Opinion
Index No. 712392/2018
03-07-2023
Jamie Arizaga, Plaintiff(s), v. Lex Gardens II TP4 Housing Development Fund Company, Inc., LEXINGTON GARDEN OWNERS LLC, LEX GARDENS II TP4 LLC, LEX GARDENS HOUSING DEVELOPMENT FUND COMPANY, INC. and CONGRESS BUILDERS LLC, Defendant(s). LEX GARDENS II TP4 HOUSING DEVELOPMENT FUND COMPANY, INC., LEXINGTON GARDEN OWNERS LLC, LEX GARDENS II TP4 LLC, LEX GARDENS HOUSING DEVELOPMENT FUND COMPANY, INC. and CONGRESS BUILDERS LLC, Third-Party Plaintiffs, v. MILL CREEK CONSTRUCTION CORP., Third-Party Defendant.
William Schwitzer & Associates, for plaintiff Brody, O'Connor & O'Conner, for defendants/third party plaintiffs (1) Lex Gardens II TP4 Housing Development Fund Company, Inc., (2) Lexington Garden Owners LLC, (3) Lex Gardens II TP4 LLC, Congress Builders LLC Sobel Pevzner, LLC, for defendant Lex Gardens Housing Development Fund Company, Inc. Wade Clark Mulcahy, for third-party defendant Mill Creek Construction Corp.
Unpublished Opinion
William Schwitzer & Associates, for plaintiff
Brody, O'Connor & O'Conner, for defendants/third party plaintiffs (1) Lex Gardens II TP4 Housing Development Fund Company, Inc., (2) Lexington Garden Owners LLC, (3) Lex Gardens II TP4 LLC, Congress Builders LLC
Sobel Pevzner, LLC, for defendant Lex Gardens Housing Development Fund Company, Inc.
Wade Clark Mulcahy, for third-party defendant Mill Creek Construction Corp.
Denis J. Butler, J.
The following papers were read on this motion (Seq. 4) by plaintiff Jamie Arizaga for an order granting plaintiff partial summary judgment pursuant to CPLR 3212 as to his Labor Law 240(1) claim against defendants Lex Gardens II TP4 Housing Development Fund Company, Inc., Lexington Gardens Owners LLC, Lex Gardens II TP4 LLC (hereinafter Lex Gardens), and Congress Builders LLC (hereinafter Congress, and together with Lex Gardens, defendants/third party plaintiffs); and motion (Seq. 6) by defendants/third party plaintiffs for an order: (1) pursuant to CPLR 3212 granting summary judgment and dismissing the complaint; and (2) pursuant to CPLR 3212 granting defendants/third party plaintiffs summary judgment against third-party defendant Mill Creek Construction Corp. (hereinafter Mill Creek), on defendants/third party plaintiffs' claims for contractual indemnity and breach of contract for failing to comply with the insurance procurement clause.
(SEQUENCE 004)
Papers Numbered
Notice of Motion, Affirmation, Exhibits. E119-134
Affirmation in Opposition, Exhibits. E159-163
Affirmation in Opposition, Exhibits, Memo of Law. E174-178
Reply Affirmation. E213
(SEQUENCE 006)
Papers Numbered
Notice of Motion, Affirmation, Exhibits and Memorandum of Law. E179-200
Plaintiff's Affirmation In Opposition, Exhibits. E202-203
Affirmation in Partial Opposition, Exhibits. E204-209
Reply Affirmation, Exhibits, Memo of Law. E210-212
Upon the foregoing papers, it is ordered that these motions are determined as follows:
On June 14, 2018, plaintiff, a construction worker employed by third-party defendant Mill Creek, was performing carpentry-related work at the subject premises when the scaffold platform plaintiff was standing on lifted up, then fell back down, causing plaintiff to lose his balance and fall.
Defendant/third party plaintiff Lex Gardens owned the subject premises, defendant/third party plaintiff Congress was the general contractor retained to oversee work at the subject premises, and third-party defendant Mill Creek was retained as a subcontractor to perform concrete and excavation related work at the subject premises.
The Court first addresses the motion by plaintiff (Seq. 4) seeking partial summary judgment against defendants/third party plaintiffs on plaintiff's Labor law 240(1) cause of action, in which plaintiff alleges he is entitled to summary judgment on his Labor Law 240(1) claim because his injury occurred due to an inadequately secured scaffold "which collapsed," and caused plaintiff to fall from a height.
Defendants/third party plaintiffs, and third-party defendant Mill Creek, separately oppose plaintiff's motion on grounds there are triable issues of fact as to whether plaintiff fell from a height, or whether plaintiff fell onto the scaffold platform itself.
A proponent for summary judgment must make a prima facie showing of entitlement to summary judgment through the submission of sufficient evidence to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 24 [1986]). Once the movant establishes prima facie entitlement to summary judgment, it is incumbent upon the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of triable issues of fact (see Zuckerman v City of New York, 49 N.Y.2d 557, 63 [1980]). Summary judgment is "a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues" (Andre v Pomeroy, 35 N.Y.2d 361, 364 [1974]).
Labor Law 240(1) imposes a nondelegable duty upon owners, general contractors, and their agents, to provide scaffolding which is "so constructed, placed and operated as to give proper protection" to employees using it (Labor Law 240[1]). To make a prima facie showing of liability under Labor Law 240(1) plaintiff must establish the statute was violated and that the violation was a proximate cause of his or her injuries (see Felix v Klee & Woolf, LLP, 138 A.D.3d 920, 921 [2d Dept 2016]). The statute, however, "is intended to provide 'extraordinary protections [applicable] only to a narrow class of dangers. More specifically, [the statute] relates only to special hazards presenting elevation-related risks'" (Christiansen v Bonacio Const., Inc., 129 A.D.3d 1156, 1157 [3d Dept 2015], quoting Nicometi v Vineyards of Fredonia, LLC, 25 N.Y.3d 90, 97 [2015]; see Eddy v John Hummel Custom Builders, Inc., 147 A.D.3d 16, 20 [2d Dept 2016]). Elevation-related risks "are limited to [] specific gravity-related accidents [such] as falling from a height" (Ross v Curtis-Palmer Hydro-Electric Co., 81 N.Y.2d 494, 501 [1993]), from "a 'physically significant elevation differential'" (Christiansen v Bonacio Const., Inc., 129 A.D.3d 1156, 1157, quoting Runner v New York Stock Exch., Inc., 13 N.Y.3d 599, 603 [2009]). "Merely because a worker is injured while working above ground does not ipso facto mean that the injury resulted from an elevation-related risk contemplated by Section 240(1) of the Labor Law" (Guallpa v Canarsie Plaza, LLC, 144 A.D.3d 1088, 1090 [2d Dept 2016] [internal quotation marks omitted]; see Jones v City of New York, 166 A.D.3d 739, 740 [2d Dept 2018]).
Plaintiff, in support, annexed, inter alia, his deposition testimony, wherein he attested that in the course of performing "stripping work" while on the subject scaffold, the scaffold plank lifted and "tipped," causing plaintiff to lose his balance and fall. Plaintiff also annexed the expert affidavit of Kathleen Hopkins, a "Certified Site Safety Manager" who opined the scaffold planks at issue were inadequately secured, failed to protect plaintiff from height related risks, and thus violated Labor Law 240(1). Generally, the failure of the unsecured scaffold would give "rise to 'a prima facie showing that the statute was violated and that the violation was a proximate cause of [plaintiff's] injuries'" (Debennedetto v Chetrit, 190 A.D.3d 933, 936 [2d Dept 2021], quoting Dos Santos v State of New York, 300 A.D.2d 434, 434 [2d Dept 2002]).
Defendants/third party plaintiffs, and third-party defendant Mill Creek, relying on plaintiff's deposition testimony, assert there are triable issues of fact as to whether plaintiff was injured due to an elevation related risk (see D'Ambruoso v Port Auth. of New York & New Jersey, 211 A.D.3d 573, 573 [1st Dept 2022]; Bonaparte v Niagara Mohawk Power Corp., 188 A.D.2d 853 [3d Dept 1992]). Plaintiff testified during his deposition on February 27, 2020, that he fell approximately "two feet" and hit his shoulder on the "lateral side of the scaffold," and during his deposition on February 22, 2021, that he told his doctor he fell "on a scaffold" (see Smith v County of Nassau, 242 A.D.2d 380, 381 [2d Dept 1997]; see generally Christiansen v Bonacio Const., Inc., 129 A.D.3d 1156, 1158). This evidence, viewed in the light most favorable to defendants/third party plaintiffs as the nonmoving parties (see Pearson v Dix McBride, LLC, 63 A.D.3d 895 [2d Dept 2009]), presents a triable issue of fact as to whether plaintiff's fall was caused "by [a] height differential" (Polonia v 14 Sutton Tenants Corp., 210 A.D.3d 417, 418 [1st Dept 2022]), or that plaintiff fell "from an elevation" (Smith v County of Nassau, 242 A.D.2d 380, 381), as required to bring plaintiff's injury within the ambit of Labor Law § 240(1). While plaintiff asserts that during his January 28, 2021, deposition he testified that he fell "like five feet" off of the side of the scaffold and into the metal scaffold assembly, this evidence was inconsistent with plaintiff's other deposition testimony, and therefore failed to resolve issues of fact whether plaintiff fell from a height (see 6243 Jericho Realty Corp. v AutoZone, Inc., 27 A.D.3d 447, 449 [2d Dept 2006]; Rodriguez v New York City Hous. Auth., 194 A.D.2d 460, 462 [1st Dept 1993]).
As such, the motion by plaintiff (Seq. 4) seeking partial summary judgment pursuant to CPLR 3212 as to plaintiff's Labor Law 240(1) claim against defendants/third party plaintiffs, is denied.
The Court next addresses the motion by defendants/third party plaintiffs (Seq. 6) seeking (1) summary judgment and dismissal of plaintiff's complaint, and (2) summary judgment on defendants/third party plaintiffs' third-party claims against third-party defendant Mill Creek for contractual indemnification and breach of contract.
The first branch of defendants/third party plainitffs' motion seeks summary judgment and dismissal of plaintiff's Labor Law 240(1) cause of action on grounds an investigation by third-party defendant Mill Creek into the accident determined plaintiff fell on the same level where he was working, plaintiff gave inconsistent descriptions of the accident to various medical providers, and plaintiff's own deposition testimony established that plaintiff did not fall from an elevation.
Plaintiff, in opposition, asserts the accident investigation report, and medical records, are inadmissable hearsay, and regardless the evidence is "not materially inconsistent" with plaintiff's allegation that the unsecured scaffold plank was defective and caused plaintiff to "fall off the scaffold."
"A hospital and other medical records 'are admissible if the proponent offers either foundational testimony under CPLR 4518(a) or certification under CPLR 4518(c)" (Sherrod v Mount Sinai St. Luke's, 204 A.D.3d 1053, 1057 [2d Dept 2022], quoting Matter of Kai B., 38 A.D.3d 882, 884 [2d Dept 2007] [emphasis in original]). Defendants have offered neither foundational testimony, nor are the medical records certified, and therefore the medical records are inadmissible hearsay and shall not be considered in determining this motion.
Similarly, "[t]he unsworn accident report [by third-party defendant Mill Creek] relied upon by defendants to show an inconsistency in plaintiff's account of the accident" fails to support their prima facie burden, as it is "inadmissible hearsay, and defendants provide no excuse for their failure to tender the report in admissible form" (Kristo v Bd. of Educ. of City of New York, 134 A.D.3d 550, 551 [1st Dept 2015] [internal citations omitted]; see Allstate Ins. Co. v Keil, 268 A.D.2d 545, 545 [2d Dept 2000]).
In any event, plaintiff's deposition testimony was inconsistent, although viewing plaintiff's deposition testimony in the light most favorable to plaintiff as the non-movant (see Pearson v Dix McBride, LLC, 63 A.D.3d 895), there remains triable issues of fact whether plaintiff's fall was from a height as contemplated by Labor Law 240(1) (see Rodriguez v New York City Hous. Auth., 194 A.D.2d 460, 462).
As such, the first branch of the motion by defendants/third party plaintiffs (Seq. 6) seeking summary judgment and dismissal of plaintiff's Labor Law 240(1) cause of action, is denied.
The second branch of the motion by defendants/third party plaintiffs (Seq. 6) seeks summary judgment and dismissal of plaintiff's Labor Law 241(6) claims on grounds the Industrial Code sections cited to by plaintiff in his bill of particulars are either overly broad, inapplicable, or were not violated.
Labor Law § 241(6) imposes a non-delegable duty upon an owner or general contractor to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor (see Rizzuto v L.A. Wenger Contr. Co., 91 N.Y.2d 343 [1998]). "To prevail on a cause of action alleging a violation of Labor Law § 241(6), a plaintiff must establish the violation of a specific and concrete provision of the Industrial Code, and that such violation was a proximate cause of his or her injuries" (Fonck v City of New York, 198 A.D.3d 874 [2d Dept 2021]; see Toussaint v Port Auth. of New York and New Jersey, 38 N.Y.3d 89, 94 [2022] [internal quotation marks omitted]).
Plaintiff's bill of particulars lists 12 NYCRR 23-1.2(a), 23-1.5(c), 23-1.7(b), 23-1.16, 23-1.22(c) and 23-5.1, as the predicate industrial code sections underlying his Labor Law 241(6) cause of action. Plaintiff, in opposition, only addresses "Industrial Code 23-5.1(e)(1)" as the predicate industrial code underlying his Labor Law 241(6) cause of action, although this specific code section was not cited to in plaintiff's bill of particulars, and plaintiff has not sought leave to amend his pleadings to including this specific code section. As such, 22 NYCRR 23-5.1(e)(1) shall not be considered as among the specific and concrete provisions relied upon by plaintiff in asserting a claim under Labor Law 241(6).
Plaintiff's bill of particulars first cites 12 NYCRR 23-1.2(a) as supporting his Labor Law 241(6) claim, although this provision is titled "finding of fact," and consists of findings by the regulatory "board" promulgating the construction protections contained in the industrial code, and does not contain any specific safety standards, and therefore fails to form the predicate for liability under Labor Law 241(6). Similarly, plaintiff's bill of particulars cites to 12 NYCRR 23-1.5, although that regulation "only sets general safety standards, [and] would not constitute a basis for a claim under Labor Law § 241(6)" (Sihly v New York City Tr. Auth., 282 A.D.2d 337 [1st Dept 2001]).
Plaintiff's bill of particulars proceeds to cite 12 NYCRR 23- 1.7(b), 23-1.16, 23-1.22(c), and 23-5.1 as the predicate code sections underlying his Labor Law 241(6) claim. However, each of these provisions contain multiple subsections, and therefore plaintiffs citation to these code sections fails to identify a specific code section as required to sustain a cause of action pursuant to Labor Law 241(6) (see Caminiti v Extell W. 57th St. LLC, 166 A.D.3d 440, 441 [1st Dept 2018]; McLean v Tishman Const. Corp., 144 A.D.3d 534, 535 [1st Dept 2016]). Furthermore, both 12 NYCRR 23-1.7(b) and 12 NYCRR 23-1.22(c) are inapplicable as the former encompasses "falling hazards," and consists of two subsections, "hazardous openings" and "bridge or highway overpass construction," neither of which are implicated in this action, while the latter concerns platforms "used to transport vehicular and/or pedestrian traffic" (Curley v Gateway Communications, 250 A.D.2d 888, 892 [3d Dept 1998]).
As such, the second branch of the motion by defendants/third party plaintiffs (Seq. 6) seeking summary judgment and dismissal of plaintiff's Labor Law 241(6) cause of action, is granted.
The third branch of the motion by defendants/third party plaintiffs (Seq. 6) seeks summary judgment and dismissal of plaintiff's Labor Law 200 and common-law negligence cause of action on grounds defendants did not supervise or control plaintiff's work.
"Labor Law § 200 is a codification of the common-law duty imposed on owners, contractors, and their agents to provide workers with a safe place to work" (Chuqui v Amna, LLC, 203 A.D.3d 1018 [2d Dept 2022]). "Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed" (Sanchez v BBL Constr. Services, LLC, 202 A.D.3d 847, 849 [2d Dept 2022] [internal quotation marks omitted]). "When there are allegations involving the manner in which the work was performed, a property owner will be held liable only if it possessed the authority to supervise or control the means and methods of the work" (Saitta v Marsah Properties, LLC, 211 A.D.3d 1062, 1063 [2d Dept 2022] [internal quotation marks omitted]). "As to allegations involving dangerous or defective conditions on the premises where the work was performed, the property owner will be held liable if it either created a dangerous or defective condition, or had actual or constructive notice of it without remedying it within a reasonable time" (Saitta v Marsah Properties, LLC, 211 A.D.3d 1062, 1064-65 [internal quotation marks omitted]).
While defendants are "not required to blindly accept a plaintiff's categorization of an accident as either a method and manner case or a dangerous condition case, or both," defendants, in controverting a plaintiff's categorization, must demonstrate "as part of its prima facie showing, that the accident falls into one of the two broad categories of Labor Law § 200 cases" (Rodriguez v HY 38 Owner, LLC, 192 A.D.3d 839, 842 [2d Dept 2021] [internal quotation marks omitted]). Defendants failed to demonstrate, prima facie, that the accident only implicated the means and methods category of Labor Law 200 claims. Furthermore, while defendants annexed evidence that they did not construct the scaffold, and thus did not cause the defect, defendants failed to demonstrate, inter alia, they lacked notice of the defect.
As such, the third branch of the motion by defendants/third party plaintiffs (Seq. 6) seeking summary judgment and dismissal of plaintiff's Labor Law 200 and common law negligence cause of action, is denied.
The fourth branch of the motion by defendants/third party plaintiffs (Seq. 6) seeks summary judgment on defendants/third party plaintiffs' third-party contractual indemnification claim against third-party defendant Mill Creek. Defendants/third party plaintiffs assert the third-party defendant Mill Creek subcontract contains an indemnification clause, and that they are entitled to a conditional finding of indemnification pending a finding of liability in the action.
Third-party defendant Mill Creek, in opposition, asserts defendants/third party plaintiffs' motion seeking summary judgment on its contractual indemnification claim is premature.
"[T]he right to contractual indemnification depends upon the specific language of the contract" (Bellefleur v Newark Beth Israel Med. Ctr., 66 A.D.3d 807, 808 [2d Dept 2009]), and "[t]he promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances" (George v Marshalls of MA, Inc., 61 A.D.3d 925, 930 [2d Dept 2009]). Third-party defendant Mill Creek's subcontract contained an indemnification clause in favor of defendants/third-party plaintiffs, which provided coverage, inter alia, for claims arising from third-party defendant Mill Creek's work.
However, "[a] party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefore" (Bellefleur v Newark Beth Israel Med. Ctr., 66 A.D.3d 807, 808 [internal quotation marks omitted]). "[W]here a question of fact exists regarding the owner's negligence, a conditional order of summary judgment for contractual indemnification must be denied as premature" (Bellefleur v Newark Beth Israel Med. Ctr., 66 A.D.3d 807, 808). As defendants/third-party plaintiffs failed to establish, prima facie, entitlement to summary judgment on plaintiff's Labor Law 200 and common law negligence claims, and thus whether defendants/third-party plaintiffs were free from negligence in the happening of the accident, defendants/third-party plaintiffs are not entitled to a conditional award of summary judgment on their contractual indemnification claim against third- party defendant Mill Creek.
As such, the fourth branch of the motion by defendants/third- party plaintiffs (Seq. 6) seeking summary judgment on defendants/ third-party plaintiffs' third-party claim for contractual indemnification against third-party defendant Mill Creek, is denied.
The fifth branch of the motion by defendants/third-party plaintiffs (Seq. 6) seeks summary judgment on defendants/third- party plaintiffs third-party breach of contract claim against third-party defendant Mill Creek. Defendants assert third-party defendant Mill Creek was required by contract to maintain $9 million in excess insurance coverage, and that third-party defendant Mill Creek breached the agreement when third-party defendant Mill Creek allowed its "excess coverage" to lapse due to nonpayment of premiums.
Third-party defendant Mill Creek asserts summary judgment on defendants/third-party plaintiffs' third-party breach of contract claim should be denied as defendants/third-party plaintiffs have not established damages.
"The essential elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of its contractual obligations, and damages resulting from the breach (223 SAM, LLC v 223 15th St., LLC, 210 A.D.3d 733, 734-35 [2d Dept 2022]). "A party seeking summary judgment based on an alleged failure to procure insurance naming that party as an additional insured must demonstrate that a contract provision required that such insurance be procured and that the provision was not complied with" (Ginter v Flushing Terrace, LLC, 121 A.D.3d 840, 844 [2d Dept 2014]).
Defendants/third-party plaintiffs, in support, annex third- party defendant Mill Creek's subcontract wherein third-party defendant Mill Creek was required to procure, inter alia, $2,000,000 in general liability insurance, and $9,000,000 in "excess/umbrella liability" coverage. Defendants/third-party plaintiffs also annex correspondence from three of third-party defendant Mill Creek's insurance carriers stating that an aggregate of $4,000,000 in excess coverage was cancelled prior to the accident in this case due to non-payment of premiums. This evidence, viewed in the light most favorable to third-party defendant Mill Creek as the nonmoving party (see Pearson v Dix McBride, LLC, 63 A.D.3d 895), failed to demonstrate, prima facie, that third-party defendant Mill Creek breached the subcontract by failing to procure sufficient excess insurance coverage. Furthermore, as asserted by third-party defendant Mill Creek, defendants/third-party plaintiffs have failed to demonstrate damages arising from any lapse in excess insurance coverage by third-party defendant Mill Creek, as there has been no finding of liability in this matter, and no proof third-party defendant Mill Creek's general liability coverage is insufficient to cover any loss.
As such, the fifth branch of the motion by defendants/third- party plaintiffs (Seq. 6) seeking summary judgment on defendants/third-party plaintiffs' third-party claim for breach of contract against third-party defendant Mill Creek, is denied.
Accordingly, it is hereby
ORDERED that the motion (Seq. 4) by plaintiff Jamie Arizaga for an order granting plaintiff partial summary judgment pursuant to CPLR 3212 as to his Labor Law 240(1) claim against defendants Lex Gardens II TP4 Housing Development Fund Company, Inc., Lexington Gardens Owners LLC, Lex Gardens II TP4 LLC, and Congress Builders LLC, is DENIED; and it is further
ORDERED that the first branch of the motion (Seq. 6) by defendants Lex Gardens II TP4 Housing Development Fund Company, Inc., Lexington Gardens Owners LLC, Lex Gardens II TP4 LLC, and Congress Builders LLC, seeking summary judgment and dismissal of plaintiff's Labor Law 240(1) cause of action, is DENIED; and it is further
ORDERED that the second branch of the motion (Seq. 6) by defendants Lex Gardens II TP4 Housing Development Fund Company, Inc., Lexington Gardens Owners LLC, Lex Gardens II TP4 LLC, and Congress Builders LLC, seeking summary judgment and dismissal of plaintiff's Labor Law 241(6) cause of action, is GRANTED; and it is further
ORDERED that the third branch of the motion (Seq. 6) by defendants Lex Gardens II TP4 Housing Development Fund Company, Inc., Lexington Gardens Owners LLC, Lex Gardens II TP4 LLC, and Congress Builders LLC, seeking summary judgment and dismissal of plaintiff's Labor Law 200 and common law negligence cause of action, is DENIED; and it is further
ORDERED that the fourth branch of the motion (Seq. 6) by defendants Lex Gardens II TP4 Housing Development Fund Company, Inc., Lexington Gardens Owners LLC, Lex Gardens II TP4 LLC, and Congress Builders LLC, seeking summary judgment on their third- party claim for contractual indemnification against third-party defendant Mill Creek, is DENIED; and it is further
ORDERED that the fifth branch of the motion (Seq. 6) by defendants Lex Gardens II TP4 Housing Development Fund Company, Inc., Lexington Gardens Owners LLC, Lex Gardens II TP4 LLC, and Congress Builders LLC, seeking summary judgment on their third- party claim for breach of contract against third-party defendant Mill Creek, is DENIED.
This constitutes the decision and order of the court.