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ARD ih DV INDEX NO. E156323/2015
OUN 08
NYSCEF BOC. NO. 9 RECEIVED NYSCEF: 01/08/2016
STATE OF NEW YORK
SUPREME COURT: COUNTY OF NIAGARA
FEISS OCI IIIT III I TIS IIIT TTS a teh tt
WAYNE DEANE,
Plaintiff, ATTORNEY’S AFFIRMATION IN
SUPPORT OF PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT
INDEX NO: E156323/2015
ERIE CANAL HARBOR DEVELOPMENT
CORPORATION, HARBOR DISTRICT
ASSOCIATES, LLC, BENDERSON
DEVELOPMENT COMPANY, LLC,
Defendants.
FEE IIIS III III I TIS III IIIT II SII IA
|, Nicholas J. Shemik, Esq., do hereby subscribe and affirm the following under
the penalty of perjury:
1 | am an attorney duly admitted to practice law in the State of New York.
2 | am an associate attorney of The Dietrich Law Firm P.C., attorneys for the
plaintiff.
1 am fully familiar with the facts and circumstances surrounding this action.
| submit this Affirmation in Support of the Plaintiff's Motion for Summary
Judgment on the issue of liability of the defendants, on the grounds that a
violation of §240 of the New York State Labor Law has been established as a
matter of law and that no factual issue regarding the liability of the defendants
remains to be tried in this case.
oe
The Dietrich Law Firm P.C.
1323 North Forest Road
Williamsville, NY 14221
5. The plaintiff commenced this action against the defendants for, among other
things, a violation of §240(1) of the New York State Labor Law. See the
Summons and the Complaint attached hereto and made a part hereof as Exhibit
A. The defendants served an Answer to the Complaint which is attached hereto
and made a part hereof as Exhibit B. The plaintiff served responses to the
Verified Bill of Particulars which are attached hereto and made a part hereof as
Exhibit C. The deposition of the plaintiff, Wayne Deane, was taken on
December 23, 2015 and a copy of said transcript is attached hereto and made a
part hereof as Exhibit D.
On August 15, 2012, the date on which this accident occurred, §240(1) of the
New York State Labor Law read in pertinent part as follows:
Section 240. Scaffolding and other devices for use of employees.
1
All contractors and owners and their agents, except
owners of one (1) and two (2) family dwellings who contract
for but do not direct or control the work, in the erection,
demolition, repairing, altering, painting, cleaning or pointing
of a building or structure shall furnish or erect, or cause to be
furnished or erected for the purpose of such labor,
scaffolding, hoists, stays, ladders, slings, hangers, blocks,
pulleys, braces, irons, ropes, and other devices which should
be so constructed, placed and operated as to give proper
protection to a person so employed...
On or about August 15, 2012 the defendant Erie Canal Harbor Development
Corporation was the owner of the premises commonly known as The Donovan
Building located at 124 Main Street in the City of Buffalo, the County of Erie and
the State of New York (hereinafter known as The Donovan Building).
8. On or about August 15, 2012 the defendant Harbor District Associates, LLC was
o
The Dietrich Law Firm P.C,
1323 North Forest Road
Williamsville, NY 14221
the lessee and/or owner and/or general contractor of The Donovan Building.
On or about August 15, 2012 the defendant Benderson Development Company,
LLC was the property manager and/or owner and/or general contractor of The
Donovan Building.
10.On or about August 15, 2012 the defendant(s) Erie Canal Harbor Development
Corporation, Harbor District Associates, LLC and/or Benderson Development
Company, LLC engaged an entity commonly known as Cambria Construction as
the prime contractor to perform certain work, namely the deconstruction project
at The Donovan Building.
11.On or about August 15, 2012 the plaintiff Wayne Deane was in the course of his
employment as an employee of Cambria Construction performing construction work
on the premises commonly known as The Donovan Building.
12.On or about August 15, 2012, the plaintiff Wayne Deane, while performing his
hired construction duties as set forth in Paragraph 11 above, was seriously
injured as a result of 400 to 500 pounds of concrete pieces being dropped on him
from an elevated work height at the aforementioned premises commonly known
as The Donovan Building.
13.The plaintiff was not provided with any safety devices to prevent the
aforementioned objects, namely 400 to 500 pounds of concrete, from falling onto
him.
14. Due to the falling objects striking the plaintiff, the plaintiff suffered a severe crush
injury of his dominant right hand and sustained 48.975% permanent loss of use
oo
The Dietrich Law Firm P.C.
1323 North Forest Road
Williamsville, NY 14221
of said dominant hand. See The New York State Workers’ Compensation
Board's final decision stating the same which is attached hereto and made a part
hereof as Exhibit E.
15. The plaintiff further suffered the following injuries: acute pain to the dominant
tight hand; abrasions of the dominant right hand; severe swelling and bruising to
the dominant right hand; dominant right hand tenderness even to light touch;
dominant right hand drainage from the overlying hematoma; right wrist and
dominant hand carpal joint sprain and strain; chronic dominant right hand
dysfunction; posttraumatic stiffness of the dominant right hand; severe restricted
range of motion of the dominant right hand; permanent loss of range of motion in
the right hand and loss of full extension at the first interphalangeal joint; closed
transverse fracture of the fourth metacarpal neck of the right hand; C3-4 disc
bulge and/or herniation and/or tear; C4-5 disc hemiation and/or disc bulge and/or
tear; C6-7 disc bulging and/or herniation and/or tear; C7-8 disc bulging and/or
herniation and/or tear; T1-2 disc bulging and/or herniation and/or tear; T2-3 disc
bulging and/or herniation and/or tear; severe head trauma; severe neck trauma;
loss of consciousness; dizziness; headaches; severe neck pain radiating into
bilateral shoulders; severe restricted range of motion of the neck; constant
pressure within the neck; neck pain worsened with leaning over, sitting forward or
walking; straightening of the normal cervical lordosis.
16. There were no safety devices including, but not limited to, harnesses, scaffolding,
hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes or
o
The Dietrich Law Firm P.C.
1323 North Forest Road
Williamsville, NY 14221
other devices which should have been constructed, placed and operate
d as to
give proper protection to the plaintiff.
17. The plaintiff suffered serious, permanent and disabling injuries as a result
of the
falling objects striking the plaintiff.
18.The defendant Erie Canal Harbor Development Corporation as the owner of
the
work site where the plaintiff was struck with falling objects is liable under §240(1)
of the New York State Labor Law.
19. The defendant Harbor District Associates, LLC as the owner and/or lessee and/or
general contractor of the work site where the plaintiff was struck with falling
objects is liable under §240(1) of the New York State Labor Law.
20.The defendant Benderson Development Company, LLC as the owner and/or
lessee and/or general contractor of the work site where the plaintiff was struck
with falling objects is liable under §240(1) of the New York State Labor Law.
21.Section 240(1) of the New York State Labor Law imposes an absolute non-
delegable duty upon all owners, general contractors and their agents engaged in
the erection, demolition, repairing, altering, painting, cleaning or pointing of a
building or structure to, among other things, furnish or erect, or cause to be
furnished or erected scaffolding, hoists, stays, ladders, slings, hangers, blocks,
pulleys, braces, irons, ropes, and other devices which are to be so constructed,
placed and operated as to give proper protection from the dangers of falling
objects from an elevated work surface.
22.A breach of the non-delegable duties enumerated in §240(1) of the New York
wo
The Dietrich Law Firm P.C.
1323 North Forest Road
Williamsville, NY 14221
State Labor Law gives rise to absolute liability on the part of the owner,
general
contractor and their agents, regardless of whether they exercise any supervi
sion
or control.
23.To establish liability under §240(1), the injured worker need only show that
the
statute was violated and that the violation was a proximate cause of the plaintiff's
injury.
24.When the plaintiff was caused to be struck with falling objects from an elevated
work area on August 15, 2012, §240(1) was violated because there were no
safety devices provided or placed to prevent the plaintiff from being struck by
said falling objects while performing his construction duties.
25. The defendants failed to provide or place adequate safety devices to prevent the
plaintiff from being struck by the aforementioned falling objects from an elevated
work surface. Clearly, the plaintiff being struck by the aforementioned objects
and the subsequent injuries were the direct result of an elevation-related risk.
This is evidenced by the injuries that the plaintiff suffered having flowed directly
from the force of gravity from the falling objects upon the plaintiff's person. If the
core objective of §240(1) had been met, the plaintiff would have been provided
with safety devices which would have been so constructed, placed and operated
as to give the plaintiff proper protection and the plaintiff would not have been
struck by the falling objects and sustained injuries.
26.There is no question that a contributing cause of the plaintiff's injuries was the
fact that there were no safety devices provided and placed at the work site to
The Dietrich Law Firm P.C.
1323 North Forest Road
Williamsville, NY 14221
prevent the plaintiff from being struck by the falling objects from the elevated
work area. Because there is no question as to any of the issues for which a trial
could be necessary, as a matter of law, the plaintiff is entitled to summary
judgment under §240(1) of the Labor Law on the issue of the liability of the
defendants.
WHEREFORE, the plaintiff respectfully requests that this Court grant summary
judgment against the defendants with respect to the issue of liability based upon a
violation of §240(1) of the New York State Labor Law and that the plaintiff be granted
such further relief as this Court deems just and proper.
Dated: January 6, 2015
ZS “Nicholas {Shemik, Esq.
Attorneys for Plaintiff
1323 North Forest Road
Williamsville, New York 14221
(716) 839-3939
TO: GOLDBERG SEGALLA LLP
By: Albert J. D’Aquino, Esq.
Attorneys for the Defendants
665 Main Street — Suite 400
Buffalo, New York 14203
(716) 566-5400
wo
The Dietrich Law Firm P.C.
1323 North Forest Road
Williamsville, NY 14221
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ARD ih DV INDEX NO. E156323/2015 OUN 08 NYSCEF BOC. NO. 9 RECEIVED NYSCEF: 01/08/2016 STATE OF NEW YORK SUPREME COURT: COUNTY OF NIAGARA FEISS OCI IIIT III I TIS IIIT TTS a teh tt WAYNE DEANE, Plaintiff, ATTORNEY’S AFFIRMATION IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT INDEX NO: E156323/2015 ERIE CANAL HARBOR DEVELOPMENT CORPORATION, HARBOR DISTRICT ASSOCIATES, LLC, BENDERSON DEVELOPMENT COMPANY, LLC, Defendants. FEE IIIS III III I TIS III IIIT II SII IA |, Nicholas J. Shemik, Esq., do hereby subscribe and affirm the following under the penalty of perjury: 1 | am an attorney duly admitted to practice law in the State of New York. 2 | am an associate attorney of The Dietrich Law Firm P.C., attorneys for the plaintiff. 1 am fully familiar with the facts and circumstances surrounding this action. | submit this Affirmation in Support of the Plaintiff's Motion for Summary Judgment on the issue of liability of the defendants, on the grounds that a violation of §240 of the New York State Labor Law has been established as a matter of law and that no factual issue regarding the liability of the defendants remains to be tried in this case. oe The Dietrich Law Firm P.C. 1323 North Forest Road Williamsville, NY 14221 5. The plaintiff commenced this action against the defendants for, among other things, a violation of §240(1) of the New York State Labor Law. See the Summons and the Complaint attached hereto and made a part hereof as Exhibit A. The defendants served an Answer to the Complaint which is attached hereto and made a part hereof as Exhibit B. The plaintiff served responses to the Verified Bill of Particulars which are attached hereto and made a part hereof as Exhibit C. The deposition of the plaintiff, Wayne Deane, was taken on December 23, 2015 and a copy of said transcript is attached hereto and made a part hereof as Exhibit D. On August 15, 2012, the date on which this accident occurred, §240(1) of the New York State Labor Law read in pertinent part as follows: Section 240. Scaffolding and other devices for use of employees. 1 All contractors and owners and their agents, except owners of one (1) and two (2) family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the purpose of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which should be so constructed, placed and operated as to give proper protection to a person so employed... On or about August 15, 2012 the defendant Erie Canal Harbor Development Corporation was the owner of the premises commonly known as The Donovan Building located at 124 Main Street in the City of Buffalo, the County of Erie and the State of New York (hereinafter known as The Donovan Building). 8. On or about August 15, 2012 the defendant Harbor District Associates, LLC was o The Dietrich Law Firm P.C, 1323 North Forest Road Williamsville, NY 14221 the lessee and/or owner and/or general contractor of The Donovan Building. On or about August 15, 2012 the defendant Benderson Development Company, LLC was the property manager and/or owner and/or general contractor of The Donovan Building. 10.On or about August 15, 2012 the defendant(s) Erie Canal Harbor Development Corporation, Harbor District Associates, LLC and/or Benderson Development Company, LLC engaged an entity commonly known as Cambria Construction as the prime contractor to perform certain work, namely the deconstruction project at The Donovan Building. 11.On or about August 15, 2012 the plaintiff Wayne Deane was in the course of his employment as an employee of Cambria Construction performing construction work on the premises commonly known as The Donovan Building. 12.On or about August 15, 2012, the plaintiff Wayne Deane, while performing his hired construction duties as set forth in Paragraph 11 above, was seriously injured as a result of 400 to 500 pounds of concrete pieces being dropped on him from an elevated work height at the aforementioned premises commonly known as The Donovan Building. 13.The plaintiff was not provided with any safety devices to prevent the aforementioned objects, namely 400 to 500 pounds of concrete, from falling onto him. 14. Due to the falling objects striking the plaintiff, the plaintiff suffered a severe crush injury of his dominant right hand and sustained 48.975% permanent loss of use oo The Dietrich Law Firm P.C. 1323 North Forest Road Williamsville, NY 14221 of said dominant hand. See The New York State Workers’ Compensation Board's final decision stating the same which is attached hereto and made a part hereof as Exhibit E. 15. The plaintiff further suffered the following injuries: acute pain to the dominant tight hand; abrasions of the dominant right hand; severe swelling and bruising to the dominant right hand; dominant right hand tenderness even to light touch; dominant right hand drainage from the overlying hematoma; right wrist and dominant hand carpal joint sprain and strain; chronic dominant right hand dysfunction; posttraumatic stiffness of the dominant right hand; severe restricted range of motion of the dominant right hand; permanent loss of range of motion in the right hand and loss of full extension at the first interphalangeal joint; closed transverse fracture of the fourth metacarpal neck of the right hand; C3-4 disc bulge and/or herniation and/or tear; C4-5 disc hemiation and/or disc bulge and/or tear; C6-7 disc bulging and/or herniation and/or tear; C7-8 disc bulging and/or herniation and/or tear; T1-2 disc bulging and/or herniation and/or tear; T2-3 disc bulging and/or herniation and/or tear; severe head trauma; severe neck trauma; loss of consciousness; dizziness; headaches; severe neck pain radiating into bilateral shoulders; severe restricted range of motion of the neck; constant pressure within the neck; neck pain worsened with leaning over, sitting forward or walking; straightening of the normal cervical lordosis. 16. There were no safety devices including, but not limited to, harnesses, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes or o The Dietrich Law Firm P.C. 1323 North Forest Road Williamsville, NY 14221 other devices which should have been constructed, placed and operate d as to give proper protection to the plaintiff. 17. The plaintiff suffered serious, permanent and disabling injuries as a result of the falling objects striking the plaintiff. 18.The defendant Erie Canal Harbor Development Corporation as the owner of the work site where the plaintiff was struck with falling objects is liable under §240(1) of the New York State Labor Law. 19. The defendant Harbor District Associates, LLC as the owner and/or lessee and/or general contractor of the work site where the plaintiff was struck with falling objects is liable under §240(1) of the New York State Labor Law. 20.The defendant Benderson Development Company, LLC as the owner and/or lessee and/or general contractor of the work site where the plaintiff was struck with falling objects is liable under §240(1) of the New York State Labor Law. 21.Section 240(1) of the New York State Labor Law imposes an absolute non- delegable duty upon all owners, general contractors and their agents engaged in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure to, among other things, furnish or erect, or cause to be furnished or erected scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which are to be so constructed, placed and operated as to give proper protection from the dangers of falling objects from an elevated work surface. 22.A breach of the non-delegable duties enumerated in §240(1) of the New York wo The Dietrich Law Firm P.C. 1323 North Forest Road Williamsville, NY 14221 State Labor Law gives rise to absolute liability on the part of the owner, general contractor and their agents, regardless of whether they exercise any supervi sion or control. 23.To establish liability under §240(1), the injured worker need only show that the statute was violated and that the violation was a proximate cause of the plaintiff's injury. 24.When the plaintiff was caused to be struck with falling objects from an elevated work area on August 15, 2012, §240(1) was violated because there were no safety devices provided or placed to prevent the plaintiff from being struck by said falling objects while performing his construction duties. 25. The defendants failed to provide or place adequate safety devices to prevent the plaintiff from being struck by the aforementioned falling objects from an elevated work surface. Clearly, the plaintiff being struck by the aforementioned objects and the subsequent injuries were the direct result of an elevation-related risk. This is evidenced by the injuries that the plaintiff suffered having flowed directly from the force of gravity from the falling objects upon the plaintiff's person. If the core objective of §240(1) had been met, the plaintiff would have been provided with safety devices which would have been so constructed, placed and operated as to give the plaintiff proper protection and the plaintiff would not have been struck by the falling objects and sustained injuries. 26.There is no question that a contributing cause of the plaintiff's injuries was the fact that there were no safety devices provided and placed at the work site to The Dietrich Law Firm P.C. 1323 North Forest Road Williamsville, NY 14221 prevent the plaintiff from being struck by the falling objects from the elevated work area. Because there is no question as to any of the issues for which a trial could be necessary, as a matter of law, the plaintiff is entitled to summary judgment under §240(1) of the Labor Law on the issue of the liability of the defendants. WHEREFORE, the plaintiff respectfully requests that this Court grant summary judgment against the defendants with respect to the issue of liability based upon a violation of §240(1) of the New York State Labor Law and that the plaintiff be granted such further relief as this Court deems just and proper. Dated: January 6, 2015 ZS “Nicholas {Shemik, Esq. Attorneys for Plaintiff 1323 North Forest Road Williamsville, New York 14221 (716) 839-3939 TO: GOLDBERG SEGALLA LLP By: Albert J. D’Aquino, Esq. Attorneys for the Defendants 665 Main Street — Suite 400 Buffalo, New York 14203 (716) 566-5400 wo The Dietrich Law Firm P.C. 1323 North Forest Road Williamsville, NY 14221