Marie Bradley,, et al., Appellants,v.HWA 1290 III LLC, et al., Respondents.BriefN.Y.October 10, 2018New York County Clerk’s Index No. 157576/12 New York Supreme Court APPELLATE DIVISION — FIRST DEPARTMENT MARIE BRADLEY, as Administratrix for the Estate of EDWARD BRADLEY (Deceased), and MARIE BRADLEY, Individually, Plaintiffs-Respondents, against HWA 1290 III LLC, HWA 1290 IV, LLC, HWA 1290 V LLC, and UNITED ELEVATOR CONSULTANTS SERVICE, INC., Defendants-Appellants. >> >> To Be Argued By: Steve S. Efron REPLY BRIEF FOR DEFENDANTS-APPELLANTS SABATINI & ASSOCIATES Attorneys for Defendants-Appellants 237 West 35th Street, Suite 1502 New York, New York 10001 212-239-5900 rjs@sabatini-law.com Printed on Recycled Paper i TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii ARGUMENT ............................................................................................................. 1 I. THIS CASE CANNOT GO TO TRIAL BECAUSE NO ONE SAW HOW THE ACCIDENT OCCURRED ...................................... 1 II. PLAINTIFF’S THREE THEORIES ARE WHOLLY SPECULATIVE, AMONG OTHER FAILINGS ................................. 5 A. The Poor-Lighting Theory .......................................................... 5 B. The No-Helper Theory ................................................................ 9 C. The No-Cover Theory ............................................................... 11 CONCLUSION ........................................................................................................ 18 ii TABLE OF AUTHORITIES Cases Abdullah v. City of N.Y., 203 A.D.2d 397 (2d Dept. 1994) ............................................................................ 2 Ali v. City of N.Y., 57 A.D.3d 391 (1st Dept. 2008) .............................................................................. 5 Aransky v. Comfort Mart Distribs., Inc., 52 A.D.3d 1076 (3d Dept. 2008) .......................................................................... 12 Cappabianca v. Skanska USA Bldg. Inc., 99 A.D.3d 139 (1st Dept. 2012) ............................................................................ 15 Cornwell v. Otis Elevator Co., 275 A.D.2d 649 (1st Dept. 2000) ............................................................................ 6 DeMaria v. RBNB 20 Owner, LLC, 129 A.D.3d 623 (1st Dept. 2015) ............................................................................ 9 Hartnett v. Chanel, Inc., 97 A.D.3d 416 (1st Dept. 2012) ............................................................................ 12 James v. Otis Elevator Co., 854 F.2d 429 (11th Cir. 1988) ................................................................................ 4 Meseck v. General Elec. Co., 195 A.D.2d 798 (3d Dept. 1993) ................................................................... 12, 14 Sawyer v. Dreis & Krump Mfg. Co., 67 N.Y.2d 328 (1986) ........................................................................................... 17 Silva v. 81st St. & Ave. A Corp., 169 A.D.2d 402 (1st Dept. 1991) ........................................................................1, 2 Simon v. Schenectady N. Congregation of Jehovah’s Witnesses, 132 A.D.2d 313 (3d Dept. 1987) .......................................................................... 11 Soto v. Assisted Care Home Attendants Program, 66 A.D.3d 530 (1st Dept. 2009) ..........................................................................2, 3 iii Swerdlow v. WSK Properties Corp., 5 A.D.3d 587 (2d Dept. 2004) ................................................................................ 9 Teplitskaya v. 3096 Owners Corp., 289 A.D.2d 477 (2d Dept. 2001) ............................................................................ 3 REPLY BRIEF FOR DEFENDANTS-APPELLANTS On August 8, 2017, this Court issued an order staying the trial pending this appeal. This Court should now dismiss all of plaintiff’s claims because no one saw the accident, and no one knows why decedent was in the motor room or what he was doing. Plaintiff’s claims are therefore barred by this Court’s rule that liability cannot be imposed for an accident when how the accident occurred is unknown. Plaintiff has three theories about what happened, but each theory rests on mere speculation, and speculation is an insufficient basis for liability. ARGUMENT I. THIS CASE CANNOT GO TO TRIAL BECAUSE NO ONE SAW HOW THE ACCIDENT OCCURRED. This Court’s cases hold that if no one knows how the decedent’s accident occurred, the case may not go to trial. See Defs.’ Br. 10-13 (citing cases); see, e.g., Silva v. 81st St. & Ave. A Corp., 169 A.D.2d 402, 404 (1st Dept. 1991) (to rest liability “on sheer speculation as to how the accident occurred” is “an inadmissible course”). Plaintiff’s burden is to prove that defendants committed negligence and that such negligence was the proximate cause of the decedent’s accident. But because no one saw Mr. Bradley’s accident, plaintiff cannot carry that burden here. Plaintiff does not dispute that the unseen accident rule is the law. Indeed, her brief says nothing about the cases cited by defendants. Plaintiff’s only response is that Mr. Bradley’s cause of death is known. See Pl.’s Br. 15-16. But that observation 2 misses the mark entirely. We know that Mr. Bradley’s cause of death was accidental electrocution; his arm came into contact with a transformer. What we do not know is how that accident happened. We do not know the actual sequence of events that resulted in Mr. Bradley contacting the transformer. Plaintiff cannot avoid the unseen accident rule merely because we know Mr. Bradley was electrocuted. In Silva, for example, it was known that the plaintiff fell off a roof while cleaning a clogged drain. But, since he “had no recollection of the accident” and “no one else witnessed [his] fall,” the plaintiff “failed to identify what it was which brought about his fall, much less point to any act or omission of defendants which could be proximately related thereto.” Silva, 169 A.D.2d at 404. In Abdullah v. City of N.Y., 203 A.D.2d 397 (2d Dept. 1994), the court reversed a jury verdict for the plaintiff, who had been hit by car, because “[t]here was no testimony as to how the incident actually occurred.” Id. at 398. Plaintiff “never saw the car prior to being struck” and the driver did not testify; thus, “the jury was improperly permitted to speculate as to the cause” of the accident. Id. Soto v. Assisted Care Home Attendants Program, 66 A.D.3d 530 (1st Dept. 2009), provides another example. In that case it was known that the decedent died after falling out of bed. But the plaintiff (the administratix of decedent’s estate) “had no personal knowledge of the facts related to the injury” and her lawsuit against an allegedly negligent home health aide was dismissed because the suit was capable of 3 “being proven only by speculation.” Id. at 530 (citing Teplitskaya v. 3096 Owners Corp., 289 A.D.2d 477 (2d Dept. 2001)). In Teplitskaya, the decedent was found on the floor near his bed with a head injury. No one saw what happened, but the floor was covered with paint chips that had fallen from the ceiling. The decedent’s daughter sued the landlord, pressing the theory that the paint chips caused the accident. But the court rejected the paint-chip theory, explaining that it was insufficient to raise a triable issue of fact as to whether the presence of paint chips on the floor was a proximate cause of Teplitskiy’s fall. Since it is just as likely that the accident could have been caused by some other factor, such as a misstep or loss of balance, any determination by the trier of fact as to the cause of the accident would be based upon sheer speculation. 289 A.D.2d at 478. As these cases show, knowing the cause of death (or injury) is not enough when how the accident happened—i.e., the sequence of events that brought about the accident—is not known. In the instant case, plaintiff has her theories. She theorizes that the accident happened because of the amount of light in the motor room, or because Mr. Bradley did not have a full-time helper, or because the transformer did not have some sort of a cover. But plaintiff’s three theories are just as speculative as the paint-chip theory in Teplitskaya, and it is just as likely that the accident had some other cause. Indeed, the fact that that plaintiff has put forward three different theories of how the accident happened is itself evidence that she is 4 only guessing. But a jury trial is no place for such guesswork. Plaintiff’s theories are not the only possible theories. The accident that killed Mr. Bradley might have happened because he did not put on the safety gloves that he had with him. Or because he thought he would be safe if he put rags on the transformers. Or because he dropped some screws and was reaching through the control cabinet to retrieve them from the floor. Or because he landed on the transformers due to “a misstep or loss of balance.” Id. These theories, like plaintiff’s theories, are speculative. If this case were to go to trial, the jury would hear many theories and much speculation, but no evidence about what actually happened. The precedents of this Court and other courts do not permit such an unfair and futile trial- by-speculation. See, e.g., James v. Otis Elevator Co., 854 F.2d 429, 432 n.3 (11th Cir. 1988) (“Thus, to decide this case in James’ favor, the jury would have to ‘flip a coin.’ A fact that can only be decided by a coin toss has not been proven by a preponderance of the evidence, and cannot be submitted to the jury.”). This is not to say that the unseen accident rule is absolute. There could be cases in which circumstantial evidence strongly indicates how an accident occurred, even though no one living saw it happen. But this is not such a case, for there are too many unanswered, and unanswerable, questions. What brought Mr. Bradley to the motor room? What was he doing in the control cabinet? How did he come to make contact with the transformer? Why was he not wearing his safety gloves? Did 5 he place the rags on the transformer?1 If so, why? Because we can only speculate as to the answers to these questions, this is precisely the kind of case in which the unseen accident rule applies. II. PLAINTIFF’S THREE THEORIES ARE WHOLLY SPECULATIVE, AMONG OTHER FAILINGS. A. The Poor-Lighting Theory Plaintiff’s poor-lighting theory provides a perfect example of why the unseen accident rule exists. This theory contends that Mr. Bradley’s accident occurred because of allegedly poor lighting in the motor room. But this is just speculation. We do not know that Mr. Bradley had any trouble seeing in the motor room. And we certainly do not know that lighting conditions caused his accident. This theory amounts to guesswork. Plaintiff relies on the testimony of Juan Melendez, Mr. Bradley’s former helper, who offered his personal view that the lighting in the motor room was “poor.” Pl.’s Br. 5 (citing R. 153 (Melendez EBT pg. 26)). That vague and conclusory testimony is not enough to pin the blame for the accident on the lighting. See Ali v. City of N.Y., 57 A.D.3d 391, 392 (1st Dept. 2008) (testimony that accident site had “very little light” and was “kind of dark” were “mere conclusions … insufficient to 1 In an apparent reference to the rags, plaintiff once alleged that “improper stored materials” in the control cabinet caused an “undesired electrical arc.” R. 351 (Bill of Particulars ¶ 5). But no evidence of an electrical arc was ever developed. 6 establish that the lighting in the area was inadequate”). Melendez’s testimony does not constitute evidence that the light in the motor room caused Mr. Bradley’s accident. Melendez offered his own subjective opinion, and he did not say that Mr. Bradley shared that opinion (which would be hearsay in any event).2 Melendez was not in the motor room on the day of the accident, he did not see what happened, and he has no way of knowing whether the lighting in the room played any part in the accident. The failure of plaintiff’s poor-lighting theory is confirmed by Cornwell v. Otis Elevator Co., 275 A.D.2d 649 (1st Dept. 2000), a case similar to this case. In Cornwell, an elevator mechanic was injured in a motor room when a protruding pin caught his shirt sleeve and drew his arm into moving mechanical parts. In his lawsuit against the building owner, he alleged that inadequate lighting caused the accident. This Court held that the mechanic’s “claim of inadequate lighting in the motor room was properly rejected” because he “worked in the room on a daily basis for three months prior to the accident without ever complaining.” Id. at 650. Mr. Bradley was the resident mechanic in his building for five years. See Pl.’s Br. 2. Yet there 2 That Melendez’s testimony amounts to a subjective opinion is shown by the contrary testimony of Richard Wallace, a property manager at the building, who testified that the motor room had hung fluorescent lights and was “brightly lit.” R. 195 (Wallace EBT pg. 99). Because Melendez’s subjective and vague belief that the light was poor has no probative value, it does not create a factual issue. Cf. Pl.’s Br. 20. 7 is no evidence that he ever complained about the lighting in the motor room. Plaintiff distorts the testimony of her own expert, Dennis Olson. Olson did not opine “that the poor lighting conditions described by Mr. Melendez ‘created a safety hazard for Mr. Bradley.’” Pl.’s Br. 19. Olson actually spoke hypothetically: “Poor lighting conditions would have created a safety hazard for Mr. Bradley.” R. 553 (Olson Aff. ¶ 16) (emphasis added). Olson did not, in fact, opine that the light in the motor room was poor. Nor could he. As he admitted, he did not “conduct any testing with regard to the illumination levels in the room.” Id. (Olson Aff. ¶ 15). Olson claimed he was unable to do any testing because the lighting was changed during the modernization project. In fact, however, there is no record evidence that the lighting in the room was changed during the modernization. Plaintiff notes that a handheld light was found near Mr. Bradley’s body. See Pl.’s Br. 4. But she goes too far in stating that “decedent was using a flashlight at the time of death.” Id. at 18. The fact that the light “was found near his body,” id., does not mean that he was actually using the light. It just means that he carried a light while on the job. See R. 297 (Smith EBT pg. 107) (testimony of Chief Inspector Smith that “[m]echanics always carry a flashlight”). There is no evidence that the light was in the “on” position when it was found. No more is needed to put the poor-lighting theory to rest, but there is more. Chief Inspector Smith, who led the Department of Buildings investigation, testified 8 that he had no difficulty seeing the component parts of the control cabinet and that the light in the motor room was up to code. See R. 288 (Smith EBT pg. 70-71); R. 297 (Smith EBT pg. 107-108); Pl.’s Br. 9.3 It is true that he could not remember at his deposition the “exact illumination” required by the code and that he could not recall whether testing equipment was used to check that the light was to code. See R. 297 (Smith EBT pg. 108-109). But Smith, who served as Chief Inspector for nine years, see R. 272 (Smith EBT pg. 9), testified that “[w]alking into a room I can tell without testing it whether or not it has adequate lighting.” R. 298 (Smith EBT pg. 110). “Based on just my observation without a tester there was adequate lighting. … The motor room would have to be pretty dark in order not to meet the code.” R. 297 (Smith EBT pg. 109). Smith’s testimony is not the only evidence that the light in the motor room was to code. Richard Wallace, the building property manager, testified that New York City periodically inspected the motor room and never indicated to him that the light was inadequate or not to code. See R. 196 (Wallace EBT pg. 101); R. 18 (D&O at 12). While the Smith and Wallace testimony supports 3 Plaintiff improperly cites Chief Smith’s EBT as alleged support for the statement that “even if the lighting was up to code in the motor room there could be dangerous areas where the lighting was inadequate.” Pl.’s Br. 18 (citing R. 298). Smith said no such thing. He never said that the room could be “dangerous” or that the light was “inadequate” in some areas. Nor did he say that transformers were “dangerous exposed.” Pl.’s Br. 22 (citing R. 298). That is plaintiff’s characterization, not Smith’s. 9 the conclusion that the light was to code, there is no evidence whatsoever that the light was not to code.4 B. The No-Helper Theory The IAS court rejected this theory, and this Court should reject it as well. The first reason to reject the no-helper theory is that, like the poor-lighting theory, it rests on speculation. Plaintiff’s theory is that the accident occurred because Mr. Bradley did not have a helper in the motor room. But plaintiff admits that it “is unclear as to what activity decedent was engaged in when he was in the motor room.” Pl.’s Br. 3. It cannot be said that Mr. Bradley’s activity required a helper if the activity is unknown. See id. at 14 (plaintiff’s expert’s opinion is that “it was not possible to ascertain what task decedent was engaged in”); R. 157 (Melendez EBT pg. 42) (former helper’s testimony that he was not aware of what work Mr. Bradley was performing). In the court below, plaintiff argued that a contract between the building and 4 The cases that plaintiff cites do not help her. Swerdlow v. WSK Properties Corp., 5 A.D.3d 587 (2d Dept. 2004) (Pl.’s Br. 19), involved a building that was not subject to the code because it was built more than 50 years before the code’s enactment. DeMaria v. RBNB 20 Owner, LLC, 129 A.D.3d 623 (1st Dept. 2015) (Pl.’s Br. 20), involved a “burnt-out light bulb in the area where plaintiff fell.” Id. at 626. DeMaria recognizes that a building owner is not liable if it did not create or have notice of the allegedly inadequate lighting. See id. In the instant case, there is no evidence that defendants created lighting conditions that were not up to code or that they had notice of any supposedly inadequate lighting. 10 non-party Schindler Elevator Corporation required Schindler to provide a mechanic and a helper to maintain the elevators. See R. 20 (D&O at 14); see also R. 405 (contract § 6.4.1). The IAS court rejected the argument because the contract “expressly precludes nonparties to the contract as third party beneficiaries.” R. 21 (D&O at 15). On appeal, plaintiff does not dispute the IAS court’s rejection of her breach-of-contract argument. See Pl.’s Br. 21. Plaintiff abandons the contract argument and converts the no-helper theory into a negligence argument, contending that “defendants were negligent in failing to provide plaintiff with a helper.” Id. But plaintiff forgets that the defendants were not Mr. Bradley’s employer. Schindler employed Mr. Bradley, but Schindler is not a defendant here. The building defendants cannot be held liable because of Schindler’s decision to assign Melendez to the modernization project.5 The no-helper theory also fails because it is not true. The undisputed evidence presented by Schindler managers John Souter and Douglas Jacobson was that Mr. Bradley could call for a helper anytime he needed one. See Defs.’ Br. 18 (citing 5 Plaintiff arguably failed to raise in the court below the negligence argument she presses here. The IAS court found that, apart from the contract argument, plaintiff did “not claim any other basis on which defendants owed a duty to assign the decedent, who was not their employee, a helper.” R. 22 (D&O at 16). Plaintiff made a different negligence argument in the court below, an argument intertwined with plaintiff’s contract argument. See R. 528-530 (Affirmation in Opp. 28-30). Plaintiff did not raise in the IAS court the free-standing negligence argument she now raises. 11 R. 394-395 (Soutar Aff. ¶¶ 6-7); R. 399 (Jacobson Aff. ¶ 6)). Indeed, Melendez himself testified that if a mechanic were working on a job and needed help, the mechanic could call his supervisor to ask for help to be sent. See R. 162 (Melendez EBT pg. 63).6 Other Schindler employees, including Melendez, were in the building working on the modernization project, and Melendez testified that if Mr. Bradley needed help he could have called on them to help him. See R. 162 (Melendez EBT pg. 62–63). But Mr. Bradley did not call for help. Accordingly, if Mr. Bradley needed a helper on the day of the accident—which is sheer speculation—defendants were not on notice that he needed help. See Simon v. Schenectady N. Congregation of Jehovah’s Witnesses, 132 A.D.2d 313, 316 (3d Dept. 1987) (“Inasmuch as defendant was not on notice that plaintiff needed additional help … defendant did not breach its duty to provide plaintiff protection from reasonably foreseeable risks of injury at the workplace.”). C. The No-Cover Theory Plaintiff’s third theory is that defendants are liable because the transformers in the control cabinet allegedly lacked some sort of a cover. See Pl.’s Br. 23. As with the other two theories, however, this theory is nothing but speculation. See id. 6 Plaintiff’s statement that “there were no elevator personnel available to assist the plaintiff on the day he died,” Pl.’s Br. 3 (citing R. 151 (Melendez EBT)), is simply false and is contrary to Melendez’s actual testimony. 12 at 14 (it is “not possible to ascertain what task decedent was engaged in at the time of his death”). We know that Mr. Bradley was not wearing his safety gloves and that rags were found on a transformer. If we knew what happened in the motor room, his actions might well rule out any liability on defendants’ part. See Hartnett v. Chanel, Inc., 97 A.D.3d 416, 420 (1st Dept. 2012) (“An owner may not be held liable when the accident arose out of the means and methods of a plaintiff’s work, over which the owner had no authority.”); Aransky v. Comfort Mart Distribs., Inc., 52 A.D.3d 1076 (3d Dept. 2008) (plaintiff’s failure to wear his safety gloves held to absolve defendants of any liability); Meseck v. General Elec. Co., 195 A.D.2d 798, 800 (3d Dept. 1993) (defendant’s conduct is not the proximate cause of injury if plaintiff’s “undeniably reckless behavior” is an intervening act). Seeking to distinguish Hartnett, plaintiff states that in that case the “plaintiff’s way of opening a box with a screwdriver—i.e., the way he worked, a matter over which the owner had no authority—was the sole proximate cause of his injury.” Pl.’s Br. 26. But in the instant case, too, the “way” Mr. Bradley worked could well have been the sole proximate cause of his accident, and defendants here had no authority over the way he worked since he was not their employee. No one saw the accident, so we do not know Mr. Bradley’s “way”—except that it involved not wearing safety gloves and might have involved placing rags on transformers. This is the reason for the unseen accident rule. It is unfair and unjust to impose liability for an accident 13 when the facts surrounding the accident are not known.7 Plaintiff’s no-cover theory is also hopelessly vague. Plaintiff never explains what kind of cover she thinks defendants should have installed on the transformers or where defendants could have gone to get such a cover. Plaintiff notes Chief Smith’s testimony that he has seen some transformers with “nonconductive material that is sometimes over contact points.” R. 299 (Smith EBT pg. 114); see Pl.’s Br. 10. But when asked about the “kind of transformer” at issue in this case, Smith testified that he is not aware of any cover or strip on the contract points that is available for purchase. See R. 299 (Smith EBT pg. 115). Melendez testified that “they make covers,” but that testimony is vague and conclusory. Pl.’s Br. 6 (quoting R. 154 (Melendez EBT pg. 29)). There is no evidence in the record that defendants could have acquired any sort cover for the transformers in the control cabinet other than the cabinet itself. Apart from being speculative and vague, the next major failing with plaintiff’s no-cover theory is that it improperly seeks to impose product liability on defendants for a product (the control cabinet) that they did not design or manufacture. See Defs.’ 7 Plaintiff seems to suggest that this case is unlike Hartnett because “the defect in question existed long enough to give defendant[s] a chance to observe and eliminate same.” Pl.’s Br. 26. But the fact that 15 years passed without incident between the 1997 installation of the control cabinet and the 2012 accident actually means that defendants had no notice of any alleged defect. 14 Br. 20-21 (citing cases). Indeed, plaintiff occasionally forgets that this is supposed to be a negligence case and slips into the language of product liability law. See, e.g., Pl.’s Br. 26 (“the electrical control cabinet was defective”). Plaintiff asserts that this case is about defendants’ “property maintenance responsibilities,” Pl.’s Br. 23, but this is not a case involving a broken handrail, grease on the floor, or plaster falling from a ceiling. The control cabinet is not a fixture that defendants failed to maintain. It is a sophisticated piece of electronic equipment. If plaintiff wanted to quarrel with the design of that product, she sued the wrong parties. Meseck v. General Elec. Co., supra, is instructive. The plaintiff in Meseck was electrocuted while taking an oil sample from a large transformer. He alleged that the defendants were negligent because the oil valve was in the high-voltage compartment of the transformer rather than the low-voltage compartment. This Court held that the general contractor that installed the transformer, Murname Associates, was entitled to summary judgment, explaining that “Murname did not have the level of electrical expertise necessary to investigate the interior of the transformer or to recognize a problem in connection therewith.” Meseck, 195 A.D.2d at 799. The same is true of defendants in the instant case; they were not qualified to alter the transformers or other components in the control cabinet manufactured by the O. Thompson Company. See R. 618-620 (Garcia Aff. ¶¶ 5-8). 15 The Meseck court allowed the plaintiff’s suit to continue against the defendants that designed and manufactured the transformer. But defendants in the instant case did not design or manufacture the control cabinet or the transformers. If plaintiff is allowed to go forward with her claim that defendants are liable because they did not alter the design of the control cabinet in the motor room, it could have profound consequences. It could mean that property owners may be found liable for alleged design defects in the products found on the premises, products that were designed and manufactured by other entities. When it comes to a sophisticated product such as an electrical control cabinet, the property owner likely would have no way to assess the product design. Property owners might well have to hire experts to evaluate the designs of the products found on the premises. Because this case is really a products liability case, plaintiff is wrong to view the case as implicating a property owner’s duty to provide workers with a safe place to work. See Pl.’s Br. 24. But even if that body of law were applied, plaintiff’s claim would fail. “Where an existing defect or dangerous condition caused the [worker’s] injury, liability attaches if the owner or general contractor created the condition or had actual or constructive notice of it.” Cappabianca v. Skanska USA Bldg. Inc., 99 A.D.3d 139, 144 (1st Dept. 2012). Here, defendants did not “create” the condition— they did not design or manufacture the control cabinet or the transformers within it. 16 Nor did defendants have notice, actual or constructive, of any allegedly dangerous condition. The control cabinet was made in 1997 by the O. Thompson Company. Environmental Testing Labs (“ETL”) certified that the control cabinet complied with the requirements of the American National Standards Institute (“ANSI”). There is no record evidence that, during the 15 years between 1997 and 2012, there were any prior accidents or complaints involving the control cabinet. Thus, the IAS court was correct to find that the “evidence demonstrates the HWA 1290 defendants’ lack of actual notice of the deficient and hazardous conditions alleged by plaintiffs: the lack of covers for the transformers and the inadequate lighting.” R. 18 (D&O at 12). For the same reasons, defendants had no constructive knowledge of any dangerous condition. The existence of ANSI standard A17.5 § 5.2 does not bolster plaintiff’s no- cover theory. The control cabinet “met all the applicable codes and standards at the time of its manufacture and installation and was safe.” R. 493 (Halpern Aff. ¶ 9). An independent testing organization, ETL, certified in 1997 that the control cabinet complied with the ANSI standard. See R. 491 (Halpern Aff. ¶ 6); R. 618 (Garcia Aff. ¶ 4); R. 627 (Wagner Aff. ¶ 4); see also R. 497 (photo of exemplar cabinet with certification); R. 624 (same). Section 5.2 states that “[b]arriers shall be installed to prevent contact with live parts if inadvertent contact with bare live parts during normal service and adjustment operation is considered probable.” R. 623. Here, 17 there was such a barrier—the cabinet itself. See R. 618 (Garcia Aff. ¶ 2) (“The steel cabinet is the cover for the transformer.”); accord R. 299 (Smith EBT pg. 114). In any event, plaintiff has not shown or even argued that A17.5 § 5.2 represents “the general custom or usage in the industry,” Sawyer v. Dreis & Krump Mfg. Co., 67 N.Y.2d 328, 337 (1986); see Defs.’ Br. 26-27—which means that even if there were a violation of A17.5 § 5.2 (which there was not) such a putative violation could not be considered even evidence of negligence. Finally, plaintiff argues that “Defendants’ failure to address the OSHA violations set forth by plaintiff’s expert is also fatal to their appeal.” Pl.’s Br. 27; see also id. at 12. But defendants had no reason to address the OSHA citation. OSHA issued a citation to Schindler, not to any of the defendants. Furthermore, after Schindler contested the citation, the government withdrew it. See R. 650–651 (Stipulation of Withdrawal); see also R. 574 (Sabatini Affirmation). A contested and withdrawn OSHA citation issued to a non-party is hardly evidence of any negligence on defendants’ part. CONCLUSION For the foregoing reasons, as well as those those stated in defendants’ opening brief, the Decision and Order should be reversed, and defendants should be granted summary judgment dismissing the complaint. Dated: New York, New York September 22, 2017 Respectfully submitted, (jlvCkÿLJ yL Richard J. Sabÿtini SABATINI & ASSOCIATES, L.L.P. 237 West 35th Street, Suite 1502 New York, New York 10001 (212) 239-5900 Attorneys for Defendants-Appellants 18 19 PRINTING SPECIFICATIONS STATEMENT PURSUANT TO 22 NYCRR § 600.10(D)(1)(V) The foregoing brief was prepared on a computer. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point size: 14 Line spacing: Double The total number of words in the brief, inclusive of point headings and footnotes, and exclusive of pages containing the table of contents, table of citations, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc. is 4,564.
