Justin Nazario, Respondent,v.222 Broadway, LLC, et al., Respondents.---------------------------------222 Broadway, LLC, et al., Third-Party Respondents, v. Knight Electrical Services Corp., Third-Party Appellant. (And Other Third-Party Actions.)BriefN.Y.November 15, 2016To be Argued by: AMYL FENNO New York County Clerk's Index Nos. 105608/11, 590740111, 590163112 and 590212112 New Vnrk &;upreme Qtnurt Appellate iliuisinu -lliirst ilepartmeut ------~··._ ____ _ JUSTIN NAZARIO, Plaintiff-Appellant-Cross-Respondent, -against- 222 BROADWAY, LLC, JONES LANG LASALLE AMERICAS, INC. and LIME ENERGY CO., Defendants-Respondents. (For Continuation of Caption See Reverse Side of Cover) REPLY BRIEF FOR THIRD-PARTY DEFENDANT- RESPONDENT -CROSS-APPELLANT and SECOND THIRD-PARTY/THIRD THIRD-PARTY DEFENDANT- RESPONDENT -CROSS-APPELLANT WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 150 East 42nd Street New York, New York 10017 (212) 490-3000 eugene. boule@ wilsonelser.com O'CONNOR REDD LLP P.O. Box 1000 242 King Street Port Chester, New York 10573 (914) 686-1700 afenno @oconnorlawfirm.com Attorneys for Third-Party Defendant-Respondent-Cross-Appellant and Second Third-Party/Third Third-Party Defendant-Respondent-Cross-Appellant Knight Electrical Services Corp. Printed on Recycled Paper Index No.: 105608/11 222 BROADWAY, LLC and JONES LANG LASALLE AMERICAS, INC., Third-Party Plaintiffs-Respondents, -against- Third-Party Index No.: KNIGHT ELECTRICAL SERVICES CORP., 590740/11 Third-Party Defendant-Respondent-Cross-Appellant. JONES LANG LASALLE AMERICAS, INC., Second Third-Party Plaintiff-Respondent, -against- KNIGHT ELECTRICAL SERVICES CORP., Second Third-Party Defendant-Respondent-Cross-Appellant. 222 BROADWAY, LLC, Third Third-Party Plaintiff-Respondent, -against- KNIGHT ELECTRICAL SERVICES CORP., Third Third-Party Defendant-Respondent-Cross-Appellant. Second Third-Party Index No.: 590163/12 Third Third-Party Index No.: 590212/12 TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... .iii PRELIMINARY STATEMENT ................................................................................ 1 POINT I THIS COURT MAY REVIEW WHETHER PLAINTIFF'S WORK WAS "ROUTINE MAINTENANCE" OR PROTECTED BY LABOR LAW § 240(1) and §241(6) SINCE NO NEW FACTS ARE ALLEGED ................... 2 A. The Case Law Plaintiff Relies upon Demonstrates Why The Work Was Routine Maintenance .................................................................... 8 POINT II PLAINTIFF'S WORK DID NOT QUALIFY FOR PROTECTION UNDER LABOR LAW §241(6) ................................................................... 13 POINT III LIME ENERGY IS NOT ENTITLED TO CONTRACTUAL INDEMNIFICATION FROM KNIGHT ELECTRICAL ............................. 15 A. The Only Relevant Agreement Is the Subcontract Between Knight Electrical and Lime Energy ..................................................... 15 B. Whether Interpreted under New York or Illinois Law, However, the Indemnification Clause Contained in the Subcontract Between Lime Energy and Knight Electrical Violates Applicable Law ..................... 17 C. Knight Does Not Seek to Arbitrate its Dispute With Lime Energy ... 22 POINT IV KNIGHT ELECTRICAL DOES NOT OWE CONTRACTUAL INDEMNIFICATION TO 222 BROADWAY LLC NOR JONES LANG LASALLE AMERICAS, INC ....................................................................... 23 POINTY JONES LANG AND 222 BROADWAY WERE NOT THIRD PARTY BENEFICIARIES OF THE LIME ENERGY -KNIGHT ELECTRICAL SUBCONTRACT .......................................................................................... 'Il CONCLUSION ........................................................................................................ 30 PRINTING SPECIFICATIONS STATEMENT ..................................................... 31 ii TABLE OF AUTHORITIES Aarons v. 401 Hotel, L.P., 12 A.D.3d 293 (1st Dept. 2004) .................. 9 Acosta v. Banco Popular, 308 A.D.2d 48 (1st Dept. 2003) ................... 4 Aiello v. Burns Inti. Sec. Servs. Corp., 110 A.D.3d 234 (1st Dept. 2013) ...... 28 All Am. Moving & Star., Inc. v. Andrews, 96 A.D.3d 674 (1st Dept. 2012) ..... 28 American Express Bank v. Uniroyal, Inc., 164 A.D.2d 275,277 (1st Dept. 1990), lv den. 77 N.Y.2d 807 (1991) ................................... 25 Auriemma v. Biltmore Theatre, LLC, 82 A.D.3d 1 (1st Dept. 2011) ........... 21 Belmer v. HHM Assoc., Inc., 101 A.D.3d 526 (1st Dept. 2012) ............... 27 Blanco v. NBC Trust No. 1996A, 122 A.D.3d 409, 410 (1st Dept. 2014) ..... 3, 11 Braggy v. Rockefeller Group, Inc., 8 N.Y.3d 675, 680 (2007) ............... 8 Brown v. Two Exchange Plaza Partners, 146 A.D.2d 129 supra at 135 (1st Dept. 1989) .............................................. 26 Brown v. Two Exchange Plaza Partners, 76 N.Y.2d 172 (1990) ............. 21 Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 336, 451 N.E.2d 459 (1983) ........................................ 32 Casabianca v. Port Auth. of N.Y. & N.J., 237 A.D.2d 112 (1st Dept. 1997) ..... 9 ChateauD'IfCorp. v. CityofNewYork, 219A.D.2d205 (lstDept.l996) ... 2,16 Colyer v. K Mart Corp., 273 A.D.2d 809 (4th Dept. 2000) .................. 20 De Oliveira v. LittleJohn's Moving, Inc., 289 A.D.2d 108 (1st Dept. 2001) ..... 9 iii Deoki v. Abner Props. Co., 48 A.D.3d 510 (2d Dept. 2003) ................ 13 Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., 76 N.Y.2d 220 (1990) .. 27, 28 Eisenstein v. Board of Mgrs of Oaks at La Tourette Condominium Sections I-IV 43 A.D.3d 987 (2d Dept. 2007) ................................. 12 Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136 ( 2002) .......... 28 Esposito v. New York City Indus. Dev. Agency, 1 N.Y.3d 526 (2003) ....... 7, 12 Felker v. Corning, Inc., 90 N.Y.2d 219 (1997) ........................... 20 Fox v. H&M Hennes &Mauritz, L.P., 83 A.D.3d 889 (2d Dept. 2011) ........ 11 Garcia v. 225 E. 57th St. Owners, Inc., 96 A.D.3d 88 (1st Dept. 2012) ...... 6, 14 Goodman-Marks Associates v. Westbury Post Associates, 70 A.D.2d 145 (2d Dept. 1979) ............................................. 27 Gordon Group Invs., LLC v. Kugler, 115 A.D.3d 433 (1st Dept. 2014) ...... 2, 16 H.R. Mach Co. v. Rensselaer Water Co., 247 N.Y. 160 (1928) .............. 28 Hernandez v. Ten Ten Co., 31 A.D.3d 333 (1st Dept 2006) ............. 11, 12 Itri Brick & Concrete Corp. v. Aetna Cas. & Sur. Co., 89 N.Y. 2d 786 (1997) .................................................. 17, 21 Jablon v. Solow, 91 N.Y.2d 457, 465-466 (1998) .................... 5,6, 13 Kaehler-Hendrix v. Johnson Controls, Inc., 58 A.D.3d 604 (2d Dept. 2009) ... 28 Konaz v. St. John's Preparatory School, 105 A.D.3d 912 (2nd Dept., 2013) .. 10 LaFontaine v. Albany Mgt., 257 A.D.2d 319 (3rct Dept. 1999), lv den. 94 N.Y.2d 751 (1999) .................................... 9 iv Lebron v. LocoNoche, LLC, 82 A.D.3d 669 (1st Dept. 2011) ............... 28 Mathews v. Bank of Am., 107 A.D.3d 495 (1st Dept. 2013) ................. 22 McCarthy v. Turner Constr., Inc., 17 N.Y.3d 369 (2011) .................. 19 Medina v. City of New York, 87 A.D.3d 907 (1st Dept., 2011) .............. 13 Monaghan v. 540 Inv. Land Co. LLC, 66 A.D.3d 605 (1st Dept. 2009) ......... 3 Naughton v. City of New York, 94 A.D.3d 1 (1st Dept. 2012) ................ 20 Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579 (1994) ............ 28 Panek v. County of Albany, 99 N.Y.2d 452 (2003) ........................ 6 Parraguirre v. 27th St. Holding, LLC, 71 A.D.3d 594 (1st Dept. 2010) ......... 8 Persaud v. Bovis Lend Lease, Inc., 93 A.D.3d 831 (2d Dept. 2012) .......... 26 Picaro v. New York Convention Ctr. Dev. Corp., 97 A.D.3d 511-512 (1 81 Dept. 2012) .................................... 7, 9, 10, 11, 12 Picaso v. 345 E. 73 Owners Corp., 101 A.D.3d 511 (1st Dept. 2012) ...... 17, 21 Ramirez v. Genovese, 117 A.D.3d 930 (2d Dept. 2014) .................... 29 Rios v. WVF-Paramount 545 Prop., LLP, 36 A.D.3d 511 (1st Dept. 2007) ...... 4 Samuel v. Simone Dev. Co., 13 A.D.3d 112 (1st Dept. 2004) ................. 9 Sanatass v. Consolidated Investing Co., Inc., 10 N.Y.3d 333 (2008) .......... 6 Soriano v. St. Mary's Indian Orthodox Church of Rockland, Inc., 118 A.D.3d 524 (1st Dept. 2014) .............................................. 10 Swiderska v. New York Univ., 10 N.Y.3d 792, 792-793 (2008) .............. 8 v Vanek v. Fifth Ave. Management Associates, 75 A.D.2d 559 (1st Dept. 1980) .. 21 Vanship Holdings Ltd. v. Energy Infrastructure Acquisition Corp., 65 A.D.3d 4 (1 51 Dept. 2009) .............................................. 25 Vega v. Renaissance 632 Broadway, LLC, 103 A.D.3d 883 (2d Dept. 2011) ... 14 Surety Co. v. N. Ins. Co. Of New York, 224 Ill. 2d 550 (2007) ............... 20 Walton v. Mercy Call., 93 A.D.3d 460 (1 51 Dept. 2012) .................... 29 vi PRELIMINARY STATEMENT The Reply Brief on behalf of Third-Party Defendant-Cross-Appellant Knight Electrical Services Corp. (hereinafter "Knight Electrical"), in further support of Knight's Cross-Appeal, is submitted in response to the Reply Brief on behalf of Plaintiff-Appellant-Respondent, Justin Nazario, and Respondents' Briefs on behalf of Lime Energy Co. ("Lime Energy), Defendants 222 Broadway, LLC and Jones Lang LaSalle Americas, Inc. 1 POINT I THIS COURT MAY REVIEW WHETHER PLAINTIFF'S WORK WAS "ROUTINE MAINTENANCE" OR PROTECTED BY LABOR LAW § 240(1) and §241(6) SINCE NO NEW FACTS ARE ALLEGED Plaintiff alleges Knight Electrical failed to argue below that Plaintiff's work was "ordinary maintenance" that does not qualify for protection under Labor Law§ 240(1) and§ 241(6) and, therefore, Knight is precluded from raising the issue on appeal. (See Plaintiff's Reply hereinafter "PR" p. 1.) However, Knight Electrical relies on the same facts that were the basis of the parties' motions in support of its contention Plaintiff's work was "routine maintenance" that is not protected by Labor Law§ 240(1) or§ 241(6). This Court has clearly stated: "[w]here, as here, a party does not allege new facts but, rather, raises a legal argument ' "which appeared upon the face of the record and which could not have been avoided ... if brought to [the opposing party's] attention at the proper juncture" ', the matter is reviewable." ( Gerdowsky v Crain's N.Y. Bus., 188 A.D.2d 93, 97,593 N.Y.S.2d 514.) In such circumstances, raising such an issue for the first time on appeal does not prejudice the opposing party's legal position in any respect. * * * Moreover, "a motion for summary judgment, irrespective of by whom it is made, empowers a court, even on appeal, to search the record and award judgment where appropriate." ( Grimaldi v Pagan, 135 A.D.2d 496, 521 N.Y.S.2d 736; CPLR 3212 [b].) See Chateau D'If Corp. v. City of New York, 219 A.D.2d 205 (1st Dept. 1996); see Gordon Group Invs., LLC v. Kugler, 115 A.D.3d 433 (1 51 Dept. 2014). Plaintiff concedes Knight does not raise new facts to support its contention 2 Plaintiff's work was ordinary maintenance. (PR p. 1) Although Plaintiff characterizes the work as a "building-wide lighting renovation project" involving removal of existing lighting "fixtures," no construction, renovation, or demolition work took place; the light fixtures were not removed. Plaintiff concedes the nature of the work"involved removal of older generation fluorescent fixtures with replacement by new long-life, mercury lamps and ballasts." (PR p. 2) The only work was replacement of light bulbs and ballasts, repeatedly characterized by New York Courts as "ordinary maintenance." In seeking to distinguish the facts from precedent, Plaintiff argues the bulbs and ballasts were not replaced due to "wear and tear" but rather for energy efficiency, citing to such cases as Blanco v. NBC Trust No. 1996A, 122 A.D. 3d 409, 410 (P1 Dept. 2014 ). The facts of Blanco are readily distinguishable since, in that case, there was a major renovation project not restricted to replacement of bulbs and ballasts. Plaintiff also relies upon Monaghan v. 540 Inv. Land Co. LLC, 66 A.D. 3d 605 (1st Dept. 2009), suggesting "routine maintenance" results in "restoration of the status quo ante." (PR p. 3) In Monaghan, this Court held Plaintiff was performing routine maintenance when he fell from a ladder while removing a ballast from a fluorescent light fixture. Plaintiff attempts to distinguish Mr. Nazario's work on the basis that "if the lighting project were mere routine maintenance there would be no need to enter 3 into an entirely separate contract with Knight * * * "(PR at 3) Counsel's analysis begs the determinative question of whether the nature of Plaintiff's work was encompassed by Labor Law § 240(1) - whether the work "was more than simply changing a lightbulb, and constituted 'repair[ s]' [or renovation] within the meaning of Labor Law§ 240(1) as the Court suggested in Rios v. WVF-Paramount 545 Prop., LLP, 36 A.D.3d 511 (P1 Dept. 2007). In Rios, Plaintiff was replacing electrical wiring in the ceiling to restore lighting to the floor. /d. Neither Nazario nor his co-workers were replacing wiring, nor restoring lighting. At the time of Knight Electrical's work under its Subcontract with Lime Energy, the Building was fully occupied, and the work was performed on weekends. Neither walls nor ceilings were opened to simply replace the ballasts and bulbs. In conclusory fashion, Plaintiff suggests "[t ]he work involved here effectuated a "significant, affirmative change in the structure" without ever identifying the purported significant change in structure. (PR p. 4) Knight was neither repairing nor altering a "structure" at the time of Plaintiff's accident- but merely changing light bulbs and ballasts. The fact that Knight performed the work under a separate Subcontract did not alter its nature. In Acosta v. Banco Popular, 308 A.D.2d 48 (1st Dept. 2003), Plaintiff fell from 4 a ladder while installing a key box. In holding the work was not protected by Labor Law § 240(1), this Court said: Within the meaning of Labor Law§ 240 (1), "altering" requires "making a significant physical change to the configuration or composition of the building or structure" (Jablon v Solow, 91 N.Y.2d 457, 465, 672 N.Y.S.2d 286,695 N.E.2d 237 [1998] [emphasis in original]; Weininger v Hagedorn & Co., 91 N.Y.2d 958, 672 N.Y.S.2d 840, 695 N.E.2d 709 [1998]). In J obion, the Court of Appeals held that an electrician who fell from a ladder while engaged in chopping a hole through a concrete block wall with a hammer and chisel, and then routing a pipe and wire through the hole to bring electrical power into the next room to support a wall clock, was performing an alteration or repair of a building or structure within the meaning of Labor Law § 240 (1). Similarly, Weininger involved the running of cable through a ceiling by accessing a series of holes in the ceiling and pulling the wiring through "canals." In concluding that such work involved the altering of a building or structure, the Court cited Jablon. In Jablon, * * * although conceding the closeness of the question, [the Court] held: "Jablon did more than the routine act of standing on a ladder to hang a clock on a wall. Bringing an electrical power supply capable of supporting the clock to the mail room, which required both extending the wiring within the utility room and chiseling a hole through a concrete wall so as to reach the mail room is more than a simple, routine activity and is significant enough to fall within the statute" (91 N.Y.2d at 465). Here, the work contemplated would not result in a significant physical change in the configuration or composition of the building ( cf. Panek v County of Albany, 99 N.Y.2d 452, 758 N.Y.S.2d 267, 788 N.E.2d 616 [2003]). Nor was the building's electrical power supply being rerouted. The work here is more akin to the hanging of a clock, which the Court of Appeals in Jablon rejected as constituting an alteration. That a four-pound drill 5 had to be used (to create holes one inch deep), as well as a chip hammer weighing approximately 10 pounds, factors upon which plaintiff places great stress, does not change the obvious: the installation of the duplicate key box was part and parcel of routine maintenance, not an alteration of the building. The work in issue did not involve chopping or drilling holes through a concrete structures, or reroute pipes or wiring. In short, there was no significant physical change to the configuration or composition of the Building or a structure to call into play the provisions of§ 240(1 ). It is irrelevant that the work was performed under a separate contract intended to reduce electrical costs. And the number of employees performing the work did not transform a routine task into a "renovation" or "repair". (See PB p. 4) Plaintiff argues that the task Nazario was performing when he fell was "far more than routine maintenance." He recites the steps involved in replacing the bulbs and ballasts which he suggests was a "demo process" involving "gutting out" the light fixture"; "pretty much everything in the fixture except the external housing" (PB p. 4; R 243; 244; 259-260) However, the work was not demolition within the meaning of the Statute as there was no significant alteration or change to a building or structure . Joblon v Solow, 91 N.Y. 2d 457, 465 (1998); Sanatass v. Consolidated Investing Co., Inc., 10 N.Y.3d 333 (2008); Panek v. County of Albany, 99 N.Y.2d 452 (2003); Garcia v 225 E. 57th St. Owners, Inc., 96 A.D.3d 88, 90 (1st Dept. 6 2012). In Picaro v New York Convention Ctr. Dev. Corp., 97 A.D.3d 511 (1st Dept. 2012), the Court determined Plaintiff was engaged in routine maintenance while changing the entire light fixture in issue. Said the Court: Plaintiff house electrician was engaged in routine maintenance work when he fell from a ladder affixed to a scissor lift after fixing a light fixture (see Monaghan v 540 lnv. Land Co. LLC, 66 AD3d 605, 888 NYS2d 24 [2009]). Indeed, plaintiff testified that he fixed light fixtures about twice weekly, that "nine out of ten times" the house electricians would change the whole fixture * * * and that he retrieved sockets and bulbs from the building's storage area in order to perform his work. * * *Accordingly, plaintiff's work clearly involved "replacing components that require replacement in the course of normal wear and tear" (Esposito v New York City Indus. Dev. Agency, 1 NY3d 526,528,802 NE2d 1080, 770 NYS2d 682 [2003]). /d. Just as in Picaro, Plaintiff Nazario's work involved "replacing components that require replacement in the course of normal wear and tear." !d. As the Court of Appeals decided in Esposito v. New York City Indus. Dev. Agency, 1 N.Y. 3d 526 (2003): "[t]he work*** involved replacing components that require replacement in the course of normal wear and tear. It therefore constituted routine maintenance and not 'repairing' or any of the other enumerated activities." Id at 528. In Nazario's case, the same components were being replaced as in Picaro- bulbs and ballasts- that "require replacement in the course of normal wear and tear." Although the bulbs and ballasts in issue were replaced with more energy efficient 7 bulbs and ballasts, they were nevertheless subject to replacement due to wear and tear, and there was no significant physical change to a building or structure to do so. The work was routine maintenance that allowed Bank of America to continue normal operations while performed. A. The Case Law Plaintiff Relies upon Demonstrates Why The Work Was Routine Maintenance The case law Plaintiff relies to support his claim Nazario's work falls under Labor Law§ 240(1) in fact distinguishes it. Parraguirre v. 27th St. Holding, LLC, 71 A.D.3d 594 (1st Dept. 2010) involved injury while transporting six foot long filters from an elevated structure on a rooftop to ground level for cleaning. In deciding the activity "created the type of elevation-related risk that the Statute was intended to address," the Court decided the work "encompassed an ever present elevation-related risk that the safety devices enumerated in section 240 (1) were designed to protect against." citing (Swiderska v New York Univ., 10 N.Y.3d 792,792-793 (2008) and Broggy v Rockefeller Group. Inc., 8 N.Y.3d 675, 680 (2007) (two window cleaning cases) The Court also determined that the filter room was a "structure" for the purposes of§ 240 (1 ). Nazario's injury did not arise from alteration of a structure but rather from electrocution during the changing of light bulbs. Hence the injury did not arise from an "ever present elevation related risk". 8 In Samuel v. Simone Dev. Co., 13 A.D.3d 112 (1st Dept. 2004), the injured plaintiff was renovating a recording studio by installing carpeting as insulation for soundproofing rather than for cosmetic purposes. The court determined the work significantly changed the physical composition and acoustical function of the premises and was, therefore, encompassed by the Statute. (cf LaFontaine v Albany Mgt., 257 A.D.2d 319 (3rct Dept. 1999), lv den. 94 N.Y.2d 751 (1999). Aarons v. 401 Hotel, L.P., 12 A.D.3d 293 (1st Dept. 2004) is also distinguishable The Court determined that scraping, plastering, skim coating, and painting, were not "routine maintenance" excluded by §§ 240 (1) and 241 (6); extensive scraping and painting was carried out throughout the hotel, and scraping was encompassed by "painting" under§ 240 (1), citing De Oliveira v. Little John's Moving, Inc., 289 A.D.2d 108 (1st Dept. 2001). Likewise, in Casabianca v. Port Auth. of N.Y. & N.J., 237 A.D. 2d 112 (1st Dept. 1997), Plaintiff was using a rolling scaffold to remove ceiling tiles, work plainly encompassed by Labor Law § 240(1 ). Plaintiff suggests Knight Electrical's reliance upon Picaro v. New York Convention Ctr. Dev. Corp., 97 A.D. 3d 511 at 512 (1st Dept., 2012) is misplaced because the house electrician there was injured while replacing a light that needed replacement on a "regular basis." Plaintiff's argument is a distinction without a difference; the light bulbs and ballasts at the Building also required replacement a 9 "regular basis" regardless of why they were being replaced at the time of the accident; the timing of replacement did not alter the nature of the activity which was ordinary maintenance. Plaintiff also attempts to distinguish Konaz v. St. John's Preparatory School, 105 A.D. 3d 912 (2nd Dept., 2013) "since plaintiff was replacing a burnt out ballast." The protections of Labor Law § 240(1) are afforded on the basis of the nature of the activity performed- alteration, repair or demolition of a building or structure- and not the timing of such work. As this Court suggested in Soriano v. St. Mary's Indian Orthodox Church of Rockland~ Inc., 118 A.D.3d 524 (1st Dept. 2014): In distinguishing between what constitutes repair as opposed to routine maintenance, courts will consider such factors as "whether the work in question was occasioned by an isolated event as opposed to a recurring condition" (DosSantos v Consolidated Edison of N.Y., 104 AD3d 606, 607,963 NYS2d 12 [1st Dept 2013]); whether the object being replaced was "a worn-out component" in something that [**62] was otherwise "operable" (Gonzalez v Woodbourne Arboretum, Inc., 100 AD3d 694, 697, 954 NYS2d 113 [2d Dept 2012]); and whether the device or component that was being fixed or replaced was intended to have a limited life span or to require periodic adjustment or replacement (Picaro v New York Convention Ctr. Dev. Corp., 97 AD3d 511, 512, 949 NYS2d 374 [1st Dept 2012]). Id at 527. By their very nature, light bulbs and ballasts have a limited life span and require periodic replacement. In fact, Lime Energy created a schedule for 10 replacement of the light bulbs and ballasts in issue to be upgraded. (R 373). When lighting work is performed in the context of a larger renovation, the courts have held such work is encompassed by Labor Law§ 240(1 ). In Fox v. H&M Hennes & Mauritz. L.P., 83 A.D. 3d 889 (2d Dept. 2011), Plaintiff was replacing ballasts and transformers in seventy-eight overhead light fixtures in a retail store undergoing renovation. This Court's analysis in Blanco v NBC Trust No. 1996A, 122 A.D.3d 409 (r1 Dept. 2014) is instructive. In Blanco, the Court held Dismissal of the Labor Law § 240(1) claim was improper since the lighting work was performed in the context of a larger renovation project and, therefore, was not routine maintenance. In support, the Court cited Hernandez v Ten Ten Co., 31 A.D. 3d 333 (1st Dept 2006) as well as Fox v H & M Hennes & Mauritz. L.P., supra; and invited comparison to Picaro v New York Convention Ctr. Dev. Corp., supra. In Hernandez, the Court found there were triable issues of fact as to whether there was ongoing construction at the premises even though a portion of the premises was functioning as an office. There was testimony that, at the time of the accident, demolition was ongoing, and lighting had not been fully installed in the premises, such that the area where plaintiff was injured had been sealed off from the rest of the premises. It was in the midst of continuing construction that Plaintiff fell from a ladder because of an electrical shock. 11 In contrast to Hernandez, there was no construction work taking place in any part of the Building; Nazario was not participating in ongoing renovation; in fact, the work had to be done on weekends because the space was fully occupied by Bank of America. See Picaro v New York Convention Ctr. Dev. Corp., supra; Esposito v. N.Y. City Indus. Dev. Agency, 1 N.Y.3d 526 (2003); Deoki v. Abner Props. Co., 48 A.D.3d 510 (2d Dept. 2003)(The plaintiff's work involved replacement of a component in a non-construction and non-renovation context and did not constitute erection, demolition, repairing, altering, painting, cleaning, or pointing within the meaning of Labor Law§ 240 (1)). The Second Department distinguished Eisenstein v Board of Mgrs of Oaks at LaTourette Condominium Sections I-IV ( 43 A.D.3d 987 (2d Dept. 2007) on the basis that Eisenstein involved the repair of a lighting fixture rather than routine maintenance.) There was no repair work being performed at the time of Plaintiff Nazario's accident; the work was nothing more than routine replacement of bulbs and ballasts and, therefore, it was not encompassed by§ 240(1). 12 POINT II PLAINTIFF'S WORK DID NOT QUALIFY FOR PROTECTION UNDER LABOR LAW §241(6) The protections of Labor Law §241(6) do not come into play unless Plaintiff's injury arose from construction, alteration, demolition or excavation. J obion v. Solow, supra at 466. Plaintiff characterizes the lighting work in issue as "alteration" or "demolition" which he contends qualifies for Labor Law protection. In Point II, Plaintiff suggests Nazario was demolishing or "gutting out" internal components of the light fixtures. He correctly notes that demolition is defined as"work incidental to or associated with the total or partial dismantling * * * of a structure including the dismantling of machinery or other equipment". 12 NYCRR §23-1.4(b )(16). However, he erroneously concludes removal and replacement oflight bulbs and ballasts equates with demolition as defined by Statute, citing this Court's decision in Medina v. City of New York, 87 A.D.3d 907 (1st Dept., 2011). Medina is not on point. In Medina, the Court held removal and dismantling of rail involving repeated saw cuts was demolition of a structure. The testimony established the rails were removed as part of a five-year capital improvement contract. In contrast, the lighting retrofit in issue was not part of a larger renovation; in fact, the lighting fixtures were replaced - simply the bulbs and ballasts. Therefore, the work does not meet the 13 definition of "demolition" since it was not "incidental to or associated with the total or partial dismantling* * *of a structure* * *". 12 NYCRR §23-1.4(b )(16). As this Court determined in Garcia v 225 E. 57th St. Owners, Inc., 96 A.D.3d 88 (1st Dept. 2012), plaintiff's injury occurred as he was deliberately loosening the mirror to remove it from the wall. The hazard arose from performance of the work, and not from structural instability caused by the demolition work. See Vega v Renaissance 632 Broadway, LLC, 103 A.D.3d 883 (2d Dept. 2011). Under the facts at bar, Nazario's injury arose from an electric shock while preparing to replace a ballast, and not from demolition causing structural instability. For the reasons stated, Plaintiff's ordinary maintenance work did not fall under the protections of Labor Law§ 241(6). 14 POINT III LIME ENERGY IS NOT ENTITLED TO CONTRACTUAL INDEMNIFICATION FROM KNIGHT ELECTRICAL Lime Energy maintains they are entitled to contractual indemnification from Knight Electrical, portrayed as the sole negligent party. In conclusory fashion, Lime argues it was not actively at fault because it "did not direct, control or supervise Knight's work at the site" and its liability is purely vicarious. (LB p. 12-13; 25) However, Lime's contention it did not play an active role on the job site is belied by deposition testimony from Lime own witness, Mr. Potyak. (LB p. 14) Lime Energy is not entitled to contractual indemnification for two reasons: first, the language of the indemnification clause of the Subcontract between Lime Energy and Knight Electrical violates New York General Obligations Law§ 5-322.1 as well as Illinois State law, which the Subcontract states is controlling in the event of party dispute. Second, Lime supervised Knight's work and job site safety pursuant to Lime's agreement with building manager, Jones Lang. A. The Only Relevant Agreement Is the Subcontract Between Knight Electrical and Lime Energy On the date of Plaintiff's accident, Knight was performing work under two separate and distinct agreements. Knight had a "Services Contractor Agreement" with 15 building manager Jones Lang, pursuant to which, Knight performed daily services as in-house electricians. (R 820) Knight also had a "Subcontract for Lighting Implementation" with Lime Energy. It is undisputed Plaintiff Nazario's accident arose from work Knight was performing under its Subcontract with Lime Energy. (R 978-985), Lime concedes Plaintiff's work was carried out under Knight's Subcontract with Lime. (Lime Energy's Respondent's Brief "LB" p. 1) Therefore, the only relevant indemnification clause is the one contained in the Lime-Knight Subcontract. The indemnification clause in Lime's "Subcontract for Lighting Implementation" violates New York General Obligations Law§ 5-322.1 as well as the laws of Illinois which the Subcontract states is controlling in the event of a dispute between Lime Energy and Knight Electrical. (R 982; 978-985) Although Lime argues Knight has newly raised the issue of the contractual choice of law provision on appeal, for the reasons stated supra, Knight has not asserted any new facts, and relies exclusively on the record below in support the argument Illinois law is controlling. Chateau D'IfCorp. v. City of New York, supra; Gordon Group Invs., LLC v. Kugler, supra. Therefore, this Court may consider Knight's argument Illinois law is applicable. 1 1 Defendants 222 Broadway and Jones Lang raise same argument in Point III of its brief. We intend here to address the arguments of all defendants with regard to the application of Illinois law pursuant to the choice of law provision in 16 B. Whether Interpreted under New York or Illinois Law, However, the Indemnification Clause Contained in the Subcontract Between Lime Energy and Knight Electrical Violates Applicable Law Whether the indemnification clause contained in the Lime-Knight Subcontract is interpreted under New York or Illinois law, the clause violates the laws of both states, since it requires Knight to indemnify Lime "whether or not through its or their negligence, arising from the Work performed hereunder." (R 983) There is no savings clause, e.g. "to the extent permitted by applicable law," to ameliorate the language which clearly contemplates Knight will indemnify Lime for active negligence. Lime argues in circuitous and conclusory fashion it was not negligent and, therefore, the indemnification provision does not offend GOL § 5-322.1. Assuming New York law applies, enforceability of GOL § 5-322.1 is not contingent upon Lime's representation it was not actively at fault, a contention belied by the record. Under GOL § 5-322.1, enforcement of the indemnification clause is barred if Lime, the proposed indemnitee, may be found liable for negligence. ltri Brick & Concrete Corp. v Aetna Cas. & Sur. Co. 89 N.Y. 2d 786 (1997); Picaso v. 345 E. 73 Owners Corp., 101 A.D.3d 511 (1st Dept. 2012). Here, the record provides ample proof of Lime's potential liability for negligent supervision of job site safety. the Subcontract between Lime and Knight. (See JB, p. 35) 17 Lime Energy's agreement with building manager Jones Lang imposed a non- delegable duty job site safety oversight. (R 887-973) Contrary to Lime's representation it did not have employees onsite during Knight Electrical's work, Joseph Potyak of Lime testified he personally supervised Knight's work pursuant to the requirements of Lime's Service Contractor Agreement with Jones Lang. Moreover, Potyak was onsite throughout Knight's work in issue. (R 889-943) Potyak was thoroughly familiar with the parties' contracts. Under Lime's "Service Contractor Agreement" with Jones Lang: Section 10. Assignment and Delegation 10.01 Service Contractor shall be absolutely prohibited from assigning this Agreement or delegating or subcontracting any of the Contract Duties (or any right, obligation or performance of Service Contractor hereunder), it being agreed that the services to be performed hereunder are personal in nature. Any attempted assignment or subletting of this Agreement or any delegation or subcontracting of any Work or Additional Work without Client's prior written consent which may be withheld in Client's sole and absolute discretion, shall be void and of no force and effect. * * * Section 16. Compliance with Safety Regulations Service Contractor shall plan for, and ensure, that all personnel performing any Work or Additional Work comply with the basic provisions of OSHA Safety and Health Standards (29 CFR 1910) and General Construction Standards (29 CFS 1926) as such federal regulations are applicable to the specific tasks constituting the Contract Duties and Additional Work (if any). The responsibility for the implementation and enforcement of health and safety requirements lies with Service Contractor, and its safety support staff. * * * Service 45 Contractor shall take all necessary and desirable 18 precautions for the safety of, and provide the necessary protection to prevent damage, injury, or loss to: a. All personnel on the work site * * * (R 897-898) Potyak, Lime's construction manager, was Lime's senior representative on site. (R 521) He was personally involved in the day-to-day work until completion. (R 460- 461; 4 70; 530) He was responsible for paying Knight Electric weekly upon inspection of Knight's work. (R 461) Pursuant to Lime's contract with Jones Lang, Potyak's work encompassed safety oversight and job site supervision, work made non- delegable under the Jones Lang Agreement. Potyak never inquired whether Knight assigned anyone to jobsite safety. (R 544) Lime's contention it did not have employees on site is simply untrue. (LB p. 3) Contrary to Lime's contention it did not "direct, control or supervise Knight's work at the site" "nor did it dictate the means and methods of how Knight or Plaintiff performed the work," Lime's project manager Mr. Potyak supervised the project to completion. Therefore, under Labor Law § 240(1) and § 241(6), Lime Energy, project manager and safety coordinator, is liable for negligent supervision of Knight's work. See McCarthy v Turner Constr .. Inc., 17 N.Y.3d 369 (2011). ("Liability for indemnification may only be imposed against those parties (i.e., indemnitors) who 19 exercise actual supervision." citing Felker v. Corning, Inc., 90 N.Y.2d 219 (1997); Colyer v. K Mart Corp., 273 A.D.2d 809 (4th Dept. 2000); Naughton v City of New York, 94 A.D.3d 1 (1st Dept. 2012). Since Lime exercised safety and supervisory responsibility, if Plaintiff's accident arose from failure to turn off electrical power- an apparent safety issue- the accident arose from Lime's negligent safety oversight. On this basis, the indemnification clause contained in the Subcontract violates GOL § 5-322.1 as well as Illinois law. (R 896; 982; 978-985) Under laws of both states, Lime as indemnitee is precluded from insulating itself from liability for its own negligence. The indemnification clause requires Knight to indemnify Lime for its active negligence -including the failure to properly supervise jobsite safety. See 740 ILCS 35/3. Sections 1 and 3 of the Illinois Statute, 740 ILCS 35/3, provides that contracts for construction, repair or maintenance that attempt to hold a party harmless for their own negligence are "void as against public policy and wholly unenforceable." /d. Therefore, whether the indemnification clause contained in the Subcontract between Lime Energy and Knight Electrical is interpreted under Illinois or New York Law, the clause is void since it requires Knight to indemnify Lime for active negligence. Virginia Surety Co. v. N. Ins. Co. Of New York, 224 Ill. 2d 550 (2007). The case law Lime has relied upon is inapposite since Lime's potential liability 20 is for its own negligence and is not purely vicarious. Brown v. Two Exchange Plaza Partners, 76 N.Y.2d 172 (1990), stands for the proposition that when there is no evidence of active fault on the part of a general contractor, an indemnification clause indemnify them for negligence does not violate GOL§ 5-322.1. Id at 181. In Nazario's case, there is ample proof his injury was caused by Lime's negligent supervision and safety oversight. Auriemma v. Biltmore Theatre, LLC, 82 A.D.3d 1 (1 51 Dept. 2011 ). Vanek v. Fifth Ave. Management Associates, 75 A.D.2d 559 (1 51 Dept. 1980) simply stands for the proposition that a party vicariously liable may shift liability to an actively negligent party. This proposition does not alter the fact that, when a general contractor is negligent, it may not insulate itself from liability through a contractual indemnity clause. ltri Brick & Concrete Corp. v Aetna Cas. & Sur. Co. , supra; Picaso v. 345 E. 73 Owners Corp., supra. Lime's reliance on case law addressing common law negligence and Labor Law§ 200 is misplaced as Lime correctly state these claims were dismissed. (LB p. 30) The issue is Lime's liability under Labor Law § 240(1) and § 241(6). Acknowledging the controlling case law addressing claims for contractual indemnity under these Labor Law sections, Lime's counsel argues in conclusory fashion, that since Lime's liability is vicarious, the indemnification clause "does not run afoul of 21 General Obligations Law§ 5-322.1. In Mathews v. Bank of Am., 107 A.D.3d 495 (1st Dept. 2013), relied upon by Plaintiff, unlike the facts at bar, there was no evidence the proposed indemnitee was negligence. Whether interpreted under New York or Illinois law, Lime Energy is precluded from enforcing the indemnification clause in the Lime-Knight subcontract since it purports to indemnify Lime for negligent supervision and job site safety. C. Kni~ht Does Not Seek to Arbitrate its Dispute With Lime Ener~y While Lime suggests Knight Electrical waived its contractual right to arbitrate, Knight has not sought this relief. (LB p. 31) Lime relies on New York case law rather than Illinois law in support of its assertion Knight waived its right to arbitrate; the arbitration provision plainly calls for application of Illinois law. Regardless of whether New York or Illinois law is applied, however, under the laws of both states, Lime Energy is precluded from enforcing the applicable contractual indemnification provision since the laws of both states prohibit enforcement when there is evidence of active fault on the part of the proposed indemnitee. Lime does not dispute the law in this regard is the same in both states. Therefore, Lime's lengthy choice of law discussion is irrelevant to the critical issue- it may not enforce the indemnification clause in the face of substantial proof it bears independent liability for negligent supervision and safety enforcement. 22 POINT IV KNIGHT ELECTRICAL DOES NOT OWE CONTRACTUAL INDEMNIFICATION TO 222 BROADWAY LLC NOR JONES LANG LASALLE AMERICAS, INC. There is no dispute Knight worked at the Building under two separate and distinct agreements, or that Plaintiff Nazario was carrying out light bulb and ballast replacement pursuant to Knight's Subcontract with Lime Energy. Neither 222 Broadway nor Jones Lang were parties to or third party beneficiaries of the Lime- Knight Subcontract. 222 Broadway and Jones Lang confuse and conflate two distinct agreements involving Knight, presumably seeking to benefit from the only indemnification clause under which they are named indemnitees - the Service Contractor Agreement between Jones Lang and Knight. (See Knight Electrical Original Brief, p. 19-20; R 760-769) Under this Agreement, Knight was the in-house electrician at the Building. However, Nazario's injury did not "arise out of' nor was it "connected in whole or in part to" Knight's work as in-house electricians. There is no dispute Nazario never worked at the building before his accident, and was brought in exclusively for the lighting upgrade work under the Lime-Knight Subcontract. According to Romulo De Leon, Knight's service manager, De Leon dispatched Plaintiff Nazario for the lighting 23 retrofit the day of his accident to give him overtime work. (R 641; 655) An entirely separate crew was assigned to regular maintenance under Knight's agreement with Jones Lang. (R 634) The Service Contractor Agreement between Jones Lang and Knight Electrical, Section 8 entitled "Indemnification" plainly provides: 8.1 Service Contractor [Knight Electrical] shall indemnify, defend, and hold harmless Client, Owner and Bank of America * * * from and against * * * claims * * * that arise out of or are alleged to arise out of or are related to or are connected in whole or in part to* * * any act or omission by Service Contractor, its employees * * * in the performance of Service Contractor's obligations under this agreement * * * (R 760-769) Since Nazario's accident not "arise out of' nor was it "related to" the work set forth in the Service Contractor Agreement, the indemnification clause of that agreement is inapplicable. Exhibit "A" annexed to the Jones Lang- Knight Agreement contains a "Description of Work" that states: Contractor shall agree to render Electrical Daily Building Maintenance to Customer at four specified locations in New York City as described in this Scope of Work* * * (R 760-769) Nazario's work was not part of the daily building maintenance at 222 Broadway, but was instead lighting work under the Lime Energy-Knight Subcontract. 24 Therefore the claim by 222 Broadway and Jones Lang that "the lighting renovation work was carried out pursuant to the Service Agreement between Jones Lang and Knight and the subcontract between Knight and Lime" is simply untrue. (See Defendant-Respondent brief on behalf of 222 Broadway and Jones Lang, "JB", p. 24) There is no proof the two agreements overlapped, were connected, or were intended to be read together. The agreements involved different parties and beneficiaries, and must be interpreted, as a matter of law, according to their plain meaning. This Court has repeatedly held when interpreting a contract, that words and phrases should be given their plain meaning. Vanship Holdings Ltd. v. Energy Infrastructure Acquisition Corp., 65 A.D.3d 4 (1st Dept. 2009); American Express Bank v Uniroyal, Inc., 164 A.D. 2d 275,277 (P1 Dept. 1990), lv den. 77 N.Y.2d 807 (1991). Where the intent of the parties can be determined from the face of the agreement, interpretation is a matter of law. /d. Defendants Jones Lang and 222 Broadway also allege Knight's "house" electricians, Mr. Savasta and Mr. Mavarutis, "were an integral part of the process by which the electrical breakers would be shut off," stating "they controlled and supplied the keys" and caused delay on the date of Plaintiff's accident. (JB p. 25) There is no evidence whatsoever Mr. Savasta or Mr. Mavarutis had involvement in the lighting upgrade work; counsel has referenced no deposition testimony or other evidence in 25 support of its bald assertion Savasta or Mavarutis participated in the lighting upgrade work. To the contrary, De Leon, Knight's foreman, clearly testified the lighting retrofit job was performed by a separate Knight crew. De Leon testified he shut down the breakers the date of the accident. (R 677-678) Counsel's attempt to muddle the record by suggesting the house electricians were involved is simply unsupported by any evidentiary proof. Jones Lang and 222 Broadway also suggest that since the indemnification clause in the Subcontract between Lime and Knight "does not mandate indemnification for a claim caused by the negligence of either [Jones Lang] or [222 Broadway]" the clause does not violate GOL § 5-322.1. Again, since neither Jones Lang nor 222 Broadway were parties or beneficiaries of the Subcontract they are not entitled to indemnification. GOL § 5-322.1 has nothing whatsoever to do with Jones Lang or 222 Broadway. There is no basis upon which Jones Lang or 222 Broadway are entitled to contractual indemnification in this action which did not arise out of daily maintenance, but rather the lighting upgrade work pursuant to the Subcontract with Lime. See Persaud v Bovis Lend Lease. Inc., 93 A.D.3d 831 (2d Dept. 2012); Brown v. Two Exchange Plaza Partners, 146 A.D.2d 129 supra at 135. 26 POINTV JONES LANG AND 222 BROADWAY WERE NOT THIRD PARTY BENEFICIARIES OF THE LIME ENERGY-KNIGHT ELECTRICAL SUBCONTRACT Finally, counsel for Jones Lang and 222 Broadway argue they are third party beneficiaries of the Lime Energy-Knight Electrical Subcontract. There is simply no evidence either Jones Lang or 222 Broadway were intended third party beneficiaries of the Subcontract. Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., 76 N.Y.2d 220 (1990); Belmer v HHM Assoc .. Inc., 101 A.D.3d 526 (1 51 Dept. 2012). The case law relied upon is inapposite. Goodman-Marks Associates v. Westbury Post Associates. 70 A.D. 2d 145 (2d Dept. 1979) predates a significant body of law pertaining to the rights of a third party beneficiary, and the three recognized exceptions to the general rule that an independent contractor is not liable to a third party. In Goodman-Marks Associates, the Second Department held that when performance is to be rendered directly to a third party, they are an intended beneficiary. Here, the intended beneficiary named in the Subcontract between Lime Energy and Knight Electrical was Bank of America, defined in the Subcontract as "Customer". (R 978) Bank of America is not a party to this action. In the four corners of the Subcontract between Knight and Lime Energy, there is no mention of Jones 27 Lang or 222 Broadway; nor is there evidentiary proof they were intended to be benefitted by the Subcontract. As a matter of law, Knight Electrical, an independent contractor, may not be held liable to a party who is not an intended beneficiary of the contract in the absence of a recognized exception to the general rule. Although these exceptions were not raised by counsel, there is no evidence any are applicable. Knight did not "launched a force of harm," induce "detrimental reliance," or take over Defendants' responsibilities, as in the security guard cases. The three exceptions are clearly inapplicable to these facts. See H.R. Moch Co. V. Rensselaer Water Co., 247 N.Y. 160 (1928); Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579 (1994); Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136 ( 2002); Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., 76 N.Y.2d 220 (1990); Kaehler-Hendrix v. Johnson Controls, Inc., 58 A.D.3d 604 (2d Dept. 2009); Lebron v. Loco Noche, LLC, 82 A.D.3d 669 (1st Dept. 2011); Aiello v Burns lntl. Sec. Servs. Corp., 110 A.D.3d 234 (1st Dept. 2013). As the Court held in All Am. Moving & Stor., Inc. v. Andrews, 96 A.D.3d 674 (1st Dept. 2012): the intention which controls in determining whether a stranger to a contract qualifies as an intended third-party beneficiary is that of the promisee", and the benefit to plaintiffs was "sufficiently immediate, 28 rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate [the non-contracting parties] if the benefit is lost" (citation omitted) See Ramirez v. Genovese, 117 A.D.3d 930 (2d Dept. 2014). As recently stated by the Second Department: A contractual obligation, standing alone, generally will not give rise to tort liability in favor of a third party (citations omitted). Before an injured party may recover as a third-party beneficiary * * * it must clearly appear from the provisions of the contract that the parties thereto intended to confer a direct benefit on the alleged third-party beneficiary * * * Id at 931; see Walton v Mercy Coli., 93 A.D.3d 460 (151 Dept. 2012). There is simply no proof Jones Lang or 222 Broadway were intended to be benefitted by the Subcontract and, accordingly, Defendants' claim is wholly without merit. 29 CONCLUSION For the reasons herein stated, and as set forth in Knight Electrical's original brief in support of its cross-appeal, the lower court's dismissal of Plaintiff's Labor Law§ 240(1) and§ 241(6) causes of action should be affirmed. In the event this Court reinstates Plaintiff's action, we respectfully ask that the lower court's decision and order stating Knight Electrical owes contractual indemnification be reversed. Dated: March 30, 2015 Port Chester, New York Respectfully Submitted, O'c;?OR EDD LLP By: ~ £t;1 AmyL. Fenno, Esq. Attorney for Third-Party Defendant-Respondent Cross Appellant KNIGHT ELECTRICAL SERVICES CORP. P.O. Box 1000 242 King Street Port Chester, New York 10573 (914) 686-1700 afenno@oconnorlawfirm.com 30 APPELLATE DIVISION- FIRST DEPARTMENT PRINTING SPECIFICATIONS STATEMENT I, AmyL. Fenno, Esq. attorney for Third-Party Defendant-Respondent -Cross Appellant, KNIGHT ELECTRICAL SERVICES CORP., do hereby certify pursuant to the rules of the Appellate Division (22 NYCRR § 600.10) as follows: • The within brief was generated on a computer using WordPerfect; • A proportionally spaced typeface was used- Times New Roman; • The point size is 14 point; • The margins are one (1) inch on all sides; • The line spacing is double space; and • The word count is 6,550 . Dated: March 30, 2015 Port Chester, New York Respectfully Submitted, 31