Preview
FILED: NEW YORK COUNTY CLERK 04/09/2018 12:57 PM INDEX NO. 157947/2015
NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 04/09/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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NACI UZEYIROGLU and ACELYA UZEYIROGLU,
Index No.: 157947/15
Plaintiffs,
REPLY AFFIRMATION
-against-
Return Date: April 11, 2018
EDLER ESTATE CARE INC., JON P. VACCARI Hon. Manuel J. Mendez
and STEPHEN FLEMING,
Defendants.
——
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EDMOND C. CHAKMAKIAN, an attorney duly admitted to practice law before the courts
ofthe State ofNew York, does hereby affirm the following to be true under the penalties of perjury,
pursuant to CPLR § 2106:
1. I am the for Naci Uzeyiroglu and Acelya in the above-
attorney plaintiffs, Uzeyiroglu,
captioned action, and I am familiar with the facts and circumstances stated herein, based on my
review of the file kept in this matter and my handling of the case thus far for plaintiffs.
2. I submit this affirmation in reply to the respective affirmation served by defendant's
plaintiffs'
counsel in opposition to the motion for summary judgment. Simply stated, the opposing
affirmation fails to raise any question of fact, nor demonstrate why plaintiffs are not entitled to
have their motion granted.
3. The defendant's attempt to create a feigned issue of fact notwithstanding, the undisputed
"construction"
fact remains that plaintiff was engaged in as said term defined by New York State
Labor Law § 240(1) and, as such, he isentitled to the mandated protection of the New York State
Labor Law. Plaintiff, at the time of his accident, was working on an eight-foot, A-frame ladder,
unfastening bolts from a beam when the column on which the beam was affixed to "slid out",
state'
propelling the plaintiff and the ladder some twenty (20) feet to the ground below. As the s
1
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highest court has ruled, "the single decisive question is whether plaintiffs injuries were the direct
consequence of a failure to provide adequate protection against a risk arising from a physically
differential"
significant elevation (Runner v. New York Stock Exchange, 13 NY3d 599, 603
[2009]). In the case at itis beyond dispute that plaintiff's injuries were caused an elevation-
bar, by
related risk, and that no adequate safety device was provided to him. Thus, the liability mandated
by New York State Labor Law § 240(1) attaches as a matter of law.
Estate" witness'
4. Much like defendant, Edler Estate Care Inc.'s (hereinafter, "Edler Estate")
deposition testimony, defendant's affirmation attempts to cloud the issues as to whether or not
plaintiffs'
Edler Estate was the General Contractor on the subject jobsite. As set forth in attorney's
Affirmation in Support, however, based upon the facts adduced at the depositions, Edler Estate
plaintiffs'
was, in fact, the General Contractor as a matter of law. As more fully set forth in
attorney's Affirmation in Support, Mr. Edler was present on the jobsite every day to supervise the
project, was responsible for coordinating the various trades/subcontractors, had the ability to stop
work on the site if an unsafe condition arose, held weekly on-site meetings, took progress
photographs and opened and closed the site every work day. Further, the owner, Jon P. Vaccari
and Edler Estate entered into a contract with Edler Estate being responsible for "Site Supervision
work."
and construction
5. The assertion made by John T. Gorton, Esq. in his Affirmation in Opposition that,
"[P]laintiff has not cited a single NYCRR self-executing regulation that was allegedly violated
accident"
that proximately caused plaintiffs is puzzling to say the least. In point of fact, in
plaintiffs'
Memorandum of Law on page 5, a violation of NYCRR § 23-1.21 (ladders and
ladderways) is cited. Plaintiff's accident was caused due to the ladder he was working on falling
as itwas not properly placed, or "footed", in any way, making the failure to provide the safety
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device (safety net and/or safety harness and/or lanyard and/or properly placed ladder) the
proximate cause of the accident.
herring"
6. In any event, the issue is a "red as a violation of the Industrial Code in not required
in a Labor Law § 240(1) cause of action. The relevant inquiry is whether the plaintiff was exposed
to the extraordinary risks resulting from him working at an elevated height. The fact remains that
the courts have routinely ruled in favor of plaintiffs for summary judgment in Labor Law § 240(1)
cases with facts similar to the one at bar, i.e.,accidents due to the improper placement of a device,
like an unsecured ladder. See, Baugh v. New York City School Construction Authority, 140 AD3d
[2nd ("
1104 Dept. 2016] plaintiff made a prima facie showing of his entitlement to judgment as a
matter of law on the issue of liability under that statute by showing that, although he was provided
with a ladder, ...the ladder was not secured so as to prevent itand him from falling."); Seferovic
[2nd ("
v. Atlantic Real Estate Holdings, LLC, 127 AD3d 1058, 1059 Dept. 2015] plaintiffs
established their prima facie entitlement to judgment... on the cause of action alleging a violation
of Labor Law § 240(1) by submitting evidence that the ladder was unsecured and twisted out from
under the injured plaintiff... causing him to fall."; Purcell v. Visiting Nurses Foundation Inc., 127
[1st
AD3d 572, 573 Dept. 2015] ("the ladder was not 'so... placed... as to give proper protection
to' plaintiff'
plaintiff").
7. Further, the fact that plaintiff took direction from his foreman bears no consequence to
plaintiff's claims under the Labor Law as defendant's liability stems from itsnondelegable duty
as the General Contractor. The Appellate Division, First Department held in Montalvo v. J.
[lSt
Petrocelli Construction, Inc., 8 AD3d 173, 780 N.Y.S.2d 558 Dept. 2004] that the "fact that
liability."
general contractor did not supervise or control work of journeyman did not preclude
8. Despite defendant's attempt to create same, plaintiffs maintain that no questions of fact
3
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exist as to their Labor Law § 240(1) claim. It isclear that plaintiff was employed and engaged in
construction, was subject to an elevation related risk and was not provided with the proper safety
device(s). As recently held in Fuger v. Amsterdam House for Continuing Care Retirement
[1st
Community, Inc., 117 AD3d 649 Dept 2014], plaintiffs should be granted summary judgment
under Labor Law § 240(1) when evidence is provided that plaintiff was injured in a fall from an
defendants'
elevation risk, proximately caused by failure to equip him with safety devices and
failure to provide adequate protection. Further, "It is well settled that [the] failure to properly
secure a ladder, to ensure that itremain steady and erect while being used, constitutes a violation
240(1)."
of Labor Law § (See, Kijak v. 330 Madison Avenue Corp.,.,251 AD2d 152, 153, 675
214th
N.Y.S.2d 341, citing Schultz v. 585 W. St. Owners Corp.,.,228 AD2d 381, 644 N.Y.S.2d 722
[1st
Dept 1996]).
plaintiffs'
9. It remains position that the facts set forth herein mandate a finding of liability
against defendant Edler Estate as the plaintiff's injuries being caused by a fall from an unsupported
and improperly placed ladder, because of the failure to provide him with the appropriate safety
device(s), presents a classic case of Labor Law § 240(1) liability.In addition, because there is no
question in the case at bar that there were violations of § 240(1) that proximately caused the
unsupported and improperly placed ladder to fall, propelling plaintiff to the ground with it,
summary judgment against defendant Edler Estate on the issue of liability is warranted.
CONCLUSION
Based upon the foregoing, itis respectfully requested that thisCourt issue an Order
pursuant to CPLR § 3212, granting partial summary judgment in favor of plaintiffs and against
plaintiffs'
defendant, Edler Estate, on the issue of liability as to Labor Law § cause of
240(1)
action, and granting such other and further relief as this Court deems just, equitable, and proper.
plaintiffs'
WHEREFORE, motion should be granted in itsentirety.
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NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 04/09/2018
Dated: Hauppauge,
April 9, 2018
New York
r
EDMO 6 . CHAKMAKIAN
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NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 04/09/2018
Index No.: 157847/15
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
NACI UZEYIROGLU and ACELYA UZEYIROGLU,
Plaintiffs,
-against-
EDLER ESTATE CARE INC., JON P. VACCARI
and STEPHEN FLEMING,
Defendants.
REPLY AFFIRMATION
From: THE LAW OFFICES OF EDMOND C. CHAKMAKIAN, P.C.
200 MOTOR PARKWAY, SUITE A3
HAUPPAUGE, NEW YORK 11788
(631) 232-6600, (631) 232-1432 fax
Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of
the State of New York, certifies that, upon information and belief and reasonable inquiry, the
contentions contained in the annexed document are not frivolous.
Dated: Hauppauge, New York
April 9, 2018
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Preview
FILED: NEW YORK COUNTY CLERK 04/09/2018 12:57 PM INDEX NO. 157947/2015 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 04/09/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------X NACI UZEYIROGLU and ACELYA UZEYIROGLU, Index No.: 157947/15 Plaintiffs, REPLY AFFIRMATION -against- Return Date: April 11, 2018 EDLER ESTATE CARE INC., JON P. VACCARI Hon. Manuel J. Mendez and STEPHEN FLEMING, Defendants. —— -------------------------------------------------------------------X EDMOND C. CHAKMAKIAN, an attorney duly admitted to practice law before the courts ofthe State ofNew York, does hereby affirm the following to be true under the penalties of perjury, pursuant to CPLR § 2106: 1. I am the for Naci Uzeyiroglu and Acelya in the above- attorney plaintiffs, Uzeyiroglu, captioned action, and I am familiar with the facts and circumstances stated herein, based on my review of the file kept in this matter and my handling of the case thus far for plaintiffs. 2. I submit this affirmation in reply to the respective affirmation served by defendant's plaintiffs' counsel in opposition to the motion for summary judgment. Simply stated, the opposing affirmation fails to raise any question of fact, nor demonstrate why plaintiffs are not entitled to have their motion granted. 3. The defendant's attempt to create a feigned issue of fact notwithstanding, the undisputed "construction" fact remains that plaintiff was engaged in as said term defined by New York State Labor Law § 240(1) and, as such, he isentitled to the mandated protection of the New York State Labor Law. Plaintiff, at the time of his accident, was working on an eight-foot, A-frame ladder, unfastening bolts from a beam when the column on which the beam was affixed to "slid out", state' propelling the plaintiff and the ladder some twenty (20) feet to the ground below. As the s 1 1 of 6 FILED: NEW YORK COUNTY CLERK 04/09/2018 12:57 PM INDEX NO. 157947/2015 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 04/09/2018 highest court has ruled, "the single decisive question is whether plaintiffs injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically differential" significant elevation (Runner v. New York Stock Exchange, 13 NY3d 599, 603 [2009]). In the case at itis beyond dispute that plaintiff's injuries were caused an elevation- bar, by related risk, and that no adequate safety device was provided to him. Thus, the liability mandated by New York State Labor Law § 240(1) attaches as a matter of law. Estate" witness' 4. Much like defendant, Edler Estate Care Inc.'s (hereinafter, "Edler Estate") deposition testimony, defendant's affirmation attempts to cloud the issues as to whether or not plaintiffs' Edler Estate was the General Contractor on the subject jobsite. As set forth in attorney's Affirmation in Support, however, based upon the facts adduced at the depositions, Edler Estate plaintiffs' was, in fact, the General Contractor as a matter of law. As more fully set forth in attorney's Affirmation in Support, Mr. Edler was present on the jobsite every day to supervise the project, was responsible for coordinating the various trades/subcontractors, had the ability to stop work on the site if an unsafe condition arose, held weekly on-site meetings, took progress photographs and opened and closed the site every work day. Further, the owner, Jon P. Vaccari and Edler Estate entered into a contract with Edler Estate being responsible for "Site Supervision work." and construction 5. The assertion made by John T. Gorton, Esq. in his Affirmation in Opposition that, "[P]laintiff has not cited a single NYCRR self-executing regulation that was allegedly violated accident" that proximately caused plaintiffs is puzzling to say the least. In point of fact, in plaintiffs' Memorandum of Law on page 5, a violation of NYCRR § 23-1.21 (ladders and ladderways) is cited. Plaintiff's accident was caused due to the ladder he was working on falling as itwas not properly placed, or "footed", in any way, making the failure to provide the safety 2 2 of 6 FILED: NEW YORK COUNTY CLERK 04/09/2018 12:57 PM INDEX NO. 157947/2015 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 04/09/2018 device (safety net and/or safety harness and/or lanyard and/or properly placed ladder) the proximate cause of the accident. herring" 6. In any event, the issue is a "red as a violation of the Industrial Code in not required in a Labor Law § 240(1) cause of action. The relevant inquiry is whether the plaintiff was exposed to the extraordinary risks resulting from him working at an elevated height. The fact remains that the courts have routinely ruled in favor of plaintiffs for summary judgment in Labor Law § 240(1) cases with facts similar to the one at bar, i.e.,accidents due to the improper placement of a device, like an unsecured ladder. See, Baugh v. New York City School Construction Authority, 140 AD3d [2nd (" 1104 Dept. 2016] plaintiff made a prima facie showing of his entitlement to judgment as a matter of law on the issue of liability under that statute by showing that, although he was provided with a ladder, ...the ladder was not secured so as to prevent itand him from falling."); Seferovic [2nd (" v. Atlantic Real Estate Holdings, LLC, 127 AD3d 1058, 1059 Dept. 2015] plaintiffs established their prima facie entitlement to judgment... on the cause of action alleging a violation of Labor Law § 240(1) by submitting evidence that the ladder was unsecured and twisted out from under the injured plaintiff... causing him to fall."; Purcell v. Visiting Nurses Foundation Inc., 127 [1st AD3d 572, 573 Dept. 2015] ("the ladder was not 'so... placed... as to give proper protection to' plaintiff' plaintiff"). 7. Further, the fact that plaintiff took direction from his foreman bears no consequence to plaintiff's claims under the Labor Law as defendant's liability stems from itsnondelegable duty as the General Contractor. The Appellate Division, First Department held in Montalvo v. J. [lSt Petrocelli Construction, Inc., 8 AD3d 173, 780 N.Y.S.2d 558 Dept. 2004] that the "fact that liability." general contractor did not supervise or control work of journeyman did not preclude 8. Despite defendant's attempt to create same, plaintiffs maintain that no questions of fact 3 3 of 6 FILED: NEW YORK COUNTY CLERK 04/09/2018 12:57 PM INDEX NO. 157947/2015 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 04/09/2018 exist as to their Labor Law § 240(1) claim. It isclear that plaintiff was employed and engaged in construction, was subject to an elevation related risk and was not provided with the proper safety device(s). As recently held in Fuger v. Amsterdam House for Continuing Care Retirement [1st Community, Inc., 117 AD3d 649 Dept 2014], plaintiffs should be granted summary judgment under Labor Law § 240(1) when evidence is provided that plaintiff was injured in a fall from an defendants' elevation risk, proximately caused by failure to equip him with safety devices and failure to provide adequate protection. Further, "It is well settled that [the] failure to properly secure a ladder, to ensure that itremain steady and erect while being used, constitutes a violation 240(1)." of Labor Law § (See, Kijak v. 330 Madison Avenue Corp.,.,251 AD2d 152, 153, 675 214th N.Y.S.2d 341, citing Schultz v. 585 W. St. Owners Corp.,.,228 AD2d 381, 644 N.Y.S.2d 722 [1st Dept 1996]). plaintiffs' 9. It remains position that the facts set forth herein mandate a finding of liability against defendant Edler Estate as the plaintiff's injuries being caused by a fall from an unsupported and improperly placed ladder, because of the failure to provide him with the appropriate safety device(s), presents a classic case of Labor Law § 240(1) liability.In addition, because there is no question in the case at bar that there were violations of § 240(1) that proximately caused the unsupported and improperly placed ladder to fall, propelling plaintiff to the ground with it, summary judgment against defendant Edler Estate on the issue of liability is warranted. CONCLUSION Based upon the foregoing, itis respectfully requested that thisCourt issue an Order pursuant to CPLR § 3212, granting partial summary judgment in favor of plaintiffs and against plaintiffs' defendant, Edler Estate, on the issue of liability as to Labor Law § cause of 240(1) action, and granting such other and further relief as this Court deems just, equitable, and proper. plaintiffs' WHEREFORE, motion should be granted in itsentirety. 4 4 of 6 FILED: NEW YORK COUNTY CLERK 04/09/2018 12:57 PM INDEX NO. 157947/2015 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 04/09/2018 Dated: Hauppauge, April 9, 2018 New York r EDMO 6 . CHAKMAKIAN 5 5 of 6 FILED: NEW YORK COUNTY CLERK 04/09/2018 12:57 PM INDEX NO. 157947/2015 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 04/09/2018 Index No.: 157847/15 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK NACI UZEYIROGLU and ACELYA UZEYIROGLU, Plaintiffs, -against- EDLER ESTATE CARE INC., JON P. VACCARI and STEPHEN FLEMING, Defendants. REPLY AFFIRMATION From: THE LAW OFFICES OF EDMOND C. CHAKMAKIAN, P.C. 200 MOTOR PARKWAY, SUITE A3 HAUPPAUGE, NEW YORK 11788 (631) 232-6600, (631) 232-1432 fax Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of the State of New York, certifies that, upon information and belief and reasonable inquiry, the contentions contained in the annexed document are not frivolous. Dated: Hauppauge, New York April 9, 2018 6 of 6