Marie Bradley,, et al., Appellants,v.HWA 1290 III LLC, et al., Respondents.BriefN.Y.Oct 10, 2018SABATINI & ASSOCIATES 237 WEST3 STREET SUITE 1502 NEW YORK, N Y 30001 (212) 239-5900 FACSIMILE: (212) 279-1265 rjswsabatisii-iaw.cQni June 19,2018 BY HAND DELIVERY John P. Asiello Chief Clerk and Legal Counsel to the Court New York State Court of Appeals 20 Eagle Street Albany, New York 12207-1095 Re: Bradley v. HWA 1290 III LLC APL-2018-00030 Dear Mr. Asiello: Pursuant to this Court’s Rule 500.11(d), Respondents HWA 1290 III LLC, HWA 1290 IV LLC, HWA 1290 V LLC (collectively, the “building owners”), and United Elevator Consultants Service, Inc. (“United”) hereby submit their arguments in support of their position on the merits. For the reasons stated in this letter brief, this Court should affirm the judgment of the Appellate Division, First Department. The Appellate Division correctly held that Respondents were entitled to summary judgment dismissing the complaint. See Bradley v. HWA 1290 III LLC, 157 A.D,3d 627 (1st Dept. 2018). No one saw the accident in which Edward Bradley was electrocuted. SABATINI & ASSOCIATES John P. Asiello June 19, 2018 Page 1 Appellant has offered in this case three alternative, and speculative, theories of how the accident happened. The IAS court rejected one theory— that the accident occurred because the decedent did not have a full-time helper. The Appellate Division then rejected the other two theories— that the accident occurred because the lighting in the room was inadequate or because the transformer allegedly lacked a cover and allegedly could and should have had an additional cover that the manufacturer did not include in its product. As shown herein, all three theories fail as a matter of law and fact and were properly rejected by the courts below. The Parties and the Accident Bradley, an experienced elevator maintenance mechanic, was electrocuted as a result of coming into accidental contact with a transformer while servicing a malfunction in one of the building’s elevators. Bradley was working alone at the time, and “there is no evidence of how the accident occurred.” Bradley, 157 A.D.3d at 628. Bradley had been an elevator mechanic for 18 years. See R.282 (Smith EBT pg. 49). For five years, Bradley worked every day in the building as the “resident” or “stationary” elevator maintenance mechanic. Id. Bradley was the employee of SABATINI & ASSOCIATES John P. Asiello June 19, 2018 Page 2 nonparty Schindler Elevator Corporation (“Schindler”), the building’s elevator maintenance contractor. Respondents had no control over Bradley’s work and did not direct how he performed his work. See R.393 (Soutar Aff. United is an elevator consultant retained by the building owners to manage an elevator modernization project and to monitor Schindler’s performance under its elevator maintenance contracts with the building. See Bradley, 157 A.D.3d at 628. The accident occurred in the elevator motor room on the ninth floor, where the elevator control cabinets and hoist motors are located. The time of death is unknown. Bradley last sent a text around 2:30 p.m. See R.234 (Bradley EBT pg. 88). Hours later, building engineers discovered Bradley in the motor room. Bradley, 157 A.D.3d at 628. The Medical Examiner (“M.E.”) concluded that the cause of death was “electrocution” and the manner of death was “accident (right arm contacted electrical transformer).” R.375 (Autopsy Report). Appellant states that the transformer was a “2008 watt transformer.” Bradley Letter Brief (“Br.”) 3. In fact, it was a 208 volt transformer. See R.283 (Smith EBT pg. 52). Bradley was found lying partially inside the bottom of the #3 elevator control cabinet with his body “slumped over a transformer.” R. 239 (Incident Report). The SABATINI & ASSOCIATES John P. Asiello June 19, 2018 Page 3 record contains photos of the control cabinet and the decedent, taken after his body was lifted out of the cabinet. See, e.g., R.269, R.328, R.350, R.359. These photographs show three transformers on the bottom of the control cabinet. (N.B.: Some photos in the record show, not the control cabinet involved in the accident, which was installed in 1997, but different cabinets installed in 2012 during the modernization project. See, e.g., R.500.) Rags, seen in the photographs, were found on top of the transformer on the far right. See R.282, R.293 (Smith EBT pg. 46, 90). Screws and wire nuts were found on the floor beneath the three transformers. See R.338-339 (Dunn EBT pg. 34-37). “Bradley did not have his safety gloves on at the time of the incident. They were found beneath his body.” R.241 (Incident Report); see R.368 (M.E. Report) (“Decedent did not have his rubber gloves on. They were on a clip on his belt.”). FDNY Captain Jeffrey Facinelli responded to the 911 call. He found Mr. Bradley “face down on the floor” with one of his arms “reaching into the cabinet.” R.248 (EBT pg. 24). Bradley’s “right arm and right side of his chest were lying on top of a transformer inside of the control panel.” R.253 (EBT pg. 43). Chief Elevator Inspector Douglas Smith of the New York City Department of SABATINI & ASSOCIATES John P. Asiello June 19, 2018 Page 4 Buildings (“DOB”) investigated the accident. He testified that Bradley was electrocuted when his right arm came into contact with the middle of the three transformers. See R.280 (EBT pg. 40-41). When asked about the rags found on the third transformer, Smith testified that he has seen mechanics place rags on electrical devices as “an insulator of some kind. Not that a rag is a good insulator.” R.293 (EBT pg. 90). He testified that it is not safe for a mechanic to use a rag as an insulator. See id. (EBT pg. 91). Smith’s report for the DOB addressed why Bradley was in the motor room and working in the control cabinet when the accident occurred. “Bradley appears to have been performing maintenance on the #3 elevator controller in the 9th floor motor room.” R.309 (DOB Report). The “#3 elevator’s fault log revealed a brake fault occurred at 1:30pm on 3/28/12, which appears to be the reason for the victim trouble shooting the elevator controller.” Id. Smith testified that the brake fault “would have shut the elevator down and he appears to be responding to that elevator for that reason.” R.289 (EBT pg. 76). As to how the accident occurred, Smith’s report states that “[i]t appears he was working at the bottom of the controller where the transformer was mounted and SABATINI & ASSOCIATES John P. Asiello June 19,2018 Page 5 may have been reaching over and below the transformer when his arm and body made contact.” R.309 (DOB Report). Smith testified that “maybe [Bradley] dropped something, was reaching for something. ... [M]y superiors were asking for a reason why it could have happened. He may have fallen and he may have passed out. He may have been working low at that point reaching for something.” R.290 (EBT pg. 80). Smith stated that these were “all possibilities” but were “all speculation on [his] part.” Id. Respondents did not design or make the control cabinet or any of its electrical components, including the transformers. See Bradley, 157 A.D.3d at 631. The building owners purchased the cabinet in 1997 from the O. Thompson Company, which designed and manufactured it. Id. Photographs of an exemplar control cabinet identical to the one involved in the accident show a label stating “Proudly Made in USA, O. Thompson Company, Glendale, NY.” R.497, R.624; see also R.626-627 (Wagner Aff. 1fl[ 2-4). Appellant notes that OSHA issued a citation after the accident. See Br. 4. But Appellant neglects to mention that the OSHA citation was issued to Schindler, not to any of the Respondents. And, after Schindler contested the citation, OSHA SABATINI & ASSOCIATES John P. Asiello June 19,2018 Page 6 withdrew it See R.650-651 (Stipulation of Withdrawal); R. 574 (Sabatini Affirmation). The withdrawn OSHA citations are irrelevant in this case. Decisions Below In its summary judgment ruling, the IAS court rejected Appellant’s claims insofar as they were based on the theory that Bradley lacked a full-time helper. See R.20-22 (Decision). Notably, referring to Appellant’s case as a whole, the IAS court found that “at this stage plaintiffs have failed to show” any “facts from which defendants’ negligence may be inferred.” R.9 (Decision). Based on that finding, which was correct, the IAS court should have dismissed the complaint in its entirety, although the court did not do so. On appeal, the Appellate Division held that all of Appellant’s common law negligence and Labor Law § 200 claims should have been dismissed on summary judgment. The Appellate Division explained that where an accident is caused by a dangerous premises condition, a property owner is liable “when the owner created the dangerous condition or when the owner failed to remedy a dangerous or defective condition of which he or she had actual or constructive notice.” Bradley, 157 A.D.3d at 630 (ellipses omitted). Appellant agrees that this is the test to be applied in this SABATINI & ASSOCIATES John P. Asiello June 19,2018 Page 7 case. The Appellate Division correctly held that Respondents did not create any dangerous or defective condition and had no notice of any such condition. See id. at 630-633. Theory #7: Alleged Poor Lighting Appellant’s first theory is that the accident occurred because the lighting in the motor room allegedly was inadequate. Appellant relies on the testimony of Bradley’s former mechanic’s helper, Juan Melendez, who testified that he thought the lighting “wasn’t that good at all.” R.153 (EBT pg. 26). Answering an improper leading question to which Respondents objected, Melendez also testified that the lighting in the motor room was “poor.” Id. Appellant improperly ascribes to Melendez the statement that without a flashlight to look into the control cabinet, you “couldn’t see otherwise.” Br. 2. In fact, the quoted words were part of Appellant’s improper leading question to which Respondents objected. See R.153 (EBT pg. 27). In addition to Melendez’s testimony, Appellant relies on the fact that a “stick light” or “light stick” (which Appellant calls a flashlight) was found near Bradley’s body. R.252, R.255 (Facinelli EBT pg. 39, 50). The Appellate Division correctly held that “Melendez’s testimony is merely conclusory and fails to raise a factual issue as to whether the lighting in the motor SABATINI & ASSOCIATES John P. Asiello June 19, 2018 Page 8 room was up to code.” Bradley,157 A.D.3d at 630. No one could properly conclude based on Melendez’s testimony that the light in the room was the proximate cause of Bradley’s accident. Such a conclusion would be nothing but rank speculation. Melendez was not in the motor room on the day that Bradley died, and so his testimony was necessarily based on his experience of being in the motor room on other days. Melendez did not see the accident; he has no way of knowing whether Bradley had any trouble seeing in the room on that day; and he has no way of knowing whether the light was to code. Melendez’s testimony is not any evidence that the light in the room caused Bradley’s accident. Melendez offered his own subjective, vague, and conclusory opinion, and he did not say that Bradley shared that opinion (which would be hearsay in any event). The subjectivity of Melendez’s testimony is shown by the contrary testimony of Richard Wallace, the building property manager, who testified that the motor room was “brightly lit.” R.195 (Wallace EBTpg. 99). Appellant’s expert, Dennis Olson, stated that “[pjoor lighting conditions would have created a safety hazard for Mr. Bradley by impairing his ability to see his work area— including the uncovered transformers.” R.553 (Olson Aff. f16). But SABATINI & ASSOCIATES John P. Asiello June 19, 2018 Page 9 in saying that poor lighting would have created a safety hazard, Olson was “merely stating the obvious.” Bradley, 157 A.D.3d at 630. Olson did not say that the lighting was poor, and he had no basis to offer any such opinion. Thus, Appellant is wrong when she says that Melendez’s testimony that the light was poor was “a fact confirmed by plaintiffs expert.” Br. 5. Olson did no such thing. The record contains evidence that the light in the motor room was to code, Chief Smith, “who conducted the postaccidentand no contrary evidence. investigation, [found] that the lighting in the motor room was up to code.” Bradley, 157 A.D.3d at 630. He testified that “based on the light in the motor room based on code it had adequate lighting.” R.297 (EBT pg. 107); accord id. (EBT pg. 108) (“Q. You stated that the lighting that you just stated was to code in the machine room, right? A. Yes.”). Chief Smith also testified that he had no difficulty with the light in the motor room and had no difficulty seeing the component parts of the elevator cabinet. See R.288 (EBT pg. 71). Appellant asserts that Chief Smith “admitted that the lighting might not have been adequate in the area where plaintiff actually worked.” Br. 5 (citing R.297-298). But that misstates the record. Chief Smith offered no such testimony in the cited record pages or anywhere else. SABATINI & ASSOCIATES John P. Asiello June 19, 2018 Page 10 It is true that Chief Smith did not remember at his deposition the “exact illumination” required by the code and could not recall whether testing equipment was used to check that the light was to code. See R.297 (EBT pg. 108-109). But Smith, who had served as Chief Elevator Inspector for nine years, see R.272 (EBT pg. 9), testified that “[wjalking into a room I can tell without testing it whether or not it has adequate lighting.” R.298 (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 (EBT pg. 109). Chief Smith’s testimony is not the only evidence that the light in the motor room was to code. 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 (EBT pg. 101). And, as the Appellate Division noted, there is an “absence from the record of any evidentiary proof of violations for inadequate lighting.” Bradley, 157 A.D.3d at 630. While the testimony of Smith and Wallace and the absence of violations ail support the conclusion that the light was to code, there is no evidence that the light was not to code. Olson, Appellant’s expert, admitted that he did not “conduct any testing with SABATINI & ASSOCIATES John P. Asiello June 19, 2018 Page 11 regard to the illumination levels in the room,” R.553 (Aff. <[fl5), and thus, “critically, [he] failed to opine that the lighting in the motor room was not code compliant.” Bradley, 157 A.D.3d at 630. Olson asserted that he was unable to do any testing because the lighting was changed during the elevator modernization project. See R.553 (Aff. 1fl5). In fact, however, there is no record evidence that the lighting in the room was changed during the modernization. With respect to the light stick found near Bradley’s body, Chief Smith did not consider it to be relevant. See R.289 (EBT pg. 74). “Mechanics always carry a flashlight,” he testified. R.297 (EBT pg. 107). “We always have flashlights. It’s a tool that we always have with us like a screwdriver or a testing meter. It’s with us at all times.” R.298 (EBT pg. Ill ). Furthermore, there is no evidence that the light stick was in the “on” position when it was found. Thus, there is no factual basis for saying that “decedent was using a flashlight at the time of death.” Bradley, 157 A.D.3d at 637 (Manzanet-Daniels, J., dissenting in part). The light stick was found near his body; but there is no evidence that he was actually using the light stick when he died. Cornwell v. Otis Elevator Co., 275 A.D.2d 649 (1st Dept. 2000), is similar to SABATINI & ASSOCIATES John P. Asiello June 19, 2018 Page 12 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. The Appellate Division 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. Nor did Bradley ever complain. Bradley was the resident mechanic in the building for five years. Yet there is no evidence that he ever complained about the light in the motor room. Numerous cases also reject inadequate lighting claims that rely on testimony that the light was “poor” or “dark.” See, e.g,, Ali v. City of New York, 57 A.D.3d 391, 391 (1st Dept. 2008) (plaintiffs “mere conclusions” that there was “not enough light” and that it was “kind of dark” at the time of the accident were “insufficient to establish that the lighting in the area was inadequate”); see also Bradley, 157 A.D.3d at 630 (citing cases). Accordingly, the Appellate Division properly held that “defendants’ motion for summary judgment dismissing the claims based on inadequate lighting should SABATINI & ASSOCIATES John P. Asiello June 19, 2018 Page 13 be granted.” Bradley, 157 A.D.3d at 630. There is no evidence that Respondents “had any notice of the claimed defect [allegedly inadequate lighting] or that it was a proximate cause of this accident.” Mercado v. Vega,77 N.Y.2d 918, 920 (1991). Theory #2: Alleged Failure to Provide a Full-Time Helper Appellant’s second theory posited that the accident occurred because Bradley’s helper, Melendez, was reassigned to work on the elevator modernization. The IAS court rejected that theory, see R.20-22 (Decision), and it found no traction with the Appellate Division, which evidently did not deem the theory worthy of discussion. The helper reassignment theory is not clearly raised in Appellant’s brief. Thus, it appears that Appellant has abandoned the theory in this Court. See Rule 500.11(f) (“A party shall be deemed to have abandoned any argument made in the intennediate appellate court briefs not addressed or reserved in the letter submission to this Court.”). Out of an abundance of caution, Respondents will set forth here the multiple reasons why the helper reassignment theory fails, any one of which is sufficient to reject the theory. First, Respondents did not reassign Melendez— Schindler did. Schindler was SABMINI & ASSOCIATES John P. Asiello June 19, 2018 Page 14 Melendez’s employer and put him on the modernization project. Respondents cannot be held liable for a decision that they did not make. Second, like the inadequate lighting theory, the helper removal theory rests on sheer speculation. There is no way to know whether Bradley would have avoided electrocution if he had a helper with him. There is no evidence from which a jury could properly find that the reassignment of Melendez proximately caused the accident. There is no evidence that Melendez, whose primary duties included cleaning the elevator motor rooms and helping Bradley when he was on top of an elevator, see R.156 (Melendez EBT pg. 39-40), had ever assisted Bradley in repairing the elevator’s brake control. See R.l 59 (Melendez EBT pg. 50-51). Third, the helper reassignment theory fails because the record shows that if Bradley had asked Schindler for a helper to help him do the work he was doing in the motor room when the accident occurred, Schindler would have provided a helper. The clear and undisputed testimony of Schindler managers John Soutar and Douglas Jacobson was that Bradley could call for and get a helper anytime he needed one. “Schindler made additional manpower available to Ed Bradley as it became This was the practice and procedure of Schindler’s maintenancenecessary. SABATINI & ASSOCIATES John P. Asiello June 19,2018 Page 15 department in 2012 to supply its mechanics with whatever assistance they might require in the field consistent with safety and productivity.” R.394 (Soutar Aff. f6); accord R.399 (Jacobson Aff. (confirming that “during this period Schindler followed its practice of providing its maintenance employees in the field with all additional mechanic and/or helper support which they might require”). Thus, “any time Ed Bradley required assistance during this time it was provided to him.” R.395 (Soutar Aff. f7). Melendez himself testified that if Bradley needed help he could call on one of the people working on the modernization or in the building at the time to help him. See R.162 (EBT pg. 62-63). He also testified that if a mechanic is working on a job and needs help, the mechanic could call his supervisor to ask for help to be sent over. See R.162 (EBT pg. 63). Appellant’s statement that “no elevator personnel were available to assist [Bradley] on the day he died,” Br. 2, which Appellant attributes to Melendez, is therefore false and contrary to Melendez’s actual testimony. Appellant also claims that Melendez testified that Bradley ‘“needed two guys all the time’ ‘for safety reasons.’” Br. 2 (quoting R.149). Once again, however, Appellant has distorted the record. Melendez’s actual testimony was that Bradley SABATINI & ASSOCIATES John P. Asiello June 19, 2018 Page 16 had been given a helper because there were “too many elevators” in the building (36). R.149 (EBT pg. 10) (“Q, Why would he need a helper; why was there a helper there? A. Because it was a two-man job I guess, too many elevators.”). The notion that a helper was needed for safety was put into Melendez’s mouth by Appellant’s counsel; Respondents objected to the misleading questions. See R.149 (Melendez EBT pg. 11-12). Bradley had a helper for a time, not for safety reasons, but because the building at issue “is a premier commercial building in New York City with the building owner paying a premium for timelier servicing of its elevators in order to minimize elevator outages and inconvenience to its tenants.” R.395 (Soutar Aff. f7). Melendez’s reassignment “certainly did not expose Ed Bradley to any added safety issues whatsoever. ... [Ajny time Ed Bradley required assistance during this time it was provided to him.” Id. Fourth, Bradley did not need a helper for the task he was doing when the accident occurred. John Soutar, a Schindler Territory Operations Manager and former lead superintendent for elevator services, stated in his affidavit that he was “familiar with the repair Ed Bradley was engaged in” — Bradley was “troubleshooting the # 3 elevator’s brake ‘Garvac’ unit inside the elevator control SABATIN1 & ASSOCIATES John P. Asiello June 19,2018 Page 17 cabinet” — and that this repair “is a one mechanic job.” R.395-396 (Soutar Aff. f8). “There is no need for a helper for this task.” R.396 (Soutar Aff. f8). Fifth, if Bradley wanted a helper in the motor room on the day of the accident, neither Schindler nor Respondents knew about it. See Simon v. Schenectady N. Congregation of Jehovah’s Witnesses, 132 A.D.2d 313, 316 (3d Dept. 1987) (“defendant was not on notice that plaintiff needed additional help” and thus “did not breach its duty to provide plaintiff protection from reasonably foreseeable risks of injury at the workplace”). Bradley did not call for help. Sixth, the IAS court correctly held the helper removal theory is foreclosed by the contract on which the theory was based. Appellant argued in the IAS court that the contract between the building owners and Schindler required Schindler to assign a helper to Bradley and that reassigning Melendez to the modernization “violated their contractual staffing obligation.” Br. 4. But the IAS court rejected that argument because Article 19 of the contract “expressly precludes nonparties to the contract as third party beneficiaries.” R. 21 (Decision); see R.412 (contract art. 19, “No Third Party Beneficiaries”). In the appeal to the First Department, Appellant did not challenge the IAS court’s construction of the contract. Nor does Appellant SABATINI & ASSOCIATES John P. Asiello June 19, 2018 Page 18 do so in this Court. Bradley could get help whenever he needed it. The speculative (and likely abandoned) theory the accident occurred because Bradley did not have a full-time helper was rejected by both courts below. There is no reason for this Court to come to a different conclusion. Theory #3: Alleged Lack of Cover on Transformers Appellant’s third and final theory is that Respondents are liable because the transformers in the control cabinet— which the building purchased from the manufacturer— allegedly lacked a cover and allegedly Respondents should have modified this high-voltage device that they did not design or make by installing some sort of a cover. The Appellate Division held that “defendants demonstrated that they did not cause or create, or have actual or constructive notice of, the allegedly dangerous condition.” Bradley, 157 A.D.3d at 631. That holding was clearly correct. With respect to whether Respondents caused or created a hazardous condition, the Appellate Division explained that “there is no dispute that HWA and United did not design or manufacture the elevator control cabinet, or any of its electrical SABATINI & ASSOCIATES John P. Asiello June 19, 2018 Page 19 components, including the transformers, which was installed some time in 1997.” Id. “HWA purchased the elevator system from nonparty O. Thompson Company, who designed and manufactured it during or prior to 1997. Plaintiffs proffer no challenge.” Id. As to whether Respondents had notice of any allegedly dangerous condition, the Appellate Division held that Appellant “failed to raise an issue of fact concerning actual or constructive notice.” Id. at 632. Appellant failed to present “any evidence that any complaints were made to defendants by the decedent, Melendez, or anyone else that the lack of covers over the transformers was dangerous, or that defendants should have known that the absence of such a cover was dangerous and was in violation of a statute, ordinance, or regulation.” Id. Appellant also failed to point to “any time when the transformers or the cabinet did not pass inspection, or any industry-wide problems or issues with this type of cabinet and transformers that would provide actual or constructive notice of a dangerous condition.” Id. at 633; see also R.18 (IAS Decision) (finding 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 SABATIN1 & ASSOCIATES John P. Asiello June 19,2018 Page 20 lighting”), While Appellant failed to present any evidence of notice, Respondents presented ample evidence that they were not on notice that the control cabinet or transformers, as designed and made by their manufacturer in 1997, posed a safety hazard when located in an elevator motor room accessible only by elevator maintenance personnel. Wallace, the building’s property manager, “testified that he was never informed that there was any problem with the elevator control cabinet or that the transformers lacked a proper cover either by the DOB or by United despite the fact that both DOB and United conducted inspections of the ninth floor motor room.” Bradley, 157 A.D.3d at 631; see R.197 (Wallace EBT pg. 105); see also R.18 (IAS Decision) (noting that neither New York City nor United reported to Wallace “any deficiencies or hazards in the machine room after inspections”). Philip Garcia, United’s president, “testified that a cover was not required on the transformers because the transformers were in an enclosed cabinet.” Bradley, 157 A.D.3d at 631; see R.618 (Garcia Aff. |2) (“The steel cabinet is the cover for the transformer.”). Garcia testified that “[t]here is no one area or component inside SABATINI & ASSOCIATES John P. Asiello June 19, 2018 Page 21 a controller cabinet which must be covered or which is typically covered or which presents an unusual safety hazard to the servicing mechanic either under applicable code or industry practice.” R.620 (Garcia Aff. “From a consultant’s perspective there is nothing in the Elevator code which alerted United to some unique hazard presented by the transformer which did not have a cover over it.” R.620 (Garcia Aff. f9). Halpem confirmed that other components in the cabinet above the 208- volt transformer presented “as lethal” a danger as the transformer, including the 120- volt brake control unit that Bradley is believed to have been troubleshooting at the time of the accident. See R.492 (Halpem Aff. f8). Chief Smith “testified that if a transformer is in a cabinet, such as these transformers, the cabinet itself operates as the cover for the transformer, and that such a transformer does not have a separate cover over them.” Bradley, 157 A.D.3d at 631. Chief Smith stated that “the cabinet itself is the cover for those transformers. ... [Transformers of this nature don’t usually have a cover on them. Like I said, they are in a control panel, which is the cover.” R.299 (EBT pg. 114). The Appellate Division also pointed to the opinions of Respondents’ expert John Halpern, a Licensed Professional Engineer. See Bradley, 157 A.D.3d at 632; SABATINI & ASSOCIATES John P. Asiello June 19,2018 Page 22 R.489-493 (Halpem Aff.). Halpem stated: Any suggestion that the building owners HWA 1290 and its elevator consultant United Elevator Consultants— neither of which had any experience in elevator component design— should have recognized the absence of a barrier over the transformers in the 1997 manufactured [O.] Thompson control cabinet as a hazard to the Schindler mechanic is unsupportable. ... It is the recognized custom in the elevator industry for the building owners and their elevator consultants to look to the New York City Department of Buildings (“NYCDOB”) for concluding the safety of the design of elevator equipment in service in NYC. When this elevator was modernized in 1997 with the [O.] Thompson controller the NYCDOB approved the installation and found no problems with its design as it did in the multiple inspections and tests performed in the years of NYCDOB inspections of this elevator leading up to the date of the accident. Halpem noted that the DOB in its post-accident investigation “did not issue a violation for the design of this controller— which would have carried a ‘hazardous/cease use’ directive— but rather [Chief Smith, the DOB’s investigator] opined in deposition that this control cabinet was safe because it had a closeable cabinet to protect non-professionals from the electrical hazards inside.” R.492-493 (Aff.18). Halpem added that O. Thompson’s 1997 control cabinet “met all applicable codes and standards” and “was safe.” R.493 (Aff. 19). Barriers “separating the transformers from the other components” in the control cabinet were “not required SABATINI & ASSOCIATES John P. Asiello June 19, 2018 Page 23 under any applicable standards back in 1997 when the subject control cabinet was designed and manufactured.” R.492 (Aff.