Marie Bradley,, et al., Appellants,v.HWA 1290 III LLC, et al., Respondents.

Brief

N.Y.Oct 10, 2018

1 Tel: (212) 233-8100 Fax: (212) 233-9238 May 14, 2018 HAND DELIVERY Court of Appeals, State of New York 20 Eagle Street Albany, NY 12207-1095 Att.: John P. Asiello, Chief Clerk & Legal Counsel to the Court Re: Bradley v. HWA 1290 III LLC APL-2018-00030 Dear Mr. Asiello: This office is special and appellate counsel to Schwartzapfel Lawyers, PC, attorneys for the plaintiffs-respondents Marie Bradley, individually and as administratrix of the Estate of Edward Bradley, deceased, in the above-captioned matter. I submit this letter memorandum pursuant to 22 NYCRR §500.11, transmitting herewith the briefs and record that were before Appellate Division, First Department. For the reasons set forth herein, it is respectfully submitted that the Appellate Division, in reversing the trial court’s denial of the motion of defendants-appellants, HWA 1290 III LLC, IV LLC, V LLC and United Elevator Consultant Service Inc. (“defendant[s]”), committed reversible error. The 3-2 decision was incorrect on the law and the facts as well as procedurally. Subheadings are used herein for ease of reference. Numbers in parentheses refer to pages of the record on appeal. Facts The HWA 1290 defendants owned 1290 Avenue of the Americas in Manhattan, a 43 story building, and contracted with United to modernize the POLLACK, POLLACK, ISAAC & DECICCO, LLP ATTORNEYS AT LAW www.ppid.com ARTHUR POLLACK (1950-1985) CONRAD E. POLLACK* BRIAN J. ISAAC* FRED A. DECICCO*~ ADAM S. HANDLER*~t JILLIAN ROSEN* H. SUSAN OH* NELSON A. MADRID* WESTCHESTER OFFICE 906 SOUTH STREET PEEKSKILL, NY 10566 TEL: 914-328-2400 225 BROADWAY, 3RD FLOOR NEW YORK, NY 10007 -.PJLCQUN-SELÿ ALLEN E. KAYE* JACOB ARONAUER* GREGG A. PINTO* MICHAEL E. PISTON* ALEXANDRA BONDI KOV + MICHAEL J. FICHERA JR.‘ MATTHEW D. GOODSTEIN*' BELKIS F. GUARDADO* YUNYI PARK*- PAUL SEIDENSTOCK* BRIANNA S. WALSH* YI Z. ZHAO*- ADMITTED IN NY* | NJ~ | MAt | MI* 2 elevator system and machine rooms commencing in January 2012 (7, 150). There were four banks of eight elevators, each with a corresponding machine room (176). United drafted specifications and managed the project, which involved inspections (212-13). Defendant retained Schindler Elevator Corporation, and Mr. Bradley worked for that company as a mechanic; he had been the building’s resident engineer for at least five years prior to his death in the underlying accident (213, 282, 351-52, 393). His helper, Juan Melendez, testified that decedent’s job was to maintain and service the elevators; he “needed two guys all the time” “for safety reasons” (149). United’s contract with HWA required the “Contractor” to “provide one dedicated mechanic and one helper to spend approximately forty (40) hours per week, on site, during normal working hours of 8 AM to 4:30 PM, Monday through Friday” (215). The contract was in effect on March 28, 2012, the date Mr. Bradley met with his death. Mr. Melendez had been removed as decedent’s helper and reassigned to the modernization project full time; no replacement was provided to walk alongside decedent, and no elevator personnel were available to assist him on the day he died (151). The day of the accident, Mr. Bradley was working in an electrical control cabinet in the elevator motor room on the 9 th floor (348-49, 390-91). He was found dead “from electrocution…in front of an open electrical cabinet, which housed an elevator control panel” (7). It is not clear what decedent was doing because no one was in the control room with him. Post-accident investigation, however, establishes that his “right bicep, the right side of his torso, and his chest were in contact with a transformer in the electrical cabinet, and were burned from electrocution” (15). Douglas Smith, an inspector from the Citywide Administrative Services, concluded that the accident occurred at 3:30 PM and decedent was alone at the time (296). The Medical Examiner’s report attributed the death to “electrocution” in which the “right arm contacted an electrical transformer” (375). Photographs were taken before the decedent’s body was removed; they depict a handheld meter and handheld light next to the body (564-66, 708-11). Mr. Melendez testified at a deposition that the lighting in the area was poor, and that in such a situations workers sometimes used “a little flashlight to look into what we were looking inside the cabinet”, because they “couldn’t see otherwise.” If anyone touched a transformer in the cabinet, electrocution would result. The area was “not well lit to access the electrical equipment.” The transformers did not have covers, which was a problem because one could touch them “by mistake” (153). Such covers were normally used as safety devices, but none were used in this building. United performed routine inspections and looked into the cabinets (154). 3 Mr. Smith, the inspector for the Department of Citywide Administrative Services who investigated the incident, testified that decedent’s body was draped over the second of three transformers in the control cabinet (281). His “right arm” must have “made contact with the 2008 watt transformer wire and grounded another part just under his right armpit” (283). The “Medical Examiner showed [him] the contact points on Mr. Bradley’s body”; the marks were “burn marks”, clearly depicted in photos taken by the investigator from the Medical Examiner’s Office; the burn marks were caused by contact between decedent’s body and the transformer (283-84). During his training to be an elevator mechanic, Mr. Smith was taught to “always touch the equipment’s hot circuits with one hand and avoid grounding any other part of your body” when “working with live electrical systems” (274, 285). He did not “see a problem with the lights being an issue” (287). He identified photographs which showed “rags on top of the transformers”; mechanics would place them there “as an insulator” (282, 293), which was not a safe practice (293). Having a helper was beneficial because the helper could hold lights to enable the mechanic to see in relatively dark areas. That lighting was designed to enhance vision in the work area generally where visibility was compromised. While Mr. Smith opined that the lighting in the machine room was Code compliant, when asked what the Code required, he could not say whether it was “five or two” lux, which was the “minimum amount required for adequate lighting.” He had a device to test the lighting, but was “not sure if it was used” (297). There were no documents recording the actual lighting at the sight, and Mr. Smith had no independent recollection of the testing he performed (298). But even where lighting was adequate, additional lighting might be necessary when working on some machines or devices; a helper could flash the light into that area (298). Mr. Smith was asked about uncovered transformers such as the one that electrocuted Mr. Bradley here; he acknowledged that he had seen non-conductive covers on transformers (299). If the contact point that electrocuted decedent “was covered there wouldn’t be any contact points”, “which would have prevented him from being electrocute” (299). Motions On August 5, 2015, defendant moved for summary judgment and dismissal of the complaint, positing that the Labor Law §241[6] claim was not actionable because decedent was not engaged in construction work; the Labor Law §200 and common law negligence claims were meritless because the electrical control 4 cabinet was not defective based on Mr. Smith’s testimony. Furthermore, defendant had no notice of the alleged deficiencies in the lighting or the transformers; the removal of decedent’s helper did not create an actionable claim, as plaintiff was not a third-party beneficiary of the contract between the owner and contractor. An expert affidavit from John Halperin, a licensed professional engineer, opined that the cabinet complied with manufacturing standards and was safe for a mechanic to troubleshoot (489-96). In opposition, plaintiff pointed out that there was an ongoing construction project at the premises and decedent was killed in the 9 th floor motor room at the time construction was taking place. In depriving decedent of a helper, defendants violated their contractual staffing obligations and created a safety violation that led to decedent’s fatal accident. The failure to provide a cover on the transformer that electrocuted decedent, and the poor lighting conditions, created dangerous conditions and violated industry practice (501-39). OSHA’s inspection resulted in a report dated October 2012 finding that defendants violated 29 CFR §1910 §335[a][1][i], and 29 CFR §1910.132[d][1][a] by exposing decedent to unprotected electrical hazards (515-16). Plaintiff’s certified elevator expert, Dennis Olsen, submitted an affidavit in which he noted that the photographs established that the cabinet had “exposed transformers with no safety cover”; United inspected the cabinet on numerous occasions during the two years prior to the accident and should have known this. The Medical Examiner found that the cause of death was right arm contact with an uncovered transformer. Mr. Olsen opined that had the transformer been covered, Mr. Bradley would not have been killed. ANSI standard 17.5, §5.2 requires barriers to prevent contact with live parts “if inadvertent contact with bare live parts during normal service and adjustment operation is considered probable”, but no barrier was erected on the transformers in the #3 control cabinet. There are no records of a service call or corresponding logbook entries to support defendant’s assumption that plaintiff was involved in “troubleshooting” work. OSHA found multiple violations and issued a citation against defendants (550-552). Mr. Olsen further opined that it was simply not possible to ascertain the task decedent was engaged in at the time of his death. Further, the reassignment of Mr. Melendez would have eased any dangerous condition, assisting plaintiff in his work (553). Moreover, with reference Mr. Melendez’s deposition testimony about poor lighting, Mr. Olsen pointed out that such a condition was extremely dangerous because it would have impaired Mr. Bradley’s ability to see his work area, including the uncovered transformers. Since it was inferable that Mr. Bradley was “on his own” and that he needed to “hold an additional item”, a “light”, while 5 trying to perform his work”, plaintiff was exposed to an “unnecessary risk” as a result of defendant’s negligence (553). The Decisions of the Trial Court and the Appellate Division. The trial court, in a well reasoned 16 page decision and order issued on February 28, 2017 granted defendant’s motion to the limited extent of dismissing plaintiff’s claims based on violations of Labor Law §241[6]. Plaintiff’s Labor Law §200 in common law negligence claims were also dismissed insofar as they were based on defendant’s removal of decedent’s helper, since plaintiff was not a third- party beneficiary of the contract between United and the owner. However, the trial court properly denied defendant’s motion with respect to plaintiff’s negligent property maintenance claim, finding multiple issues of fact precluding the grant of summary judgment, based on a view of the evidence most favorable to the plaintiff as the non-moving party. On appeal, the Appellate Division reversed by a 3-2 margin; that decision is now reported at 157 AD3d 627 [1 st Dept. 2018]. After recounting the facts, the Appellate Division rejected Mr. Melendez’s testimony as “conclusory.” Despite the fact that Mr. Melendez stated that the lighting on the 9 th floor motor room was poor, a fact confirmed by plaintiff’s expert, the majority found that there was insufficient evidence to establish that the lighting fell below specific statutory standards “particularly in view of the fact that Olsen, other than merely stating the obvious, namely that poor lighting would have created a safety hazard, critically failed to opine that the lighting in the motor room was not code compliant” a fact that was “fatal to plaintiff’s claim” given the testimony of defendant’s expert, who opined that the lighting in the motor room “was up to code.” This holding does not represent a correct interpretation of the evidence, as we have shown. While Mr. Smith did conclude that the lighting was “up to code”, he did not test it, failed to record in his report whether a light test had been performed, and admitted that the lighting might not have been adequate in the area where plaintiff actually worked (297-298). The Appellate Division majority relied on testimony by Phillip A. Garcia, United’s president, and Richard B. Wallace, the building’s property manager, to support its conclusion that plaintiff’s case was subject to summary dismissal. The majority pointed out that the defendants did not design or manufacture the control cabinet at issue (618, 624). Mr. Wallace testified that he was never informed that there was any problem with the elevator control cabinet or that the transformers 6 lacked the proper cover either by the Department of Buildings or by United, though both conducted inspections of the ninth floor motor room. That finding conflicted directly with defendant’s claim that the danger presented by an uncovered transformer was open and obvious. To quote defendant’s brief: “Here, the transformers were an obvious danger of which Mr. Bradley, who had 18 years in the trade and 5 years in the building…needed no sign to warn him of the electrocution risk… . The transformers themselves were the warning” (Brief at 23). Accordingly, defendant’s arguments in support of their assertion that they were not affirmatively negligent refuted the basis on which the Appellate Division majority dismissed this case. The Appellate Division also noted that Mr. Garcia “testified that a cover was not required on the transformers because the transformers were in an enclosed cabinet.” This, of course, undercuts any lack of notice argument. But the Appellate Division’s finding actually establishes why its decision was incorrect. Defendant’s expert stated that having uncovered transformers posed a known risk. Even Mr. Melendez, plaintiff’s helper, pointed out that there were covers that could have been placed on the transformer to protect those who worked on or with the transformer. The majority also noted that Mr. Smith “testified that if a transformer is in a cabinet, such as these transformers, the cabinet itself operates as the cover for the transformers, and that such a transformer does not have to have a separate cover over them.” Of course, plaintiff’s expert, Mr. Olsen, opined that not having covers in place was a violation of accepted standards and OSHA, an independent testing entity have no stake in the outcome, issued violations to defendant for allowing plaintiff to work with electrical hazards without appropriate protective equipment (552). Mr. Olsen’s reference to the lack of a “barrier or safety cover on the transformer” and the presence of “uncovered transformers” puts the lie to the claim that not covering the transformers, especially in connection with an ongoing elevator modernization and repair project, did not set forth a prima facie negligence claim, since the danger of inadvertent contact was readily apparent. The majority also held, we believe wrongly, that defendant did not have a duty to install covers on the transformers based on the affidavit of Mr. Halperin, defendant’s expert, that neither United nor the owner “had any experience in elevator component design.” Of course, the issue was not whether the defendants were in the practice of designing elevators, but whether they had a duty to maintain 7 same in a reasonably safe condition. Pursuant to Rogers v. Dorchester Associates, 32 NY2d 553 [1973], both an owner and an elevator maintenance company can be liable for defects in elevators that cause foreseeable injuries to third parties. At bar, United, an elevator service company, certainly had knowledge that transformers, which were not covered, posed a risk of electrocution to persons working on the transformers. Accordingly, the fact that a third party manufactured the elevator and control cabinet at issue was legally irrelevant, as was the fact that the Department of Buildings “approved the installation and found not problems with its design.” In this regard, case law plainly holds that issuance of a certificate of occupancy or other acceptance by a governmental agency does not, as a matter of law, satisfy a defendant’s obligation to maintain an area in a reasonably safe condition. See, Gkanios v. Greek Orthodox Community, 193 AD2d 576 [2d Dept. 1993]. Despite this case law, the majority emphasized that Mr. Halperin affirmed that “following the accident, … the inspector who investigated (the) accident for the City did not issue a violation for the design of this controller – which would have carried a hazardous/cease use directive – but rather opined in deposition that this control cabinet was safe because it has a closeable cabinet to protect non-professionals from the electrical hazards inside.” But, this Court has repeatedly emphasized that compliance with minimum regulatory standards does not establish due care as a matter of law. See, Kellman v. 45 Tiemann Associates, 87 NY2d 871 [1995]; Lesocovich v. 180 Madison, 81 NY2d 982 [1993]; Jacquelines v. New York City, 81 NY2d 288 [1993]. 1 In this regard, we note that in Parslow v. Leake, supra at 62, the Appellate Division noted that the fact that defendant’s premises had “been recently inspected by a code enforcement officer and that a new certificate of occupancy had been issued” did not “despite the property’s apparent compliance with the local statutes and regulations” prohibit a jury from determining “that the absence of a screen or fall protection device in the window constituted a dangerous condition.” Accordingly, Mr. Halperin’s opinion was insufficient to establish entitlement to judgment as a matter of law in the first instance. 1 It should be noted that the intermediate Appellate Divisions have endorsed this rule as well. See, Roberts v. United Health, 128 AD3d 1210 [3d Dept. 2015]; Swerdlow v. WSK Properties, 5 AD3d 587 [2d Dept. 2004]; Parslow v. Leake, 117 AD3d 55 [4 th Dept. 2014]; Yahudah v. Metro North, 129 AD2d 429 [1 st Dept. 1987]; Radcliffe v. Hofstra University, 200 AD2d 562 [2d Dept. 1994]. 8 The majority conceded, albeit reluctantly, that plaintiff’s expert, Mr. Olsen, provided contrary opinion evidence. In fact, Mr. Olsen relied on ANSI 17.5, §5.2 that states: Barriers 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. Note: Troubleshooting or the replacement of fuses is not considered a normal service adjustment operation with respect to control equipment, but the resetting of overload devices, repeated adjustment of timers or switches, etc. are considered normal service operations. Stating that “Olsen’s reliance on ANSI is not proper” because “the Environmental Testing Labs, an independent tester/certifier of products in the elevator industry, certified the elevator control cabinet as complying with ANSI requirements”, the majority remarked that even if the control cabinet did not comply with that standard “plaintiffs have failed to establish that defendants were required by law to comply with the above ANSI standard” because same have “not been adopted or incorporated into New York City’s Elevator Code and ANSI itself is not a statute, ordinance or regulation.” This holding is wrong and should be rejected by this Court as being contrary to New York case law on point. It is axiomatic that in situations not involving conclusory testimony, conflicting opinions of experts regarding the same issue create issues of fact that preclude the grant of summary judgment. See, O’Brien v. PA, 29 NY3d 27 [2017]. Even in a case that plaintiff lost, this Court recognized that “ordinarily, the opinion of a qualified expert” supporting a plaintiff’s theory of liability “would preclude a grant of summary judgment in favor of the defendants” (Diaz v. Downtown Hospital, 99 NY2d 542, 544 [2002]). At bar, where plaintiff’s expert examined the same information and arrived at a diametrically opposite opinion from that of defendant’s expert, the Appellate Division majority engaged in issue determination when it rejected the opinion of plaintiff’s expert in favor of that issued by defendant’s expert. See, Sanchez v. State, 99 NY2d 247 [2002]. See generally, Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]. Plainly, competing expert affidavits generally preclude the grant of summary judgment in an ordinary negligence case (Hoover v. New Holland Inc., 23 NY3d 41 [2014]). 9 The majority’s holding that ANSI standards were not applicable because they were not specifically incorporated into the New York City Elevator Code and that ANSI was not a stand alone statute, ordinance or regulation on which plaintiff could rely to establish a prima facie case represented an incorrect application of New York law. Violation of accepted and customary standards is, of course, a recognized basis for imposing liability on a defendant in a negligence case. See, Trimarco v. Klein, 56 NY2d 98 [1982] revsg 82 AD2d 20 [1 st Dept. 1981]. In Trimarco, this Court reversed the Appellate Division’s dismissal of plaintiff’s complaint where the plaintiff’s expert relied on ANSI standards to support his claim that the glass in the shower door that shattered was defective. Indeed, this Court has held that ANSI standards are admissible to prove negligence (Sawyer v. Dreis & Krump Manufacturing Co., 67 NY2d 328 [1986]). So, too, are OSHA regulations (Feiner v. Calvin Klein, 157 AD2d 501 [1 st Dept. 1990]). Plaintiff submits that the Appellate Division’s decision was illogical because it has been consistently held that an expert’s opinions are legally insufficient where “not supported by any empirical data or any relevant industry standard” (Zamor v. Dirtbusters Laundromat, 138 AD3d 1114, 1115 [2d Dept. 2016]). Mr. Olsen, then, was obligated to reference specific standards to reach an opinion that supported his conclusions. Gonzalez v. City of New York, 109 AD3d 510, 512 [2d Dept. 2013], cited by the majority, did not hold that ANSI standards were never admissible in a negligence case. Rather, it held that ANSI itself is not the functional equivalent of a statute, ordinance or regulation and that the trial court in that case, although it did not charge the jury regarding ANSI standards, allowed it to improperly speculate that “defendant’s conduct should be measured against a higher standard of care than is required under the common law” based upon reference to an ANSI standard. At bar, of course, there is no claim that covering an exposed transformer that presents a clear electrical hazard sets forth a standard of care higher than reasonable care. Indeed, under the First Department’s own precedent, the ANSI standard at issue is admissible as a standard of care, the violation of which can result in liability; the regulation does not set forth a standard of care that transcends reasonable care (Rubio v. TA, 99 AD3d 532 [1 st Dept. 2012]; Lopez v. TA, 60 AD3d 529 [1 st Dept. 2009], lv. den. 13 NY3d 717 [2010]). Relatedly, an entity’s non-compliance with an established rule or practice is “some evidence of negligence” (Haber v. Cross County Hospital, 37 NY2d 888, 889 [1975]; Danbois v. New York Central RR Co., 12 NY2d 234 [1963]). 10 Even more difficult to fathom was the majority’s criticism of Mr. Olsen for his observation that United “inspected the #3 control cabinet on numerous occasions in the 2 years prior to March 28, 2012 and thus knew, or should have known, that their transforms lacked this safety cover at the time.” The Appellate Division majority found that that statement as well as Mr. Olsen’s conclusion that “if the transformer had a safety cover then [decedent] would not have been electrocuted” was “speculative and conclusory.” Interestingly, the majority did not support this conclusion with any analysis or reasoning, we submit, because the conclusion is faulty. Prefatorily, Mr. Olsen’s observation that United had to have known of the lack of a transformer cover because it inspected the control panel previously represents a correct factual and legal statement. In Weigand v. United Traction Co., 221 NY 39, 42 [1917], this Court held over a century ago that a statement by a witness that he or she did not see what was there to be seen by the proper use of his or her senses was “incredible as a matter of law” because an individual is “bound to see what by the proper use of (his or) her senses (he or) she might have seen.” Accordingly, Mr. Olsen’s observation that United must have known that the transformers were not covered represents a correct conclusion, fully consonant with this Court’s holdings on the subject. Moreover, the majority’s insinuation that Mr. Olsen’s claim was conclusory because there was no direct evidence to support it was rejected by this Court’s holding in Tarlow v. Metropolitan Ski Slopes, 28 NY2d 410, 414 [1971], in which this Court ruled that experts may give opinions based on information that is “fairly inferable from the evidence.” Interestingly, the rule that an expert’s opinion may be based upon assumed facts that are inferable from the evidence has been accepted by the intermediate Appellate Divisions, including the First Department (Mroz v. 3M Co., 151 AD3d 1606 [4 th Dept. 2017]; Feliciano v. Ford Motor Credit, 28 AD3d 221 [1 st Dept. 2006]). Finally, the majority’s rejection of Mr. Olsen’s assertion that United had actual or constructive notice of the lack of transformers is not congruent with appellate case law on point including decisions from this Court. Plaintiff submits that defendant had actual notice of the uncovered condition of the transformers based on the prior inspections it conducted at the site (Gordon v. American Museum of Natural History, 67 NY2d 836 [1986]). At the very least, defendant had constructive notice of the condition. To constitute constructive notice a defect must be visible and apparent and it must exist for a sufficient length of time prior 11 to the accident to permit defendant’s employees to discover and remedy it (Negri v. Stop & Shop, supra.) Constructive notice involves legal inferences derived from established facts (Bierzynski v. New York Central RR Co., 31 AD2d 294 [4 th Dept. 1969], affd. 29 NY2d 804 [1971]; Birdsall v. Russell, 29 NY 220, 248 [1864]). As noted in Halemeeh MS v. MRMS Realty Corp., 28 Misc.3d 443, 455 [Sup. Ct. 2010], “Constructive notice ordinarily means that a person should be held to have knowledge of a certain fact because he knows other facts from which it is concluded that he actually knew, or ought to have known, the fact in question.” Furthermore, “constructive notice also exists whenever it is shown that reasonable diligence would have produced actual notice.” As this Court noted in Fidelity and Deposit Co. of Maryland v. Queens County Trust Co., 226 NY 225, 233 [1919], “One who has reasonable grounds for suspecting or inquiring ought to suspect, ought to inquire, and the law charges him with the knowledge which the proper inquiry would disclose.” Or, as the First Department stated in Majer v. Schmidt, 169 AD2d 501, 503 [1 st Dept. 1991]: “A persons is chargeable with constructive notice of any fact which would have been disclosed by a reasonably diligent inquiry if circumstances are such as to indicate to a person of reasonable prudence and caution the necessity of making inquiry to ascertain the true facts and he or she avoid such inquiry.” In Adlam v. Konvalinka, 291 NY 40, 43 [1943], this Court held that a defendant is “presumed to know any danger which a reasonable inspection would have disclosed.” Earlier in Kirby v. Montgomery Brothers & Co., 197 NY 27, 31 [1909] this Court wrote: “Whatever source of danger the master would discover by reasonable inspection, he is presumed to know, and constructive notice, through the lapse of time, has the same effect as discovery by actual inspection. At bar, we believe that defendant is chargeable with actual notice of the lack of covers on the transformers. However, assuming that it is acceptable for a party that has actually seen a defective condition to disclaim notice, there is, at the very least, on this record, questions of fact as to whether defendant possessed constructive notice of the lack of covering on the transformers. Such a finding, we submit, should have required affirmance of the trial court’s order denying summary judgment. With respect to the issue of lighting, the majority found that Mr. Melendez’s testimony was “merely conclusory and fails to raise a factual issue as to whether 12 the lighting in the motor room was up to code.” The majority focused on Mr. Smith’s testimony that the lighting in the motor room was up to code and deprecated Mr. Olsen’s testimony that poor lighting was a safety hazard because it was predicated upon Mr. Melendez’s testimony. While the majority cited to decisional law in which poor lighting claims were dismissed for lack of substantiation, the First Department itself has recognized that testimony acknowledging that an area is “dark”, even in the absence of quantification or measurement, is sufficient to establish a basis for an inadequate lighting claim (Lee v. New York City Transit Authority, 138 AD3d 579 [1 st Dept. 2016]; Robbins v. Goldman Sachs, 102 AD3d 414 [1 st Dept. 2013]; Capuano v. Tishman Construction Corp., 98 AD3d 848 [1 st Dept. 2012]). In accepting Mr. Smith’s testimony concerning lighting, the majority ignored the lack of any corroborative evidence establishing that his conclusion was actually correct. And, the majority never explained why Mr. Melendez’s testimony was ignored, since he actually saw the area and was testifying based on personal knowledge. A two-person dissent would have affirmed the trial court’s order and decision. It noted that while sheer speculation as to the cause of an accident is not permissible, proximate cause might nonetheless be demonstrated in the absence of direct evidence of causation by circumstantial evidence. Citing to this Court’s decision in Schneider v. Kings Highway Hospital, 67 NY2d 743 [1986], the dissent noted, “It is enough that plaintiff shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred.” A plaintiff need not eliminate every possible cause of an accident; rather, “the proof must render those other causes sufficiently remote to enable the jury to arrive at a verdict based not on speculation, but rather on logical inferences derived from the evidence.” See, Maresca v. Lake Motors, 25 NY2d 716 [1969]. In this case, plaintiff established prima facie that the cause of decedent’s death was electrocution and the manner of death was an accident that occurred when plaintiff’s right arm contacted the electrical transformer. Any claim that plaintiff’s death was caused by factors other than contacting the transformers was “undercut by the fact that decedent was not found to have contact marks on his hands” so the claim that he passed out or failed to wear safety gloves was wholly speculative. Moreover, there was no evidence that safety gloves would have prevented decedent from being electrocuted. 13 Furthermore, according to the dissent, there was an issue of fact as to whether the negligence of defendant contributed to the accident because of the “lack of a safety cover over the transformers.” ANSI §5.2 provides a proper predicate for the imposition of liability. Moreover, because the parties disputed whether decedent was engaged in “troubleshooting at the time of this death, the applicability of the ANSI regulation was plainly an issue.” In this regard, even defendant’s brief supported the dissent’s declaration that there was a dispute concerning whether decedent’s actions prior to his death fell within the ambit of the ANSI regulation at issue (Brief at 5-6). Mr. Smith wrote in his report that “Bradley appears to have been performing maintenance on the #3 elevator controller in the 9 th floor motor room” (309). While the elevator’s “fault log revealed a brake fault occurred at 1:30 p.m. on 3/28/12, which appears to be the reason for the victim troubleshooting the elevator’s controller” (309) and Mr. Smith testified that the brake fault “would have shut the elevator down and (Bradley) appears to be responding to that elevator for that reason” (76, 289), the ANSI regulation at issue states that “Troubleshooting or the replacement of fuses is not considered a normal service adjustment operation with respect to control equipment, but the resetting of overload devices, repeated adjustment of timers or switches, etc. are considered normal service operations.” Accordingly, whether the regulation applied was plainly an issue of fact, as was the issue of whether it was negligent not to have a cover on the cabinet. The dissent also found there was an issue of fact regarding the adequacy of the lighting. While Mr. Smith testified that the lighting in the machine room was up to Code, he could not recall the minimum requirements for lighting under the Code, and had no independent recollection of having performed the lighting test. Additionally, the fact that decedent was using a flashlight at the time of his death supports plaintiff’s assertion that the lighting was inadequate as did Mr. Melendez’s testimony that he and plaintiff had to use a flashlight in the cabinet because they could not see otherwise; Mr. Melendez’s general testimony about inadequate lighting also supported the sustainability of plaintiff’s failure to light claim. Plaintiff believes that, on this record, the dissent got it right. Accordingly, that this Court should reverse and affirm the trial court’s denial of defendant’s motion for summary judgment. 14 Argument It is axiomatic that a party moving for summary judgment is obligated to establish the merit of his or her claim or defense as a matter of law (DeLourdes Torres v. Jones, 26 NY3d 742, 762-3 [2016]; Jacobsen v. New York City Health and Hospitals Corp., 22 NY3d 824, 833 [2004]; William J. Jenack Estate Appraisers v. Rabizadeh, 22 NY3d 470, 475 [1 st Dept. 2013]). The evidence on such a motion must be viewed “in the light most favorable to the non-moving party” (Ortiz v. Varsity Holdings, 18 NY3d 335, 339 [2011]). Summary judgment is considered a drastic remedy, to be granted only where the moving party has “tendered sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]). This Court has held that the failure to make a prima facie showing of entitlement to judgment as a matter of law in the first instance requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v. NYU Medical Center, 64 NY2d 851 [1985]; Zuckerman v. City of New York, 49 NY2d 557 [1980]. See generally, Vega v. Restani Construction Corp., 18 NY3d 499 [2012]). In the case at bar, construing the evidence in a light most favorable to the plaintiff as the party opposing summary judgment, it is respectfully submitted that reversal of the trial court’s denial of defendant’s motion for summary judgment was plain error. Summary judgment should be denied where there is any ambiguity in the evidence (Pullman v. Silverman, 28 NY3d 1060 [2016]). In O’Connor- Sullivan, Inc. v. Otto, 283 AD2d 269, 272 [3d Dept. 1954]), the Appellate Division noted that a “deficiency in the affidavits on both sides cuts against the plaintiff rather than against the defendant. The plaintiff is the one seeking summary judgment and the burden rests upon it, in the first instance, to set forth ‘such evidentiary facts as shall…establish the cause of action sufficiently to entitle plaintiff to judgment’”. Plaintiff submits that defendant did not rule out its negligence as a matter of law sufficient to warrant the grant of summary judgment. Plainly, under the First Department’s own precedent, a defendant cannot secure summary judgment merely by pointing to “gaps” in plaintiff’s proof (Torres v. Merrill Lynch, 95 AD3d 741 [1 st Dept. 2012]; Alvarez v. 21 st Century Renovations, 66 AD3d 524 [1 st Dept. 2009]; Coastal Sheet Metal Corp. v. Martin Associates, 63 AD3d 617 [1 st Dept. 2009]; Torres v. Industrial Container, 305 AD2d 136 [1 st Dept. 2003]). 15 The autopsy and related records are admissible to establish the cause of plaintiff’s death. See, People v. Nisonoff, 267 AD 356 [1 st Dept. 1944], affd., 293 NY 597 [1944]. In addition, upon a proper foundation, a medical examiner’s report is admissible as evidence in chief. See, People v. Miller, 91 NY2d 372 [1998]. The First Department’s holding that ANSI and related records are inadmissible because they do not constitute statutes or rules is, we submit, contrary to accepted appellate precedent on point. See, Sawyer v. Dreis & Krump Manufacturing Co., supra; Feiner v. Calvin Klein Ltd., supra. The majority’s acceptance of defendant’s claim that it had no notice of the defective condition violates the rule that an individual is presumed to know that which he or she should observe by the proper use of his or her senses (Weigand v. United Traction Co., supra). Furthermore, this finding violates black letter precedent that holds that facts that would place a reasonably prudent person on notice as to the presence of a danger, establishes constructive notice of the condition as a matter of law. See, Adlam v. Konvalinka, supra; Kirby v. Montgomery, supra. The majority’s finding that Mr. Melendez’s testimony about lighting was conclusory, in addition to constituting improper issue determination, violates First Department precedent holding that testimony from an eyewitness concerning his or her observations or opinion cannot be disregarded summarily in the context of a motion for summary judgment. See, Dollas v. W.R. Grace, 225 AD3d 319 [1 st Dept. 1996]; Cochrane v. Owens-Corning Fiberglass, 219 AD2d 557 [1 st Dept. 1995]; Rivera v. City of New York, 212 AD2d 403 [1 st Dept. 1995]; Harris v. City of New York, 147 AD2d 186 [1 st Dept. 1989]. Mr. Melendez’s testimony respecting what he observed in the control room constituted evidence that should have been credited by any reviewing court based on settled summary judgment jurisprudence; the fact that plaintiff was found with a light near him confirms the propriety of the insufficient illumination claim. As we have shown, as a general rule, competing expert affidavits preclude the grant of summary judgment (Adamy v. Ziriakus, 92 NY2d 396 [1998]). Plaintiff is, of course, aware that where an expert states, “his conclusion unencumbered by any trace of facts or data, (the) testimony should be given no probative force whatsoever” (Amatulli v. Delhi Construction Corp., 77 NY2d 525, 533-4 fn 2 [1991]). See generally, Romano v. Stanley, 90 NY2d 444 [1997]). But the affidavit and opinion of plaintiff’s expert here does not suffer from any such infirmity. 16 We reiterate that an expert’s opinions may be derived from inferences drawn from the record evidence (Tarlow v. Metropolitan Ski Slopes, supra). And, in this death case where there are no eyewitnesses to the occurrence, the use of circumstantial evidence to draw conclusions is in no way improper. Indeed, pursuant to Noseworthy v. NYC, 298 NY 76 [1948], plaintiff is entitled to a lesser burden of proof. Interestingly, both this Court (People v. Geraci, 85 NY2d 359 [1995]) and the First Department (Caraballo v. Paris Maintenance Co., 2 AD3d 275 [1 st Dept. 2003]) have noted that circumstantial evidence may be even stronger than direct evidence where based on undisputed facts that human observers would be less likely to mistake or distort. A plaintiff seeking to establish a fact circumstantially is not required to rule out every plausible variable or factor that might have contributed to the accident where plaintiff sufficiently establishes a likelihood that defendant’s negligence resulted in the accident that underlies the action. See, Gayle v. City of New York, 92 NY2d 936 [1998]; Gonzalez v. New York City Housing Authority, 77 NY2d 663 [1991]. Finally, we note that the Appellate Division’s decision exonerating defendant from liability as a matter of law because there was no proof that failing to install covers on the transformers was an unsafe practice is not in accord with the record. OSHA found that the failure to have the transformers covered was a violation that merited a citation to defendant. Further, as we have shown, this Court has routinely held that the fact that compliance with applicable regulations or statutes on point does not absolve a defendant of its common law duty to maintain its premises in a reasonably safe condition. See, Kellman v. 45 Tiemann Associates, supra; Jacquelines v. City of New York, supra. And, given Appellate Division case law holding that an expert’s opinion should be disregarded where the expert does not set forth and identify specific industry standards on which he or she relies (Jones v. City of New York, 32 AD3d 706 [1 st Dept. 2006]), the effect of the First Department’s decision is to invalidate expert affidavits that support conclusions with existing standard or protocols. In Anyie B. v. Bronx Lebanon Hospital, 128 AD3d 1, 3 [1 st Dept. 2015], the First Department noted that generally “the opinion of a qualified expert that a plaintiff’s injuries were caused by a deviation from relevant industry standards would preclude a grant of summary judgment in favor of the defendants”. The First Department’s decision in this case is directly contrary to that previous holding. 17 For all these reasons, this Court should hold that the Appellate Division’s reversal of the trial court’s denial of defendant’s motion for summary judgment by a razor-thin 3-2 vote was error. The order of the trial court should be affirmed and this case should be allowed to proceed to trial. Very truly yours, /s/ Brian J. Isaac Brian J. Isaac, Esq. cc: Via Overnight Mail and E-mail RJS@sabatini-law.com Sabatini & Associates 237 West 35 th Street, Suite 1502 New York, New York 10001 cbartolomucci@kirkland.com H. Christopher Barolomucci, Esq. Kirkland & Ellis, LLP Attorneys for Defendants-Appellants 655 15 th Street NW, Suite 1200 Washington, DC 20005 Tel: 202-879-5022 18 CERTIFICATE OF COMPLIANCE I hereby certify pursuant to 22 NYCRR §500.13(c) that the foregoing §500.11 letter 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 the statement of the status of related litigation; the corporate disclosure statement; the table of contents, the table of cases and authorities and the statement of questions presented required by subsection (a) of this section; and any addendum containing material required by §500.1(h) is 6,621. Dated: May 15, 2018 Respectfully submitted, /s/ Brian J. Isaac BRIAN J. ISAAC, ESQ. POLLACK POLLACK ISAAC & DECICCO, LLP Attorneys for Plaintiff Marie Bradley 225 Broadway, 3 rd Floor New York, New York 10007 212-233-8100