FILED: APPELLATE DIVISION - 2ND DEPT 09/21/2023 01:08 PM
`NYSCEF DOC. NO. 25
`RECEIVED NYSCEF: 09/21/2023
`
`2023-02328
`
`To Be Argued By:
`Adrienne Yaron
`Time Requested: 15 Minutes
`
`New York Supreme Court
`
`APPELLATE DIVISION — SECOND DEPARTMENT
`
`>> >>
`
`YESTER CASTILLO,
`
`against
`
`1248 ASSOCIATES LLC,
`
`Plaintiff-Respondent,
`
`Defendant-Appellant.
`
`Docket No.
`
`2023- 02328
`
`REPLY BRIEF FOR DEFENDANT-APPELLANT
`
`CULLEN AND DYKMAN LLP
`Attorneys for Defendant-Appellant
`One Battery Park Plaza, 34th Floor
`New York, New York 10004
`212-732-2000
`ayaron@cullenllp.com
`
`Of Counsel:
`Olivia M. Gross
`Adrienne Yaron
`Erik E. Harris
`
`Kings County Clerk’s Index No. 522504/2018
`
`

`

`
`
`TABLE OF CONTENTS
`
`TABLE OF CONTENTS ........................................................................................... 1
`
`TABLE OF AUTHORITIES ..................................................................................... 2
`
`ARGUMENT ............................................................................................................. 4
`
`A.
`
`LABOR LAW § 240(1) WAS NOT VIOLATED .................................. 4
`
`1.
`
`2.
`
`3.
`
`1.
`
`2.
`
`B.
`
`Labor Law 240 was not violated because there is no enumerated
`device that could have been used to prevent this accident ............ 4
`
`Plaintiff Has Not Disputed that Securing the Plywood would
`have Defeated the Goal of the Work being Performed and
`therefore Labor Law 240 was not violated ................................... 9
`
`The Case Law Cited By Plaintiff is Inapplicable to these facts .. 12
`
`PLAINTIFF’S PROCEDURAL OBJECTIONS ARE WITHOUT
`MERIT .............................................................................................. 17
`
`Plaintiff Has Not Disputed that the DOB Hearing Information is
`Admissible ................................................................................... 17
`
`Plaintiff Has Not Disputed that an Expert May be Disclosed at
`Any Time up to 30 Days Before Trial and his Affidavit
`Sufficiently Establishes his Credentials as an Expert ................. 18
`
`CONCLUSION ........................................................................................................ 22
`
`
`
`1
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`
`
`

`

`
`
`Cases
`
`TABLE OF AUTHORITIES
`
`Abdelall v. Niagara Frontier Transit Metro Sys., Inc., 194 A.D.3d 1375 (4
`Dept 2021) .......................................................................................................... 20
`
`Arnaud v. 140 Edgecomb LLC, 83 A.D.3d 507 (1 Dept 2011) ............................ 13
`
`Begley v. City of New York, 111 A.D.3d 5 (2 Dept 2013) ................................... 18
`
`Belcastro v. Hewlett-Woodmere Union Free School District, 286 A.d.2d 744
`(2 Dept 2001) ...................................................................................................... 16
`
`Cabezas v. Consolidated Edison, 296 A.D.2d 522 (2 Dept 2002) ........................ 16
`
`Chalu v. Hariraj, 304 A.D.2d 515 (2 Dept 2003) .................................................... 8
`
`Escobar v. Safi, 150 A.D.3d 1081 (2 Dept 2017) .................................................. 13
`
`Fabrizi v. 1095 Ave. of Americas, L.L.C., 22 N.Y.3d 658 (2014) .......................... 5
`
`Fried v. Always Green, LLC, 77 A.D.3d 788 (2 Dept 2010) ................................ 16
`
`Gagliardi v. Am. Suzuki Motor Corp., 303 A.D.2d 718 (2 Dept 2003) ................ 20
`
`Gutierrez v. Harco Consultants Corp., 157 A.D.3d 537 (1 Dept 2018) ............... 14
`
`Hambsch v. New York City Transit Auth., 63 N.Y.2d 723 (1984) ....................... 20
`
`Haxhia v Varanelli, 170 AD3d 679 (2 Dept 2019) .................................................. 8
`
`Hill v. Acies Grp., LLC, 122 A.D.3d 428 (1 Dept 2014) ..................................... 13
`
`Jimenez v. Gasque, 111 A.D.3d 675 (2 Dept 2013) .............................................. 20
`
`Kuehne & Nagel, Inc. v. Baiden, 36 N.Y.2d 539 (1975) ...................................... 11
`
`Metus v. Ladies Mile Inc., 51 A.D.3d 537 (1 Dept 2008) ..................................... 13
`
`Millette v. Tishman Constr. Corp., 2014 WL 12659834 (Sup. Kings 2014) ........ 15
`
`Moncayo v. Curtis Partition Corp., 106 A.D.3d 963 (2 Dept 2013) ..................... 16
`
`Narducci v. Manhasset Bay, 96 N.Y.2d 259 (2001) ........................................ 4, 5, 8
`
`Rivers v. Birnbaum, 102 A.D.3d 26 (2 Dept 2012) ............................................... 18
`
`Rutkowski v. New York Convention Ctr. Dev. Corp., 146 A.D.3d 686 (1
`Dept 2017) ......................................................................................................... 14
`
`Salazar v. Novalex Contr. Corp., 18 N.Y.3d 134 (2011) ...................................... 11
`
`2
`
`
`
`

`

`
`
`Schneider Fuel Oil v. DeGennaro, 238 A.D.2d 495 (2 Dept 1997) ...................... 11
`
`Stawski v. Pasternack, Popish & Reif, P.C., 54 A.D.3d 619 (1 Dept 2008) ......... 13
`
`Tyler v. Kawaguchi, Inc., No. 00 CV 6366, 2006 WL 581184 (W.D.N.Y.
`2006) ................................................................................................................... 19
`
`Wilinski v. 334 E. 92nd Hous. Dev. Corp., 18 N.Y.3d 1 (2011) ............................ 5
`
`Zimmer v. Chemung Cnty. Performing Arts, Inc., 65 N.Y.2d 513 (1985) ............. 4
`
`Statutes
`
`N.Y.S. Civil Practice Law and Rules 3l0l(d) ........................................................... 18
`
`N.Y.S. Labor Law § 240(1) ............................................................................. passim
`
`
`
`
`
`3
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`

`

`
`
`
`
`ARGUMENT
`
`A.
`
`LABOR LAW § 240(1) WAS NOT VIOLATED
`
`
`Labor Law 240 was not violated because there is no enumerated
`
`device that could have been used to prevent this accident without defeating the
`
`goal of the work being performed. This accident was an ordinary construction
`
`hazard not within the purview of Labor Law 240.
`
`1.
`Labor Law 240 was not violated because there is no
`enumerated device that could have been used to prevent this
`accident
`
`Plaintiff’s reliance on the 1985 case Zimmer v. Chemung Cnty.
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`Performing Arts, Inc., 65 N.Y.2d 513 (1985) is misplaced as Zimmer is no longer
`
`good law on the relevant issue.
`
`Subsequent to Zimmer, the Court of Appeals has on numerous
`
`occasions held that in order for Labor Law 240(1) to apply, a plaintiff must also
`
`show that the object fell “because of the absence or inadequacy of a safety device
`
`of the kind enumerated in the statute.” Narducci v. Manhasset Bay, 96 N.Y.2d
`
`259, 260 (2001). The Court of Appeals has made clear that Labor Law § 240 does
`
`not apply where it is “not a situation where a hoisting or securing device of the
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`kind enumerated in the statute would have been necessary or even expected.”
`
`4
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`
`
`

`

`
`
`Narducci v. Manhasset Bay Assocs., 96 N.Y.2d 259, 268 (2001). The “absence of
`
`a causal nexus between the worker’s injury and a lack or failure of a device
`
`prescribed by section 240 (1) mandate[s] a finding against liability.” Wilinski v.
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`334 E. 92nd Hous. Dev. Corp., 18 N.Y.3d 1, 9 (2011) citing, Misseritti v. Mark IV
`
`Constr., 86 N.Y.2d 487, 490-491, (1995); Narducci v. Manhasset Bay 96 N.Y.2d
`
`259, 268-269 (2001). In Fabrizi v. 1095 Ave. of Americas, L.L.C., 22 N.Y.3d 658
`
`(2014), the Court of Appeals explicitly rejected the position taken by plaintiff
`
`herein, stating:
`
`Contrary to the dissent's contention, section 240(1) does not
`automatically apply simply because an object fell and injured a
`worker; “[a] plaintiff must show that the object fell ... because
`of the absence or inadequacy of a safety device of the kind
`enumerated in the statute.
`
`
`Id. At 663 (emphasis original).
`
`Most importantly, “Whether plaintiff's injuries were proximately
`
`caused by the lack of a safety device of the kind required by the statute is an issue
`
`for a trier of fact to determine.” Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp.,
`
`18 N.Y.3d 1, 11 (2011)(emphasis added).
`
`In this case, all of the expert evidence and witness testimony
`
`demonstrates that there was no lack or failure of any enumerated device that would
`
`be necessary or expected for the type of work plaintiff was performing. Plaintiff
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`5
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`

`

`
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`himself testified he had always performed the task in this manner over the 20 years
`
`he had been doing this work, handing up single 20-30-pound plywood sheets
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`between workers and without the use of any enumerated device. R. 227-228; R.
`
`254-255. Clearly, no such device was necessary or expected by plaintiff or anyone
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`else!
`
`Both Mr. Brong (Rinaldi’s project manager) and Mr. Barnett (a
`
`certified safety professional) agreed that the activity being performed by Plaintiff,
`
`namely lifting a sheet of plywood to a co-worker on a scaffold several feet above,
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`did not require the use of a safety device such as a hoist, pulley, or sling. Mr.
`
`Brong averred that the plywood being used in such a manner would not be secured
`
`and having workers pass plywood sheets to each other to build the roof of an
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`elevator shaft is the method employed by Rinaldi Builders Inc., and that the
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`plywood did not need to be secured and in fact could not be secured because doing
`
`so would prevent the work from being accomplished:
`
`The activity being performed by Mr. Castillo did not require the
`use of any safety devices such as a hoist, pulley, or sling, and
`Rinaldi Builders customarily has its workers pass plywood by
`hand to each other in similar situations…
`
`The plywood sheet did not require securing because it was
`among the materials used to build the walls of the elevator shaft
`which was the task that Mr. Castillo and his co-worker were
`performing when the accident occurred. The plywood was
`being passed and securing it would have defeated the purpose
`
`6
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`
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`

`

`
`
`of the work being performed. Simply put, the work could not be
`performed if the plywood was secured
`
`
`R. 259-260.
`
`Similarly, Mr. Barnett opined:
`
`The plywood sheet involved in the accident did not require
`securing and would not normally be secured situation because
`it was among the materials used to build the walls of the
`elevator shaft which was the task that Plaintiff and his co-
`worker were performing when the accident occurred …
`Plaintiff confirmed that he had built elevator shafts using the
`same method as the one used on this project for twenty years
`and that his work did not involve ropes or pulleys (see R. 227-
`228; R. 254-255).
`
`
`R. 970-971.
`
`
`Plaintiff even differentiated between his work materials and those
`
`requiring securing when he testified “[the] people that use the pulleys, they’re
`
`doing another thing. They usually use to pull up other things that you have to tie up
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`and things and we don’t really do any of that.” R. 255-256 (emphasis added).
`
`Contrary to plaintiff’s counsel’s assertion (Resp. Brief p. 24), plaintiff
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`himself never testified that they could or should have used ropes or pulleys for this
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`work. This claim – directly contradictory to his own testimony quoted above – was
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`submitted for the first time in opposition to Defendant’s motion for summary
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`judgment, in a belated affidavit which counsel has not disputed on appeal was
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`7
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`
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`feigned, self-serving, and intended solely to avoid the consequences of his earlier
`
`testimony and is therefore legally insufficient to withstand summary judgment and
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`should never have been considered by the motion court. See Chalu v. Hariraj, 304
`
`A.D.2d 515, 516 (2 Dept 2003) (“[this] vague, unsupported, self-serving allegation
`
`appears to be a feigned issue, raised by the plaintiff for the first time in response to
`
`a motion for summary judgment to avoid the consequences of his earlier
`
`admissions”); Haxhia v Varanelli, 170 AD3d 679 (2 Dept 2019).
`
`
`
`Plaintiff cannot be permitted to escape the consequences of his own
`
`deposition testimony wherein he acknowledged never using any ropes or pulleys or
`
`other devices in the 20 years he worked in the construction industry, and that no
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`such devices were necessary or expected for this work. R. 228-229 and 254-255.
`
`Mr. Brong corroborated this testimony stating that Rinaldi workers moved the
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`materials by hand in similar situations. R. 959-60. This was an ordinary workplace
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`hazard where none of the enumerated devices were necessary or expected, as
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`plaintiff himself admitted at deposition.
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` “[N]ot every object that falls on a worker, gives rise to the
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`extraordinary protections of Labor Law § 240(1)”. Narducci v. Manhasset Bay
`
`Assoc., 96 N.Y.2d 259, 267 (2001). As set forth above, none of the enumerated
`
`devices described by Labor Law 240(1) were necessary or expected in this
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`8
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`
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`situation, and Defendant is entitled to summary judgment dismissing this cause of
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`action as a matter of law. At the very least, the conflicting testimony on this issue
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`(indeed, the conflict just between plaintiff’s deposition testimony and his
`
`subsequent self-serving affidavit alone!) is sufficient to raise a question of fact
`
`which the Court of Appeals made clear in Wilinski, supra, is for the jury to decide.
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`Accordingly, this Court should reverse the motion court and grant
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`summary judgment to Defendants-Appellants, or at the very least deny plaintiff’s
`
`motion on the question of fact and remand the case for trial.
`
`
`
`2.
`Plaintiff Has Not Disputed that Securing the Plywood would
`have Defeated the Goal of the Work being Performed and
`therefore Labor Law 240 was not violated
`
`
`
`It is undisputed that the plywood at issue was in the process of being
`
`positioned into place and installed so as to finish the elevator shaft. It is similarly
`
`undisputed that the plywood had to be lifted and moved in order to be correctly
`
`positioned. As plaintiff testified:
`
`A It was the part of the finalization of the elevator. So once you get
`up to the top you have to duplicate that space at the top of the
`elevator.
`
`…
`Q What was Ismail doing ten feet above you?
`
`9
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`

`

`
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`A He was just finishing up the walls with the plywood.
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`Id. at pp. 50-52 (emphasis added).
`
`
`There is further evidence that this work could not have been
`
`performed if the plywood had been secured by pulleys and ropes. As Mr. Brong
`
`affirmed:
`
`The plywood was being passed and securing it would have
`defeated the purpose of the work being performed. Simply
`put, the work could not be performed if the plywood was
`secured.
`
`R. 960 (emphasis added).
`
`Similarly, Mr. Barnett opined:
`
`Securing the plywood would have defeated the purpose of the
`work being performed. This is corroborated by Plaintiffs
`testimony that their assigned task was to build the elevator
`shaft's walls (see R. 230-232). Plaintiff confirmed that he had
`built elevator shafts using the same method as the one used on
`this project for twenty years and that his work did not involve
`ropes or pulleys (see R. 227-228; R. 254-255).
`
`R. 970-971 (emphasis added).
`
`Plaintiff has made no argument whatsoever in his respondent’s brief
`
`that this work could have been performed if the plywood was secured, or that there
`
`is any evidence to support such a conclusion. In fact, no such evidence exists.
`
`10
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`
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`“Facts appearing in the movant's papers which the opposing party
`
`does not controvert, may be deemed to be admitted.” Kuehne & Nagel, Inc. v.
`
`Baiden, 36 N.Y.2d 539, 544 (1975). “By not denying the statements made in the
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`affidavit of the [movant]'s president in support of the … motion for summary
`
`judgment, the [opposing party] has admitted [all the relevant facts at issue].
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`Accordingly, the [movant] is entitled to summary judgment.” Schneider Fuel Oil v.
`
`DeGennaro, 238 A.D.2d 495, 496 (2 Dept 1997)(internal citations omitted).
`
`The Court of Appeals has held that that Labor Law §§240(1) and
`
`241(6) “should be construed with a commonsense approach to the realities of the
`
`workplace at issue” Salazar v. Novalex Contr. Corp., 18 N.Y.3d 134 (2011). In
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`particular, the Labor Law is not violated when the action proposed by plaintiff
`
`would have been illogical and “contrary to the objectives of the work plan.” Id.
`
`Put simply, there is no evidence that a single sheet of plywood that
`
`needed to be secured caused this accident. On the contrary, Plaintiff’s testimony is
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`that his co-worker needed to move and position the plywood into place. Labor
`
`Law § 240(1) should be construed with a commonsense approach to the realities of
`
`the workplace at issue. Salazar v. Novalex Contr. Corp., 18 N.Y.3d 134, 140
`
`(2011). In Salazar, the Court noted that it “would be illogical to require an owner
`
`or general contractor to place a protective cover over, or otherwise barricade, a
`
`11
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`

`

`
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`three- or four-foot deep hole when the very goal of the work is to fill that hole with
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`concrete.” Id., 18 N.Y.3d at 140 (emphasis added). Likewise, here, securing the
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`plywood sheet would prevent it from being used to build out the elevator shaft
`
`which is, by Plaintiff’s own admission, the very goal of the work he was
`
`performing when the accident occurred. Plaintiff has not shown how else the task
`
`could have been performed when the plywood was being installed, a fact he does
`
`not address, because there was no other way to perform the task and no safety
`
`device could have been used which would not have defeated the purpose of the
`
`installation. Logic dictates that an item that is by plaintiff’s own estimation no
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`more than 20 pounds – the weight of a grocery bag – does not require hoisting or
`
`securing.
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`The common sense approach to the realities of the worksite at issue
`
`therefore requires a dismissal of the Labor Law §§240(1) and 241(6) causes of
`
`action in this case.
`
`3.
`facts
`
`The Case Law Cited By Plaintiff is Inapplicable to these
`
`None of the cases cited by plaintiff are analogous to these facts. Most
`
`of the cases cited by plaintiff involve situations where an enumerated safety device
`
`was in fact in use and either failed or was removed. The remaining cases he cites
`
`involve very heavy objects which the courts held triggered Labor Law liability due
`
`12
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`

`

`
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`to their weight. None of the cases cited by plaintiff concern a situation such as this
`
`case, in which a lightweight object (less than 20 pounds) was being moved and
`
`positioned and all of the evidence supports a finding that no enumerated device
`
`was necessary or expected and in fact any such securing device would be contrary
`
`to the work.
`
`In Hill v. Acies Grp., LLC, 122 A.D.3d 428 (1 Dept 2014), for
`
`example, the plaintiff was struck by a falling brick because safety netting that had
`
`previously been installed had been removed. Id. At 429. In Arnaud v. 140
`
`Edgecomb LLC, 83 A.D.3d 507 (1 Dept 2011), plaintiff and his co-worker were
`
`using a pulley and ropes to move wood planks from the fourth floor to the second
`
`floor, and these devices failed to secure the plank. Id. At 508. Similarly, in Escobar
`
`v. Safi, 150 A.D.3d 1081 (2 Dept 2017), plaintiff’s co-worker was using ropes to
`
`hoist plywood which failed to secure it. Id. At 1082. In Stawski v. Pasternack,
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`Popish & Reif, P.C., 54 A.D.3d 619 (1 Dept 2008), a cinder block had been cut
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`from the column where plaintiff was working, and was returned to the open cavity
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`from which it had been cut without being cemented or secured in any way. Id. At
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`620. In Metus v. Ladies Mile Inc., 51 A.D.3d 537, 538 (1 Dept 2008), the junior
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`beam that fell was not in the process of being moved or positioned, it was already
`
`in place and simply had not been clamped to the header beam on which it rested.
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`13
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`

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`
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`There is no evidence (or even any argument) in this case that any enumerated
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`device failed or was removed, and therefore all of the above cases are inapposite.
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`The remaining two cases relied on by plaintiff, Rutkowski v. New
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`York Convention Ctr. Dev. Corp., 146 A.D.3d 686, 686 (1 Dept 2017) and
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`Gutierrez v. Harco Consultants Corp., 157 A.D.3d 537, 537 (1 Dept 2018) both
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`involved very heavy objects which the deciding courts explicitly noted supported a
`
`finding of Labor Law 240 liability. In Gutierrez the court noted: “Assuming that
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`the piece of rebar that allegedly struck plaintiff weighed what defendants claimed
`
`it weighed, it still presented an elevation-related risk.” In Rutkowski, the court
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`held: “in view of the weight of the lighting bar, we cannot conclude as a matter of
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`law that the distance it fell was de minimis.”
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`These cases are entirely distinguishable from the instant case. Here,
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`plaintiff himself stated the plywood was only 20-30 pounds, no more than a filled
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`grocery bag, and calling him a “human hoist” does not change the fact that logic
`
`dictates no “hoist” is necessary to lift 20 or 30 pounds. And, here, it was two
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`people lifting that light weight. It is noted that in both Rutkowski and Gutierrez
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`cases there is also no indication that there were any arguments made that no
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`enumerated devices were necessary or expected, or that they were contrary to the
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`objectives of the work.
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`14
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`
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`Rather, the most analogous case to this one is Millette v. Tishman
`
`Constr. Corp., 144 A.D.3d 1113 (2 Dept 2016). In Millette, this Court affirmed an
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`order granting the defendants summary judgment on a cause of action alleging a
`
`violation of Labor Law § 240(1) with circumstances virtually identical to those in
`
`the instant matter. In Millette, workers were framing on the 16th floor of a building
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`when a piece of plywood accidentally fell and struck a plaintiff who was situated
`
`on the 15th floor below. See Id., 2014 WL 12659834 at *1 (N.Y. Sup. Kings 2014).
`
`In arriving at its decision, the lower court noted the following:
`
`the accident happened when a worker dropped the plywood as he
`was about to place it atop the joists. As noted, this activity did not
`require securing and thus was not a falling object under the Labor
`Law. Therefore, this accident was an ordinary incident associated
`with a worksite outside the purview of the Labor Law. Therefore,
`the motion of defendant seeking to dismiss the Labor Law § 240(1)
`cause of action is granted.
`
`Id. at *2 (internal citations omitted, emphasis added).
`
`The plywood here, just like the plywood in Millette, did not require
`
`securing and therefore this was an ordinary incident associated with a worksite and
`
`falls outside of the purview of the Labor Law. Plaintiff testified that his co-worker
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`was lifting a sheet of plywood to the scaffold and accidentally dropped it while
`
`trying to adjust his grip. See R. 236-237 and R. 261-262.
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`15
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`
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`Moreover, plaintiff has not disputed that Plaintiff’s co-worker’s
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`decision to adjust his grip on the plywood sheet was an intervening and
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`superseding event that caused the accident. Plaintiff testified the sheetrock fell
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`because his co-worker “tossed” it:
`
`Q What did your coworker do with the
`plywood after you let go?
`A He did a movement where he wanted to
`throw it up and that's when it fell.
`
`
`R. 261.
`
`Under these circumstances, the Courts have consistently held that
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`Labor Law § 240(1) does not apply. See Moncayo v. Curtis Partition Corp., 106
`
`A.D.3d 963 (2 Dept 2013) (Labor Law § 240[1] did not apply where a plaintiff was
`
`struck by a piece of sheetrock that fell from the third floor of a building); Fried v.
`
`Always Green, LLC, 77 A.D.3d 788 (2 Dept 2010) (bag of construction debris
`
`which was thrown from a roof and struck a plaintiff on the head did not implicate
`
`Labor Law § 240[1]); Cabezas v. Consolidated Edison, 296 A.D.2d 522 (2 Dept
`
`2002) (Labor Law § 240[1] inapplicable where pipe fell on a plaintiff as his co-
`
`worker was unloading a truck); Belcastro v. Hewlett-Woodmere Union Free
`
`School District, 286 A.d.2d 744 (2 Dept 2001) (Labor Law § 240[1] inapplicable
`
`where a piece of wood that struck a plaintiff fell from or was thrown from a roof).
`
`16
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`
`
`
`B.
`PLAINTIFF’S PROCEDURAL OBJECTIONS ARE WITHOUT
`MERIT
`
`
`
`1.
`Plaintiff Has Not Disputed that the DOB Hearing
`Information is Admissible
`
`Plaintiff has not contested that the Department of Buildings hearing
`
`records and OATH decision are admissible as a public record, and because they
`
`were authenticated by Tyler Brong, who was personally present at the hearing.
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`Accordingly, this Court should accept as additional evidence the finding of the
`
`OATH Hearing Officer:
`
`I find that not every accident results in a failure to safeguard or
`rises to a level of Class 1. By Mr. Brong's credible testimony... I
`find that petitioner has not credibly established that respondent
`failed to institute and maintain safety equipment and measures
`at the time of inspection or that the condition was immediately
`hazardous. Therefore, I dismiss the summons.
`
`
`This finding of
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`the OATH Hearing office wholly supports
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`Defendants-Appellants position that no enumerated safety devices were necessary
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`or expected for the work being performed by plaintiff.
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`2.
`Plaintiff Has Not Disputed that an Expert May be Disclosed
`at Any Time up to 30 Days Before Trial and Mr. Barnett’s
`Affidavit Sufficiently Establishes his Credentials as an Expert
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`Plaintiff has not disputed that here is no requirement that an expert be
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`disclosed earlier than thirty days before trial, and it is entirely proper for this Court
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`to consider the affidavit of expert Rush Barnett here. “Although C.P.L.R §
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`3l0l(d)(l)(i) requires a party, upon request, to identify the expert witnesses the
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`party expects to call at trial, it does not require a party to respond to a demand for
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`expert witness information at any specific time.” Begley v. City of New York, 111
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`A.D.3d 5, 36 (2 Dept 2013). Moreover, this Court has explicitly held that “a
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`party’s failure to disclose its experts pursuant to CPLR 3101(d)(1)(i) prior to the
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`filing of a note of issue and certificate of readiness does not divest a court of the
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`discretion to consider an affirmation or affidavit submitted by that party’s experts
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`in the context of a timely motion for summary judgment” See Rivers v. Birnbaum,
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`102 A.D.3d 26, 31 (2 Dept 2012).
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`As discussed in Appellant’s main brief, plaintiff’s attempt to attack
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`Mr. Barnett’s credentials are similarly without merit. Mr. Barnett stated his
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`credentials and expertise as a Certified Safety Professional – and they are
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`considerable – in the first two paragraphs of his affidavit. R. 962. There is no
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`requirement that a “CV” be submitted and plaintiff cited to no such case law. In
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`any case, Mr. Barnett’s resume is readily available on Westlaw at 2000 WL
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`35769034 and this Court may take judicial notice of same. Moreover, Mr. Barnett
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`has been accepted as an expert in both the state and federal courts of New York
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`State. See e.g. Tyler v. Kawaguchi, Inc., No. 00 CV 6366, 2006 WL 581184, at *4
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`(W.D.N.Y. 2006), where the court explicitly described Mr. Barnett as a qualified
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`expert:
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`DSM's expert, E. Rush Barnett, concludes that DSM's warnings
`in its packaging were adequately sufficient and met OSHA
`standards. Thus, these disputed opinions by qualified experts
`present questions of fact.
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`Id. (emphasis added).
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`Moreover, there is no requirement that an expert must physically
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`examine the scene of an alleged accident, particularly where there is no claim that
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`a condition at the scene was the causative factor. The black letter law on
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`admissibility of an expert is:
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`“[T]o be admissible, opinion evidence must be based on one of
`the following: first, personal knowledge of the facts upon which
`the opinion rests; second, where the expert does not have
`personal knowledge of the facts upon which the opinion rests,
`the opinion may be based upon facts and material in evidence,
`real or testimonial; third, material not in evidence provided that
`the out-of-court material is derived from a witness subject to
`full cross-examination; and fourth, material not in evidence
`provided the out-of-court material is of the kind accepted in the
`profession as a basis in forming an opinion and the out-of-court
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`material is accompanied by evidence establishing its reliability”
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`Jimenez v. Gasque, 111 A.D.3d 675, 675 (2 Dept 2013). See
`also Hambsch v. New York City Transit Auth., 63 N.Y.2d 723,
`725 (1984) (“It is settled and unquestioned law that opinion
`evidence must be based on facts in the record or personally
`known to the witness”)(emphasis added).
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`
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`The courts of this State have repeatedly held that an expert’s opinion
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`is admissible where it is based on testimony and/or photographs in evidence. For
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`example, in Abdelall v. Niagara Frontier Transit Metro Sys., Inc., 194 A.D.3d
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`1375 (4 Dept 2021), the court held: “the expert's opinions were not speculative or
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`devoid of factual support in the record, but instead were properly based on
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`photographs and testimony of the witnesses.” Id. (internal punctuation omitted).
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`This Court held in Gagliardi v. Am. Suzuki Motor Corp., 303 A.D.2d 718 (2 Dept
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`2003): “The trial court properly admitted the testimony of the plaintiff's expert, as
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`it was based upon facts and material in evidence, as well as his experience in the
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`subject area.”
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`As Mr. Barnett specified in his affidavit, his opinion therein is based
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`on a plethora of admissible evidence in this action, including plaintiff’s own
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`testimony, the affidavit of Mr. Brong, the OATH Hearing materials, photographs,
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`and various other documents exchanged in this case, as well as on Mr. Barnett’s
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`own “expertise in the areas of construction and industrial safety and material
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`handling.” R. 963. This foundation more than satisfies the requirements of
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`Gagliardi, Abdelall, Jiminez, and Hambsch, supra.
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`As with the rest of the case law cited by plaintiff in this appeal, the
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`cases plaintiff cites for this issue are entirely inapposite to the facts of this case and
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`therefore irrelevant. Each of the cases plaintiff cites involved a theory of liability
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`resting on a claim of a defective condition – either of equipment or of the job site
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`itself: a ladder (Merino), a crack in a home’s foundation (Tedone), a safety line
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`and/or plaintiff’s harness (Lazo), and planks of a scaffold collapsed (Jarama). In
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`those cases, it was logical to hold that the expert should have examined the
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`allegedly defective condition. The instant case, however, contains no such
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`allegation. The plaintiff’s allegation here is based on the “methods” used by
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`plaintiff and his coworker to position the piece of plywood. The relevant evidence
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`is plaintiff’s own testimony about how he and his co-worker were performing the
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`task, the affidavit of Mr. Brong as to the method of doing the task, and findings of
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`the OATH Hearing. No defective condition was alleged and therefore there was
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`nothing relevant to be examined at the scene of the accident.
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`Mr. Barnett’s affidavit is fully supported by admissible evidence and
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`testimony in this action and his own expertise in the relevant industry and is
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`therefore admissible under Gagliardi, Abdelall, Jiminez, and Hambsch, supra.
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`CONCLUSION
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`WHEREFORE, it is respectfully requested that this Court modify the
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`decision of the trial court to the extent of granting dismissal of plaintiff’s Labor
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`Law 240 cause of action and denying plaintiff’s motion in its entirety; or, in the
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`alternative, denying plaintiff’s motion for summary judgment and remanding the
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`case for trial; and for such other and further relief as this Court deems just and
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`proper.
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`Dated:
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`
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`New York, New York
`September 21, 2023
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`Yours, etc.,
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`CULLEN & DYKMAN LLP
`Attorneys for Defendant-Appellant
`
`__________________________________________
`Adrienne Yaron
`One Battery Park Plaza, 34 Floor
`New York, New York 10004
`212.732.2000
`ayaron@cullenllp.com
`Our Ref. No.: 05490.00007
`
`Of Counsel:
`Olivia M. Gross
`Adrienne Yaron
`Erik E. Harris
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`PRINTING SPECIFICATIONS STATEMENT
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`Pursuant to 22 NYCRR § 1250.8(j) the foregoing brief was prepared on a
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`computer.
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`Type: A proportionally spaced typeface was used as follows:
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`Name of typeface: Times New Roman
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`Point size:
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`Line spacing:
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`Word Count: The total number of words in the brief, inclusive of point
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`14
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`Double
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`headings and footnotes and exclusive of pages containing the table of contents,
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`table of authorities, proof of service, printing specifications statement, or any
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`authorized addendum containing statutes, rules, regulations, etc. is 4,229.
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`Abdelall v. Niagara Frontier Transit Me