Leonard Hutchinson, Appellant,v.Sheridan Hill House Corp., Respondent.BriefN.Y.September 17, 2015APL-2014-00045 Bronx County Clerk’s Index No. 307060/09 Court of Appeals STATE OF NEW YORK LEONARD HUTCHINSON, Plaintiff-Appellant, against SHERIDAN HILL HOUSE CORP., Defendant-Respondent. >> >> REPLY BRIEF FOR PLAINTIFF-APPELLANT GETZ & BRAVERMAN, P.C Attorneys for Plaintiff-Appellant By: POLLACK, POLLACK, ISAAC & DE CICCO, LLP Appellate Counsel 225 Broadway, Suite 307 New York, New York 10007 212-233-8100Of Counsel: Michael Braverman Brian J. Isaac Date Completed: January 12, 2015 To Be Argued By: Brian J. Isaac Time Requested: 30 Minutes i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ........................................ ii PRELIMINARY STATEMENT ........................................ 1 CONCLUSION .................................................. 16 ii TABLE OF AUTHORITIES State Cases Adlam v. Konvalinka, 291 NY 40 [1943].......................... 9 Aldrich v. Oneida Co., 299 AD2d 938 [4 th Dept. 2002] ........... 7 Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]............... 7 Antonucci v. Emeco Industries, 223 AD2d 913 [3d Dept. 1996].... 7 Argenio v. MTA, 277 AD2d 165 [1 st Dept. 2000] .................. 4 Ayzen v. Melendez, 299 AD2d 381 [2d Dept. 2002]............... 10 Bent v. Jackson, 15 AD3d 46 [1 st Dept. 2005] .................. 10 Boylhart v. DiMarco & Reimann, 270 NY 217 [1936].............. 11 Bunce v. NYC, 261 AD 838 [2d Dept. 1941]....................... 8 Catalano v. Tanner, 23 NY3d 976 [2014]........................ 14 Cecere v. Zep Mfg., 116 AD3d 901 [2d Dept. 2014]............... 7 Chernin v. MTA, 52 AD3d 763 [2d Dept. 2008]................... 10 Clifford v. Dam, 81 NY 52 [1880]............................... 8 Colt v. A&P, 209 AD2d 294 [1 st Dept. 1994] .................... 14 Cook v. Rezende, 32 NY2d 596 [1973]........................... 11 Delaney v. Philhern Realty, 280 NY 461 [1939].............. 8, 11 Edwards v. St. Elizabeth MC, 72 AD3d 1595 [4 th Dept. 2010] ..... 3 Fazio v. Costco, 85 AD3d 443 [1 st Dept. 2011] ................. 15 Gammons v. NYC, 2014 NY LEXIS 3440 [2014]...................... 7 George Larkin Trucking v. Lisbon Tire Mart, 185 AD2d 614 [4 th Dept. 1992] ................................. 8 Giuffrida v. Metro North, 279 AD2d 403 [1 st Dept. 2001] ....... 14 Glickman v. NYC, 297 AD2d 220 [1 st Dept. 2002] ................. 3 Gonzalez v. Club Monaco, 95 AD3d 549 [1 st Dept. 2012] ......... 15 iii Hawkins v. NYC, 99 AD2d 481 [2d Dept. 1984].................... 9 Johnson v. NYC, 302 AD2d 463 [2d Dept. 2003]................... 7 Kirby v. Montgomery Bros., 197 NY 27 [1909].................... 9 Lowenstein v. Normandy Group, 51 AD3d 517 [1 st Dept. 2008] ..... 8 Meehan v. Barksdale Tenants, 73 AD3d 514 [1 st Dept. 2010] ...... 6 Michigan National Bank v. Oakland, 89 NY2d 94 [1996]........... 6 Munasca v. Morrison Mgmt., 111 AD3d 564 [1 st Dept. 2013] ...... 15 Nancy Ann O. v. Poughkeepsie CSD, 95 AD3d 972 [2d Dept. 2012] ................................. 10 Narvaez v. 2914 Third Ave., 88 AD3d 500 [1 st Dept. 2011] ...... 15 Ortiz v. Varsity Holdings, 18 NY3d 335 [2011].................. 8 Perry v. Pagano, 267 AD2d 290 [2d Dept. 1999]................. 10 Powers v. 31 E. 31 LLC, 24 NY3d 84 [2014]...................... 7 Raso v. Statewide Auto, 262 AD2d 387 [2d Dept. 1999].......... 10 Reynolds v. Knibbs, 15 NY3d 879 [2010], revsg., 73 AD3d 1456 [4 th Dept. 2010] ......................... 9 Rohlfs v. Weil, 271 NY 444 [1936]............................. 11 Smalls v. AJI Industries, 10 NY3d 733 [2008], rearg. den., 10 NY3d 885 [2008] ............................. 10 Sparks v. NYC, 31 AD2d 660 [2d Dept. 1968]..................... 8 Sullivan v. State, 276 AD2d 989 [3d Dept. 2000]................ 3 Tesak v. Marine Midland, 254 AD2d 717 [4 th Dept. 1998] ......... 3 Torres v. Industrial Container, 305 AD2d 136 [1 st Dept. 2003] ................................. 7 Torres v. NYC, 109 AD3d 862 [2d Dept. 2013]................... 10 Trincere v. Suffolk Co., 90 NY2d 976 [1997]................ 1, 15 Vega v. Restani Corp., 18 NY3d 499 [2012]...................... 7 iv Velasquez v. Gomez, 44 AD3d 649 [2d Dept. 2007]................ 8 Wade-Westbrooke v. Eshaghian, 21 AD3d 802 [1 st Dept. 2005] ..... 6 Walters v. Costco, 51 AD3d 785 [2d Dept. 2008]................. 9 Weigand v. United Traction, 221 NY 39 [1917]................... 9 Wilson v. Time Warner, 6 AD3d 801 [3d Dept. 2004].............. 3 Wright v. Tudor City, 276 NY 303 [1938]....................... 11 1 COURT OF APPEALS STATE OF NEW YORK ------------------------------------X Index #103807/10 Leonard Hutchinson, Plaintiff-Appellant, APPELLANT’S REPLY BRIEF -against- Sheridan Hill House Corp., Defendant-Respondent ------------------------------------X PRELIMINARY STATEMENT The plaintiff-appellant, Leonard Hutchinson (the “plaintiff”) submits this brief in reply to the brief submitted by defendant-respondent Sheridan Hill House Corp. (the “defendant”) in connection with plaintiff’s appeal as of right from the 3-2 decision of the Appellate Division, First Department dated October 22, 2013 (332-39) 1 which affirmed the order of the Supreme Court, Bronx County (Gonzalez, J.), dated July 23, 2012, and entered on July 27, 2012 (5-12), granting defendant’s motion for summary judgment dismissing the complaint based on its finding that the defect over which plaintiff fell was “trivial” as interpreted by this Court in Trincere v. Suffolk Co., 90 NY2d 976 [1997]. We believe the Appellate Division dissent got it right in finding that, at the very least, triable issues of fact are 1 Numbers in parentheses refer to pages of the record on appeal. 2 present which preclude summary resolution of the case in favor of the defendant. We assume full familiarity with the papers before this Court, and respond directly to the arguments in defendant’s brief. [a] Defendant’s brief is immaculately written and researched, defining the issues clearly, and making the preparation of a reply brief that much easier. However, when carefully construed, it actually supports plaintiff’s position that dismissal, as a matter of law is inappropriate. Initially, defendant points out that the piece of metal that caused the accident appears to be a bolt firmly affixed to the sidewalk (29, 32-38, 44-45, 286) and was “measured to be only 5/8 of an inch in diameter and projecting just 3/16 of an inch above the surface of the sidewalk” (Brief at 1); its “existence had not previously been brought to [the] attention [of the defendant]”, which made “regular daily inspections of the subject sidewalk.” According to defendant, plaintiff failed to “rebut” its assertions in this regard (Brief at 1-2). Actually, these facts support plaintiff’s contention that the defect was a trap or snare for those using the sidewalk (96- 109, 243-58, 317-19). The rest of the sidewalk was in pristine condition, but this “stub” had a “round metal pipe shape with an 3 approximately 1/4” or more diameter” (164, 168), and according to defendant’s representatives was 5/8” in diameter and 3/4” above the surface (239-58). It is well settled that “Whether a defect is so trivial as to preclude liability depends on the particular facts of each case and requires consideration of such relevant factors as the dimensions of the alleged defect and the circumstances surrounding the injury” (Sullivan v. State, 276 AD2d 989, 989- 990 [3d Dept. 2000]). The factors include “the width, depth, elevation, irregularity, and appearance of the defect as well as the time, place and the circumstances of the injury” (Wilson v. Time Warner, 6 AD3d 801, 803 [3d Dept. 2004]). Where a person’s attention would not likely be focused on the defect, or where it would be hard to see, such that it constitutes a trap or snare, it generally cannot be said to be trivial as a matter of law (Tesak v. Marine Midland, 254 AD2d 717 [4 th Dept. 1998]). Sight lines are important in this determination (Edwards v. St. Elizabeth MC, 72 AD3d 1595 [4 th Dept. 2010]). In Glickman v. NYC, 297 AD2d 220, 220-221 [1 st Dept. 2002], plaintiff fell in a “shallow depression” or “dip”, and plaintiff’s expert showed that a person “leaving a busy parking area might be focused more on traffic rather than looking at the ground”, the “dip” was found “hard to see”; the Appellate 4 Division, First Department found that even if it was trivial, factual issues remained as to whether it gave rise to a negligence cause of action. Citing Argenio v. MTA, 277 AD2d 165, 165-166 [1 st Dept. 2000], the Glickman court noted that a tripping hazard or hard to detect defect was not trivial, so that an individual assessment of the hazard had to be undertaken. Here, it is the attorney for the defendant, in its brief, which argues that the defect is small and easy to miss – thus supporting plaintiff’s position. [b] Next, defendant argues that plaintiff claims the defect was both “readily apparent” and “not readily visible” (Brief at 2). On the contrary, we asked the Court in our main brief to adopt the following rule of law: “A defect on a public way is not trivial as a matter of law where it is not to be expected by a pedestrian, not readily seen in the ordinary course, inconsistent with its surroundings, firmly fixed in the ground, and of an abrupt or uneven nature, such that it is capable of catching a pedestrian’s shoe, causing him or her to become unbalanced.” Our position has always been that the defect in this case meets those requirements. And we pointed out that the testimony of defendant’s representatives that they walked the area regularly and did not 5 see the condition and could not find it when they looked established that the condition was a trap or snare, not a trivial defect as a matter of law, pursuant to settled Appellate Division case law. See, Argenio v. MTA, supra; Slate v. Fredonia CSD, 256 AD2d 1210 [4 th Dept. 1998]. Irregular and abrupt edges cannot normally be called trivial defects as a matter of law (Lupa v. Oswego, 117 AD3d 1418 [4 th Dept. 2014]; Jacobsen v. Krumholz, 41 AD3d 128 [1 st Dept. 2007]; McKenzie v. Crossroads Arena, 291 AD2d 860 [4 th Dept. 2002], app. dismd., 96 NY2d 647 [2002]; Nin v. Bernard, 257 AD2d 417 [1 st Dept. 1999]). Even the presence of people at a bus stop can create an issue as to whether a defect is “difficult to detect”, requiring a trial (Munasca v. Morrison Mgmt., 111 AD3d 564 [1 st Dept. 2013]). Since defendant’s own photographs display a defect, which is abrupt, inconsistent with the surrounding sidewalk, not readily visible and firmly affixed to the ground, how can defendant argue that the defect is trivial as a matter of law? [c] Defendant’s discussion of the facts also supports plaintiff’s position. For example, defendant admits that plaintiff was injured when “his foot got caught on something that he had not previously seen”, that plaintiff was “not distracted” and “nothing was obstructing his view”; he “did not observe the object prior to his fall and was not aware of anyone 6 else who had” (Brief at 4). Apparently, defense counsel does not realize that this means the bolt was not visible and constituted a trap or a snare. These admissions, of course, are admissible against defendant as adoptive admissions (Michigan National Bank v. Oakland, 89 NY2d 94 [1996]). Defendant notes that plaintiff “walked on this particular sidewalk hundreds of times in the more than 20 years he lived on Sheridan Avenue – most recently only a day or two prior to the accident – and never observed the object before his accident” (id.). This too establishes that the bolt was not readily visible. That plaintiff did not see the object does not definitively establish defendant’s lack of notice. See, Meehan v. Barksdale Tenants, 73 AD3d 514, 514-516 [1 st Dept. 2010], citing Wade- Westbrooke v. Eshaghian, 21 AD3d 802, 817 [1 st Dept. 2005]. And the fact that plaintiff noticed metal, “a little lower than half an inch” and the width of a “thumbnail”, that looked as though it was “screwed in on the concrete”, establishes its traplike characteristics. Defendant’s lack of notice of the sidewalk obstruction (Brief at 5) is consistent with the defective and traplike nature of the sidewalk, as is the inability of defendant’s employees to locate the defect (Brief at 5-6). It is not proper to fault plaintiff for saying the object was embedded in the 7 sidewalk “at the time it was replaced”, essentially asserting that the argument is unsupported supposition (Brief at 5). It is “generally inappropriate to place the burden of proof on a party in a case where the facts governing the resolution of the controversy are within the exclusive knowledge of the opposing party” (Johnson v. NYC, 302 AD2d 463, 463-464 [2d Dept. 2003]). Here, it made sense for plaintiff to assert that the bolt was a remnant of a larger sidewalk installation to which defendant admitted in the record (164, 168). It is for defendant to confirm or deny what it allegedly did with the sidewalk. [d] Relatedly, to say there is no evidence on how the metal came to be present on the sidewalk (Brief at 6) is devastating to defendant’s position. A defendant does not establish prima facie entitlement to judgment as a matter of law merely by pointing to gaps in the plaintiff’s proof. Instead, what is required is the affirmative demonstration of the merit of the defense. See, Gammons v. NYC, 2014 NY LEXIS 3440 [2014]; Powers v. 31 E. 31 LLC, 24 NY3d 84 [2014]; Vega v. Restani Corp., 18 NY3d 499 [2012]; Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]. See generally, Cecere v. Zep Mfg., 116 AD3d 901 [2d Dept. 2014]; Aldrich v. Oneida Co., 299 AD2d 938 [4 th Dept. 2002]; Antonucci v. Emeco Industries, 223 AD2d 913 [3d Dept. 1996]; Torres v. Industrial Container, 305 AD2d 136 [1 st Dept. 8 2003]. See, Velasquez v. Gomez, 44 AD3d 649 [2d Dept. 2007]; George Larkin Trucking v. Lisbon Tire Mart, 185 AD2d 614, 614- 615 [4 th Dept. 1992]. And, of course, the evidence must be construed in a light most favorable to the non-moving party. See, Ortiz v. Varsity Holdings, 18 NY3d 335, 339 [2011]. Here, defendant attempts to reverse these burdens of proof; moreover, it makes arguments that refute its own position. For example, its assertions that the photographs demonstrate lack of notice of the defective condition because they show that it was trivial (Brief at 7), and that plaintiff did not notice the condition, support plaintiff’s position. Prefatorily, the photographs depict a clear and visible sidewalk defect that would have been seen had an employee of the defendant actually looked at the sidewalk. Defendant’s attempt to equate plaintiff’s failure to notice the defect, with its employees alleged inability to locate it is simply not congruent with black letter case law on point. Plaintiff was not obligated to anticipate defects on a public way. See, Delaney v. Philhern Realty, 280 NY 461, 466 [1939]; Clifford v. Dam, 81 NY 52 [1880]; see generally, Sparks v. NYC, 31 AD2d 660 [2d Dept. 1968]. Indeed, plaintiff was entitled to a charge to that effect (Lowenstein v. Normandy Group, 51 AD3d 517 [1 st Dept. 2008]; Bunce v. NYC, 261 AD 838 [2d Dept. 1941]; see generally, 9 Hawkins v. NYC, 99 AD2d 481 [2d Dept. 1984]). Thus, the more defendant shows that the defect was not easy to find, the more it supports plaintiff’s position. Clearly, defendant could have constructive notice of a condition even if a person walking on the sidewalk did not see it. Defendant’s employees performed work in the area, and claimed to inspect it daily; they ought to have seen the defect, which is plain upon a view of the photographs. In Weigand v. United Traction, 221 NY 39, 42 [1917], this Court held that a party is “bound to see what by the proper use of her senses she might have seen”, and a claim that one has not seen it is “incredible as a matter of law.” Failure to see what is in plain sight is inculpatory, not exculpatory. See, Kirby v. Montgomery Bros., 197 NY 27 [1909]; Adlam v. Konvalinka, 291 NY 40 [1943]. It cannot provide a basis for the grant of summary judgment to the defendant. See, Reynolds v. Knibbs, 15 NY3d 879 [2010], revsg., 73 AD3d 1456 [4 th Dept. 2010]; Walters v. Costco, 51 AD3d 785 [2d Dept. 2008]. Here, defendant recounts that full time porters such as Marvin Brownshin and Conrad Whyte, failed to detect the defect when they inspected and cleaned the sidewalk; this testimony sets forth the basis for reversal of the Appellate Division’s order as it establishes defendant’s constructive notice of the defect. 10 [e] Defendant claims we inaccurately described Mr. Bellizzi’s opinion as “testimony” “or an affidavit”, since it was an “unsworn report”, and thus plaintiff “failed to submit any sworn expert opinions in opposition to defendant’s motion” (Brief at 9). This simply makes no sense, as defendant included Mr. Bellizzi’s report and affidavit in its motion in chief (160- 202)! Plaintiff was therefore entitled to rely on same (Raso v. Statewide Auto, 262 AD2d 387 [2d Dept. 1999]; see also, Bent v. Jackson, 15 AD3d 46 [1 st Dept. 2005]; Perry v. Pagano, 267 AD2d 290 [2d Dept. 1999]; Ayzen v. Melendez, 299 AD2d 381 [2d Dept. 2002]). Indeed, Mr. Bellizzi’s submissions, being relied on by defendants, may suffice to show that summary judgment is inappropriate (Cardona-Torres v. NYC, 109 AD3d 862 [2d Dept. 2013]), even without consideration of the opposition papers (Chernin v. MTA, 52 AD3d 763 [2d Dept. 2008]; Smalls v. AJI Industries, 10 NY3d 733, 735 [2008], rearg. den., 10 NY3d 885 [2008]; Nancy Ann O. v. Poughkeepsie CSD, 95 AD3d 972 [2d Dept. 2012]). If Mr. Bellizzi’s papers were incapable of establishing or refuting any facts in the case, it was wrong for defendant to include them in its motion papers. Having charted its course in this litigation, defendant is in no position to complain that 11 plaintiff relied upon the evidence it chose to include in its initial papers. [f] Where the gravamen of a claim is that defendant affirmatively created a defective condition, the issue of notice becomes “irrelevant” (Cook v. Rezende, 32 NY2d 596 [1973]), 2 and a party for whom work is done on a public way is liable for the negligence of anyone hired to do the work (Delaney v. Philhern Realty, supra; Wright v. Tudor City, 276 NY 303 [1938]; Rohlfs v. Weil, 271 NY 444 [1936]; Boylhart v. DiMarco & Reimann, 270 NY 217 [1936]). Here, defendant admits that at the time Mr. Bellizzi made his site inspection, “the object had already been removed out of an abundance of caution” (Brief at 9). Accordingly, notice is not even an element that plaintiff must prove in this case. Defendant and Artec Construction & Development Corp. signed a change order to modify the contract for the replacement of 942 square feet of sidewalk in front of the facility on June 25, 2007, 116-19, 124-27, 158-59), so it was proper for Mr. Bellizzi to state that the sidewalk was “newly constructed” and in “excellent condition” except for the “unmarked, unwarned of, unexpected and unanticipated protruding metal stub” which was 2 We failed to cite to Cook in our main brief, but defendant’s new claim that plaintiff’s concession that it removed the defect “out of an abundance of caution” (Brief at 9) justifies us in doing so now, and the issue appears on the face of the record in any event. 12 “extracted from the subject sidewalk flag”, showing the defect had been “cut flush or ground down flush” by defendant’s representatives, and thus the defect was clearly created by defendant. [g] Defendant’s claim that Mr. Bellizzi’s opinion is “entirely unsupportable” because this case involves “an alleged surface defect, not a height differential between adjacent flags” (Brief at 10) refutes itself. Initially, defendant seeks to assert that if a defect is small and not seen by workers, it is trivial as a matter of law (Brief at 10-11). However, triviality does not depend on the height differential; regulations support Mr. Bellizzi’s opinion that a 1/2” height differential can constitute a trap or snare. See, Administrative Code §19-152[a]. Moreover, the pristine condition of the surrounding sidewalk, and the difficulty of seeing the defect, make it clear that the defect is a trap or snare. Arguments that Mr. Bellizzi ignored evidence or attempted to “fudge” facts (Brief at 11) are normal for summation, but inappropriate in a brief defending summary judgment. [h] We ask that this Court reject the argument that plaintiff’s claims are “intrinsically contradictory and self-defeating” 13 because an object cannot be readily apparent yet also not readily visible (Brief at 12). This is a semantic trick, and ignores the distinction between a passerby and the employees of a responsible owner or maintainer of property, as we have shown. Defendant’s argument would immunize responsible parties from liability for defective sidewalk conditions that could cause trip and fall accidents, for the very reason that they are sudden and not readily apparent (Argenio v. MTA, supra). And in this case defendant’s employees were specifically told to look for defects in the sidewalk, and did not see it according to defendant (Brief at 13). Obviously the defect existed, because Mr. Whyte saw it and hit it with his shovel (314-16). Thus the failure of the other employees to see the defect establishes negligence as a matter of law under Weigand. And the bolt was obviously a remnant of a prior construction project, so defendant is liable for not removing it, irrespective of notice. Defendant ignores this whole aspect of the case. Defendant’s discussion of lack of notice (Brief at 13-18) precedes and is more extensive than its discussion of triviality – a silent concession to the truth of our argument that the defect is not trivial as a matter of law and does constitute a trap or snare. 14 [i] Summary judgment based on lack of notice is simply unwarranted under this Court’s decisional law (Catalano v. Tanner, 23 NY3d 976 [2014]); plaintiff’s failure to see the defect is not relevant, as we have shown. And we ask this Court to reject defendant’s attempt to shift the burden of proof to the plaintiff to establish notice on a summary judgment motion (Brief at 14-15). After all, “It is not plaintiff’s burden in opposing the motions for summary judgment to establish that defendants had actual or constructive notice of the hazardous condition”, but “defendant’s burden to establish the lack of notice as a matter of law” (Giuffrida v. Metro North, 279 AD2d 403, 403-404 [1 st Dept. 2001]; see also, Colt v. A&P, 209 AD2d 294, 294-295 [1 st Dept. 1994]). [j] Defendant admits it was “under a duty to make reasonable, visual inspections of the subject sidewalk” (Brief at 15); it offers no case law for the proposition that failing to see what was there to be seen is exculpatory; accordingly, its argument that it lacked notice as a matter of law must fail. That Mr. Whyte cleaned the entire sidewalk every weekday at 8 AM (Brief at 16) only makes his negligence clearer. The condition was not transitory; it was fixed in the sidewalk, had been there for 15 some time, such that it should have been seen by the employees had they been attentive in their work (Brief at 16-17). [k] Defendant cites Trincere v. Suffolk Co., 90 NY2d 976 [1997] for the proposition that the defect was trivial as a matter of law (Brief at 18); this is misleading. Here, defendant’s employees testified that the defect was not visible when they maintained the sidewalk; the defect is abrupt, fixed and rigid, the very definition of a snare or trap. Defendant cites to cases having no factual similarity to the one at bar (Brief at 18-23). The holding in Argenio that visibility bears significantly on whether it is trivial has not been limited to areas such as Grand Central Station, as defendant implies in its brief (Munasca v. Morrison Mgmt., 111 AD3d 564 [1 st Dept. 2013]; Narvaez v. 2914 Third Ave., 88 AD3d 500 [1 st Dept. 2011]). We note that a 1/16” defect was held potentially actionable in Fazio v. Costco, 85 AD3d 443 [1 st Dept. 2011]. A defect that may have “no appreciable depth” can also be actionable (Gonzalez v. Club Monaco, 95 AD3d 549 [1 st Dept. 2012]). [l] Defendant makes no effort to reconcile the proof on this record that the bolt was inconsistent with the sidewalk, abrupt, not readily visible to those who should be looking for it, and 16 capable of stopping Mr. Whyte’s shovel (214-16), with its claim of triviality. Ignoring facts or precedent, of course, does not make them go away. Based on the foregoing, the grant of summary judgment, as recognized by the Appellate Division minority, was not appropriate. CONCLUSION Based upon the foregoing, it is respectfully submitted that the order of the Appellate Division should be reversed in all respects, and that the complaint should be reinstated in full, and that this Court should issue whatever other and further relief it deems just, proper and equitable. Respectfully submitted, GETZ & BRAVERMAN, PC Attorneys for Plaintiff-Appellant By: ________________________________ Brian J. Isaac, Esq. POLLACK, POLLACK, ISAAC & DECICCO, LLP Appellate Counsel 225 Broadway, Suite 307 New York, New York 10007 212-233-8100 Brian J. Isaac, Esq. Of Counsel