 12 of 25 FILED: RICHMOND COUNTY CLERK 02/20/2024 01/18/2024 04:56 09:14 PM AM INDEX NO. 151640/2021 NYSCEF DOC. NO. 206 191 RECEIVED NYSCEF: 02/20/2024 01/18/2024 150601/2021 Soler There is negligence if a reasonably prudent person could foresee injury as a result of their conduct, and acted unreasonably in the light of what could be foreseen. On the other hand, there is no negligence if a reasonably prudent person could not have foreseen any injury as a result of their conduct, or acted reasonably in the light of what could have been foreseen. PJI 2:70 Proximate Cause-1n General An act or omission is regarded as a cause of accident if it was a substantial factor in bringing about the accident, that is, if it had such an effect in producing the accident that reasonable people would regard it as a cause of the accident. There may be more than one cause of an accident, but to be substantial, it cannot be slight or trivial. You may, however, decide that a cause is substantial even if you assign a relatively small percentage to it. PE 2:71 Proximate Cause—Concurrent Causes There may be more than one cause of an accident. Where the independent and negligent acts or omissions of two or more parties cause an accident to another, each of those negligent acts or omissions is regarded as a cause of that accident provided that it was a substantial factor in bringing about that accident. Page 13 of 25 FILED: RICHMOND COUNTY CLERK 02/20/2024 01/18/2024 04:56 09:14 PM AM INDEX NO. 151640/2021 NYSCEF DOC. NO. 206 191 RECEIVED NYSCEF: 02/20/2024 01/18/2024 150601/2021 Soler PM 2:216 Injured Employee—Statutory Negligence—Safe Place to Work As you have heard, the plaintiff claims that the defendant LEON D. DEMA11EIS CONSTRUCTION CORPORATION, the general contractor, violated section 200 of the New York State Labor Law. Under section 200 of the Labor Law, the workplace where Plaintiff was working was required to be "so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places." Plaintiff claims that LEON D. DEMA1 1 EIS CONSTRUCTION CORPORATION violated Labor Law 200 and LEON D. DEMATTEIS CONSTRUCTION CORPORATION claims they did not violate Labor Law 200. As general contractor, LEON D. DEMATTEIS CONSTRUCTION CORPORATION owed a duty to Plaintiff to use reasonable care to make the areas where Plaintiff was performing their work that were under its control reasonably safe. This duty extended to the ways of getting to and from the Plaintiff's workplace that were within LEON D. DEMATTEIS CONSTRUCTION CORPORATION's control. LEON D. DEMATTEIS CONSTRUCTION CORPORATION's duty included an obligation to correct any unsafe condition that LEON D. DEMATTEIS CONSTRUCTION CORPORATION created or that existed in areas within DEMATTEIS' control and that were known to LEON D. DEMA11hIS CONSTRUCTION CORPORATION or to any of LEON D. DEMA11EIS CONSTRUCTION CORPORATION's employees. LEON D. DEMATTEIS CONSTRUCTION CORPORATION also had a duty to conduct reasonable inspections of the work areas within its control, to detect any unsafe conditions and to correct any unsafe conditions that could have been discovered Page 14 of 25 FILED: RICHMOND COUNTY CLERK 02/20/2024 01/18/2024 04:56 09:14 PM AM INDEX NO. 151640/2021 NYSCEF DOC. NO. 206 191 RECEIVED NYSCEF: 02/20/2024 01/18/2024 150601/2021 Soler through such inspections. Finally, LEON D. DEMATTEIS CONSTRUCTION CORPORATION had an obligation to correct any unsafe condition in the areas within its control that existed for so long that, in the use of reasonable care, LEON D. DEMATTEIS CONSTRUCTION CORPORATION or its employees should have known of its existence. In deciding whether LEON D. DEMATTEIS CONSTRUCTION CORPORATION violated section 200 of the Labor Law, you will first consider whether Plaintiffs workplace was unsafe and, if so, whether the alleged unsafe condition was created by LEON D. DEMATTEIS CONSTRUCTION CORPORATION or in an area that was within LEON D. DEMATTEIS CONSTRUCTION CORPORATION's control and resulted from LEON D. DEMA 11EIS CONSTRUCTION CORPORATION's failure to use reasonable care to keep Plaintiffs workplace safe or to correct the unsafe condition after LEON D. DEMA11E,IS CONSTRUCTION CORPORATION's or its employees knew or, in the use of reasonable care, should have known of that condition. If you decide that the Plaintiffs workplace was not unsafe or that the unsafe condition was not created by LEON D. DEMATTEIS CONSTRUCTION CORPORATION or in an area that was within LEON D. DEMATTEIS CONSTRUCTION CORPORATION's control, then you will find for LEON D. DEMATTEIS CONSTRUCTION CORPORATION on this issue. If you decide that the Plaintiffs workplace was unsafe and that the unsafe condition was created by LEON D. DEMATTEIS CONSTRUCTION CORPORATION or in an area of the workplace that was within LEON D. DEMA 11EIS CONSTRUCTION CORPORATION's control, then you will go on to consider whether the unsafe condition resulted from LEON D. DEMATTEIS CONSTRUCTION CORPORATION's failure to use reasonable care Page 15 of 25 FILED: RICHMOND COUNTY CLERK 02/20/2024 01/18/2024 04:56 09:14 PM AM INDEX NO. 151640/2021 NYSCEF DOC. NO. 206 191 RECEIVED NYSCEF: 02/20/2024 01/18/2024 150601/2021 Soler in making or keeping the Plaintiff's workplace safe, and whether such failure was a substantial factor in causing Plaintiffs accident. If you decide that the unsafe condition did not result from LEON D. DEMATTEIS CONSTRUCTION CORPORATION' s failure to use reasonable care in making or keeping the Plaintiffs workplace safe or that such failure was not a substantial factor in causing Plaintiffs accident, then you will find for DEMATTEIS on this issue. If you decide that the unsafe condition did result from LEON D. DEMA1 l'E,IS CONSTRUCTION CORPORATION' s failure to use reasonable care in making or keeping the Plaintiffs workplace safe and that such failure was a substantial factor in causing Plaintiffs accident, then you will find for Plaintiff on this issue. PA 2:216A Injured Employee — Violation of Industrial Rule — Vicarious Liability — Nondelegable Duty of Owner/Subcontractor — Labor Law § 241(6) Plaintiff also claims that THE NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY, the owner of the site, and LEON D. DEMATTEIS CONSTRUCTION CORPORATION, as general contractor, are liable for Plaintiffs accident under Section 241(6) of the New York State Labor Law. Section 241(6) requires that all "areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein..." The State Commissioner of Labor is authorized to make rules to give effect to this law. In this case, plaintiff claims 12 NYCRR 23-1.5(c)(3), 12 NYCRR 23-1.21(b)(4)(i), and 12 NYCRR 23- 1.21 (ii), were violated. Page 16 of 25 FILED: RICHMOND COUNTY CLERK 02/20/2024 01/18/2024 04:56 09:14 PM AM INDEX NO. 151640/2021 NYSCEF DOC. NO. 206 191 RECEIVED NYSCEF: 02/20/2024 01/18/2024 150601/2021 Soler These Rules read, in pertinent part, as follows: 12 NYCRR 23-1.5(e)— General responsibility of employers (3) All safety devices, safeguards and equipment in use shall be kept sound and operable, and shall be immediately repaired or restored or immediately removed from the job site if damaged. 23-1.21(b)(4)(i) and (ii)— Ladders and ladderways (b)(4)(i) Any portable ladder used as a regular means of access between floors or other levels in any building or other structure shall be nailed or otherwise securely fastened in place. Such a ladder shall extend at least 36 inches above the upper floor, level or landing or handholds shall be provided at such upper levels to afford safe means of access to or egress from the ladder. Such a ladder shall be inclined a maximum of three inches for each foot of rise. (b)(4)(ii) All ladder footings shall be firm. Slippery surfaces and insecure objects such as bricks and boxes shall not be used as ladder footings. Under Labor Law § 241(6), the owner of an area where construction, excavation or demolition is taking place, and any contractors or subcontractors, are liable for an accident to a worker in that area caused by the failure of a general contractor or a subcontractor to use reasonable care in constructing, shoring, equipping, or guarding the site or in arranging, operating or conducting work in that area. The owner is liable for an accident due to the failure of a general contractor Page 17 of 25 FILED: RICHMOND COUNTY CLERK 02/20/2024 01/18/2024 04:56 09:14 PM AM INDEX NO. 151640/2021 NYSCEF DOC. NO. 206 191 RECEIVED NYSCEF: 02/20/2024 01/18/2024 150601/2021 Soler or subcontractors to use reasonable care even though the owner did not control or supervise the area or work being done there and did not or could not know of any danger to plaintiff. In this case, plaintiff claims that THE NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY, the owner is liable to them for their accident because of the failure of LEON D. DEMATTEIS CONSTRUCTION CORPORATION and/or other subcontractors to use reasonable care. The only evidence of failure to use reasonable care that you may consider in connection with the liability of the owner, THE NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY to plaintiff is evidence relating to the claimed violation or violations of 12 NYCRR 23-1.5(c)(3), 12 NYCRR 23-1.21(b)(4)(i), and 12 NYCRR 23-1.21 (ii). Violation of these Rules would constitute some evidence of failure to use reasonable care. The Defendants deny that these Rules were violated or that there was any failure to use reasonable care. In deciding whether THE NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY, the owner, and LEON D. DEMATTEIS CONSTRUCTION CORPORATION, as general contractor, are liable to plaintiff because of the claimed failure to use reasonable care, you must consider all of the evidence submitted in connection with the charged violation or violations of Rules 12 NYCRR 23- 1.5(c)(3), 12 NYCRR 23-1.21(b)(4)(i), and 12 NYCRR 23-1.21 (ii). If you find that there was any violation or violations of Rules 12 NYCRR 23-1.5(c)(3), 12 NYCRR 23-1.21(b)(4)(i), and 12 NYCRR 23-1.21 (ii) and that such violation or violations constituted failure to use reasonable care and that those failure or failures to use reasonable care were a substantial factor in causing plaintiffs accident, you will find for plaintiff on this issue. If you find that there were no violations of Rules 12 Page 18 of 25 FILED: RICHMOND COUNTY CLERK 02/20/2024 01/18/2024 04:56 09:14 PM AM INDEX NO. 151640/2021 NYSCEF DOC. NO. 206 191 RECEIVED NYSCEF: 02/20/2024 01/18/2024 150601/2021 Soler NYCRR 23-1.5(c)(3), 12 NYCRR 23-1.21(b)(4)(i), and 12 NYCRR 23-1.21 (ii), or that even though there was a violation or violations, they did not constitute a failure to use reasonable care, or, if there was a failure or failures to use reasonable care, but they were not substantial factors in causing plaintiffs accident, you will find for the Defendants on this issue. PR 2:217 Injured Employee—Action Under Statute Imposing Absolute Liability Section 240 of the Labor Law requires all contractor and owners in the erection of a building to furnish or erect for the performance of such work safety equipment and devices that are constructed, placed, operated, or maintained as to give proper protection to the person performing such work. If the defendants breached this statutory duty and such breach was a substantial factor in causing plaintiffs injuries, the statute imposes liability whether or not defendant was at fault and whether or not there was any fault on the part of plaintiff that contributed to the injury. If you find that the safety equipment and devices in place for use by plaintiff were so constructed, placed, and maintained as to give proper protection to plaintiff, you will find for the defendants on this issue. If you find that the safety equipment and devices were not so constructed, placed, and, maintained as to give proper protection to plaintiff in the performance of the work, and that the construction, placement, and, maintenance of the safety equipment place for use by plaintiff was a substantial factor in causing plaintiffs injury, you will find for plaintiff on this issue. Page 19 of 25 FILED: RICHMOND COUNTY CLERK 02/20/2024 01/18/2024 04:56 09:14 PM AM INDEX NO. 151640/2021 NYSCEF DOC. NO. 206 191 RECEIVED NYSCEF: 02/20/2024 01/18/2024 150601/2021 Soler PA 2:217.2 Injured Employee—Action Under Statute Imposing Absolute Liability [Supplemental Instruction] As you have heard, Defendants claim that they should not be held liable to Plaintiff because adequate safety equipment and devices were available to Plaintiff, and it was solely, meaning only, the Plaintiffs conduct that was the cause of their injury. The Defendants are not liable to the Plaintiff if Plaintiffs conduct was the sole cause of his accident. A worker's conduct is the sole cause of an accident when the worker had adequate safety devices available, the worker knew that such devices were available, the worker knew that they were expected to use the devices but, for no good reason, the worker chose instead to use an unsafe method to perform their work and, fmally, that the accident would not have occurred if the worker had not made that choice. The Defendants are not liable to the Plaintiff if you find all of the following: (1) that adequate safety equipment and devices were available, (2) that Plaintiff knew that adequate safety equipment and devices were available, (3) that Plaintiff knew that he were expected to use the adequate safety equipment and devices, (4) that Plaintiff chose instead to disregard the safety equipment and devices, (5) that the method Plaintiff used was unsa