New York State Court of Claims

New York State Court of Claims
DIPALMA v. STATE OF NEW YORK, # 2010-037-510, Claim No. 111910, Motion No. M-77534


Case information

UID: 2010-037-510
Claimant short name: DIPALMA
Footnote (claimant name) : Claimant is identified in the filed claim as Jeff DiPalma. He testified at trial that his birth name is Jeffrey DiPalma and the caption has been amended accordingly.
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 111910
Motion number(s): M-77534
Cross-motion number(s):
Claimant's attorney: Cantor, Lukasik, Dolce & Panepinto, P.C.
By: Marc C. Panepinto, Esq. and
Sean Cooney, Esq.
Defendant's attorney: Hon. Andrew M. Cuomo
New York State Attorney General
By: Rupp, Baase, Pfalzgraf, Cunningham & Coppola, LLC
R. Anthony Rupp III, Esq.
Third-party defendant's attorney:
Signature date: October 21, 2010
City: Buffalo
Official citation: 90 AD3d 1659 (2011)
Appellate results: Affirmed
See also (multicaptioned case)


Claimant seeks damages for personal injuries sustained on November 1, 2005 at a construction site on premises owned by Defendant, commonly known as the Scajaquada Expressway (New York State Route 198) in the City of Buffalo, Erie County, New York. The trial of this claim was bifurcated and this Decision relates solely to the issue of liability.

Pursuant to Contract No. D259737 dated December 6, 2004 between The L.C. Whitford Company, Inc. (Whitford)(2) and the New York State Department of Transportation (NYSDOT), Whitford agreed to rehabilitate seven bridges along Route 198. At the time of the accident Claimant and a fellow laborer, Joseph Feidt (Feidt), were shoveling concrete debris into a skid box or hopper that was resting on the tines of a rough-terrain forklift operated by Neil Boccio (Boccio), another Whitford employee. Claimant alleges that the injuries occurred when the skid box containing the concrete debris slid forward on the tines of the forklift and struck him in the back. It is undisputed that the skid box was not secured to the tines of the forklift with a chain or other safety device. Claimant maintains that Defendant, as owner of the work site, was negligent in failing to provide him with a safe place to work in violation of 200, 240 (1) and 241 (6) of the Labor Law and common-law negligence.

According to the testimony of Claimant and Feidt, at the time of the accident they were working on a wooden platform that had been constructed specially for this project which extended from the bank of Scajaquada Creek over the creek and around a concrete pier supporting one of the bridges. They were shoveling concrete debris that had been chipped off the pier into the skid box which had been lowered to their location on the boom of the forklift. After the skid box was filled with debris, Boccio would raise the box to the level of the machine and dump the debris at another location on the job site. The skid box was outfitted with slots for the tines of the forklift to slide into so it could be moved, but it was not otherwise secured to the forklift. During this process, Boccio remained seated in the cab of the forklift, which was running and positioned on a level area above the work area. At the time of the accident, Boccio had lowered the skid box to a position chosen by Claimant and Feidt which Boccio thought was either on the ground or the platform. Claimant was injured after, having deposited a shovel load of debris into the skid box, he turned to shovel more debris and the box slid down the tines of the forklift striking him in the back.

Claimant testified at a pre-trial deposition that the skid box was situated at waist level and he testified at trial that it was at shoulder level at the time of the accident. There was also conflicting testimony from the witnesses regarding whether the skid box was on the ground, on the platform or suspended one or two feet above the ground or platform and whether the box slid partially or completely off the tines of the forklift. Under any version of the facts, however, it is clear there was little or no height differential between Claimant and the skid box.

Claimant submits that while he was engaged in an enumerated activity under Labor Law 240 (1), the skid box, laden with debris, fell while being hoisted in the absence or inadequacy of a safety device resulting in his injuries. Claimant argues that he is entitled to the absolute liability provision under the statute as the falling object occurred as a result of the failure to use necessary and adequate hoisting or security devices (Narducci v Manhasset Bay Assoc., 96 NY2d 259 [2001]). Claimant further argues that Defendant's violation of Industrial Code regulations also provides a basis for a claim under Labor Law 241 (6). He further avers that Defendant had actual and constructive notice of the dangerous condition on the work site, specifically the use of a rough-terrain forklift with an unsecured skid box to remove concrete debris from the creek bed, making it liable under Labor Law 200 and common-law negligence.

The Defendant, in opposition, essentially argues that the accident is not an elevation-related risk subject to the safeguards prescribed by Labor Law 240 (1), and the accident did not result from a "falling object", one of the two types of scenarios that 240 (1) was enacted to address, the other being a "falling worker." Defendant submits that at the time of the accident, Claimant was standing on the same level as the skid box when it slid forward, striking his back. It further argues that there was no violation of a specific provision of the Industrial Code which would support a Labor Law 241 (6) claim and it did not supervise or control Claimant's work and, therefore, Labor Law 200 does not apply.

Labor Law 240 (1)

Labor Law 240 (1), commonly known as the "scaffold" law, imposes non-delegable, strict liability upon property owners and general contractors for certain types of elevation-related injuries that occur during construction (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500 [1993]; Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]). Specifically, the statute provides in pertinent part:

"All contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."

Violation of Labor Law 240 (1) mandates the imposition of liability regardless of negligence and is deemed to create a statutory cause of action unrelated to questions of negligence. "Labor Law 240 (1) imposes absolute liability on owners, contractors and agents for their failure to provide workers with safety devices that properly protect against elevation-related special hazards" (Striegel v Hillcrest Hgts. Dev. Corp., 100 NY2d 974 [2003]). "The statute is to be interpreted liberally to accomplish its purpose" (id., citing Rocovich v Consolidated Edison Co., supra). Labor Law 240 (1) applies to both "falling worker" and "falling object" cases (id.).

Section 240 (1) protects against two categories of elevation-related risks. It covers risks due to the "elevation . . . at which materials or loads must be positioned or secured" and the difference between the level where the worker is positioned and the higher level of the materials or load being secured, as well as risks due to the elevation at which the task must be performed and the difference between the level of the required work and a lower level (Toefer v Long Is. R.R., 4 NY3d 399, 407 [2005]). However, "[n]ot every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law 240 (1). Rather, liability is contingent upon the existence of a hazard contemplated in section 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein" (Narducci v Manhasset Bay Assoc., supra at 267; see Nieves v Five Boro A.C. & Refrig. Corp., 93 NY2d 914, 916 [1999]).

To establish liability under Labor Law 240 (1), the injured worker must demonstrate (1) a violation of the statute, and (2) that such violation was the proximate cause of his or her injuries (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287-289 [2003]). The statute can be violated either when no protective device is provided, or when the device fails to furnish proper protection. Once the two elements are proven, the defendants are subject to absolute liability even if they did not supervise or exercise control over the construction site (see Ross v Curtis-Palmer Hydro-Elec. Co., supra at 500), and comparative negligence may not be asserted as a defense.

While the Court of Appeals decision in Narducci v Manhasset Bay Assoc., supra, appeared to limit a claimant's ability to bring a 240 (1) "falling object" claim exclusively to situations where the object was in the process of being hoisted or secured, that Court held in later cases that it also encompasses materials or loads positioned at an elevation and being lowered from an elevation, which, in either situation, may require securing to prevent them from falling (Quattrocchi v F.J. Sciame Constr. Corp., 11 NY3d 757, 758-759 [2008]; Outar v City of New York, 5 NY3d 731, 732 [2005]; Toefer v Long Is. R.R., supra at 408). In Runner v New York Stock Exch., Inc., 13 NY3d 599 [2009]) the Court clarified that the dispositive inquiry does not depend upon whether the injury resulted from a "falling worker" or "falling object." Rather, the governing rule is that "Labor Law 240 (1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person" (id. at 604, quoting Ross v Curtis-Palmer Hydro-Elec. Co., supra at 501 [emphasis in original]). Moreover, in a falling-object case, the applicability of the statute does not "depend upon whether the object has hit the worker. The relevant inquiry-one which may be answered in the affirmative even in situations where the object does not fall on the worker-is rather whether the harm flows directly from the application of the force of gravity to the object" (id. at 604).

Here, the gravity-related risk is a skid box resting on the tines of a forklift which was lowered to the work site, and the issue is whether the skid box constituted a hazard and should have been secured. The forklift operator and both experts testified at trial that the skid box, which weighed approximately three hundred pounds, should have been secured to the tines of the forklift during the debris removal operation to prevent the box from sliding on the tines and striking Claimant. The evidence establishes that, as a direct consequence of the application of the force of gravity, Claimant was injured when the box slid forward and struck him. The Court concludes that the skid box "fell . . ., because of the absence or inadequacy of a safety device of the kind enumerated in [section 240 (1)]" (Narducci v Manhasset Bay Assoc., supra at 268; Potter v Jay E. Potter Lbr. Co., Inc., 71 AD3d 1565, 1567 [2010]). Therefore, Claimant has demonstrated that Defendants failed to provide an adequate safety device and that his injury resulted from the lack of such a safety device (Berg v Albany Ladder Co., Inc., 10 NY3d 902, 904 [2008]).

Labor Law 241 (6)

Labor Law 241 (6) provides:

"All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith."

Section 241 (6) imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to all persons employed in areas in which construction, excavation, or demolition work is being performed even if they exercised no supervision or control over the work site and had no notice of work-site conditions (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 347 [1998]; Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 878 [1993]). It is well settled that in order to prevail under this section of the Labor Law, a claimant must allege and prove that the owner or contractor violated a rule or regulation of the Commissioner of the Department of Labor which sets forth a specific standard of conduct, as opposed to a general reiteration of the common law (Ross v Curtis-Palmer Hydro-Elec. Co., supra at 502, 504-505). The violation of a specific standard of conduct, once proven, does not establish negligence as a matter of law, but rather is some evidence of negligence to be considered with other relevant proof (see Szafranski v Niagara Frontier Transp. Auth., 5 AD3d 1111, 1113 [2004]; Schmeer v County of Monroe, 175 AD2d 633, 634 [1991]).

At trial both parties relied upon the testimony of their experts, Ernest J. Gailor (Gailor) for Claimant and John P. Coniglio (Coniglio) for Defendant, to establish or refute liability under this section. Claimant relies upon alleged violations of Industrial Code 12 NYCRR 23-2.1(a), 23-2.1(b), 23-3.3(c)(k)(1)(ii), 23-9.2(g), and 23-9.8(c) and (e). Defendant argues that the various Code violations raised by Claimant cannot form the basis for liability in this matter.

Section 23-2.1, entitled "Maintenance and Housekeeping," provides:

(a) Storage of material or equipment.

(1) All building materials shall be stored in a safe and orderly manner. Material piles shall be stable under all conditions and so located that they

do not obstruct any passageway, walkway, stairway or other thoroughfare.

(2) Material and equipment shall not be stored upon any floor, platform

or scaffold in such quantity or of such weight as to exceed the safe carrying capacity of such floor, platform or scaffold. Material and equipment shall not be placed or stored so close to any edge of a floor, platform or scaffold as to endanger any person beneath such edge.

(b) Disposal of debris. Debris shall be handled and disposed of by methods that will not endanger any person employed in the area of such disposal or any person

lawfully frequenting such area.

Although violations of 23-2.1 (a)(1) and (2) have been found by the Appellate Division, Fourth Department to be sufficient predicates to support Labor Law 241 (6) causes of action (see Flihan v Cornell Univ., 280 AD2d 994 [2001]; Cafarella v Harrison Radiator Div. Of Gen. Motors, 237 AD2d 936 [1997]; White v Farash Corp., 224 AD2d 978 [1996]), the experts here are in agreement that those regulations do not apply in the circumstances of this claim because the platform where Claimant was working does not constitute a passageway, walkway, stairway or other thoroughfare and the accident did not result from the storage of material or equipment. The experts also agree that the work performed by Claimant resulted in the accumulation of debris, not construction or building material, and the debris was not being stored but was placed into the skid box for disposal at another location on the construction site.

The experts were not in agreement, however, with respect to the application of 23-2.1(b) to this accident. Gailor opined that the regulation was violated by the use of a skid box for debris removal when there were no safety devices available to control the movement of the box during hoisting and carrying, although he admitted that the regulation does not prohibit the use of a rough- terrain forklift or a skid box for debris disposal. Coniglio, on the other hand, stated that there was no violation of the regulation because the method used to remove debris on the day of the accident was appropriate and one that he would use himself. Claimant urges the Court to find that the use of a skid box without safety devices for debris removal constitutes negligence which was the proximate cause of Claimant's injuries. Defendant argues that this section does not apply to the facts here because Claimant was not injured by debris but by the method of removing the debris which was determined by Boccio, his fellow employee.

The Fourth Department has found that 23-2.1(b) is sufficiently specific to support a Labor Law 241 (6) claim (see Arenas v Bon-Ton Dept. Stores, Inc., 35 AD3d 1205, 1206 [2006]; Scally v Regional Indus. Partnership, 9 AD3d 865, 868 [2004]; Donnelly v City of Niagara Falls, 5 AD3d 1103, 1104 [2004]) and Claimant's proof shows that at the time of the accident he was engaged in the disposal of debris which resulted from construction work performed in the repair and maintenance of a bridge pier. Therefore, the failure by Defendant to take the safety measures required by this statute to secure the skid box during debris removal, proximately causing Claimant's injury, imposes liability on Defendant (Rizzuto v L.A. Wenger Contr. Co., supra at 349-350; Ross v Curtis-Palmer Hydro-Elec. Co., supra at 502). It is noteworthy that Defendant did not attempt to show that Claimant's own conduct in any way contributed to his accident (see Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39-40 [2004]; Blake v Neighborhood Hous. Servs. of N.Y. City, supra at 290) or that Claimant was a recalcitrant worker who had refused to use available safety devices despite Defendant's specific instructions on their use (see Cahill v Triborough Bridge & Tunnel Auth., supra at 39-40; Akins v Central N.Y. Regional Mkt. Auth., 275 AD2d 911 [2000]). Thus, the evidence established that it was not Claimant's failure to use available safety protection which caused his injury; rather the cause of Claimant's accident was Defendant's failure to provide appropriate safety protection.

Section 23-3.3 covers demolition by hand and at trial Claimant relied upon 23-3.3 (c), (e), and (k)(1)(ii) to support his cause of action under 241 (6). The Fourth Department has held that Industrial Code regulation 23-3.3 is sufficiently specific to form the predicate for a 241 (6) cause of action (Terry v Mutual Life Ins. Co. of N.Y., 265 AD2d 929 [1999]). However, the Court finds that regulation 23-3.3 is not applicable to the facts in this claim because by its very terms the regulation is restricted to demolition work, and the work being performed on the bridge pier did not amount to demolition work within the purview of the regulation. According to the Industrial Code, demolition work is defined as work "incidental to or associated with the total or partial dismantling or razing of a building or other structure including the removing or dismantling of machinery or other equipment" (12 NYCRR 23-1.4[b][16]). That definition anticipates more than just the "painting, plastering or removal and installation of [for example] sheetrock;" rather, it envisions "some structural change of the building, in whole or in part, i.e., some interference with, alteration or change in the structural integrity of the building, sufficient to constitute a dismantling or razing of the building, either in whole or in part" (Zuniga v Stam Realty, 169 Misc 2d 1004, 1010 [1996], affd 245 AD2d 561 [1997], lv denied 91 NY2d 813 [1998]). Here, Claimant's employer was hired by Defendant to rehabilitate seven bridges which included performing remedial concrete repairs to the exterior of the bridge piers. On this record, Claimant has not established that the accident resulted from the conduct of hand demolition operations or work within the contemplated scope of the statute and the Industrial Code provisions. In fact, according every favorable inference to Claimant's proof, the evidence at trial established the contrary, that there was no demolition work or operation being performed by Claimant at the time of the accident. Since the project work did not call for the dismantling or razing of a building or structure (pier), in whole or in part, the work being performed did not fall within the purview of demolition work and accordingly, Industrial Code 23-3.3 is inapplicable (see Georgopulos v Gertz Plaza, Inc., 13 AD3d 478, 479 [2004]).

Section 23-9.2 sets forth general requirements for maintenance and operation of power-operated equipment and 23-9.2(g), entitled "Equipment at rest," provides:

The operators of material handling equipment shall not leave such equipment while loads, buckets or blades are suspended. Any such load, bucket or blade shall be brought to rest on blocks, shall be lowered to the ground, grade or equivalent surface or shall be brought to the lowest end of travel of the equipment.

While it has been held that this section of the Industrial Code is sufficiently specific to serve as a predicate for an action brought pursuant to Labor Law 241 (6) (see Padilla v Frances Schervier Hous. Dev. Fund Corp., 303 AD2d 194 [2003]), the Court finds on this record that Claimant failed to establish that this section was in fact violated. The terms of this regulation require that the operator not leave the equipment while the load is suspended and, before leaving, the load shall be lowered to the ground or to the lowest end of travel of the equipment. Boccio testified that he was operating the forklift at the time of the accident and had lowered the skid box to the lowest extent of the boom. While there is conflicting testimony regarding the exact position of the skid box at the time of the accident, it is clear that Boccio remained at the controls while the load was being handled. Accordingly, Industrial Code regulation 23-9.2(g) is inapplicable.

Regulation 23-9.8 covers "Lift and Fork Trucks" and the subsections relied upon by Claimant provide:

(c) Brakes and load-elevating mechanisms. Every power-operated fork

and lift truck shall be provided with a lockable brake. The load-elevating

mechanism shall be capable of being locked at any elevation.

(e) Operating surfaces. No lift or fork truck shall be used on any surface

that is so uneven as to make upsetting likely.

Although there is no precedent to establish that 23-9.8(c) is specific enough to support a Labor Law 241(6) cause of action, the Court is persuaded by the testimony of Boccio, Gailor and Coniglio that this regulation does not apply to the facts in this Claim. Boccio testified that the boom on the forklift was lowered to the lowest point possible and the load-elevating mechanism would have been locked in that position at the time of the accident. Based upon that fact, both experts agree that a locking mechanism, or lack thereof, did not play any role in the accident.

Section 23-9.8(e) requires that a lift or fork truck not be used on an uneven surface as to make upsetting the machine likely. While Claimant argues that the Fourth Department has found this regulation specific enough to support a Labor Law 241(6) cause of action (Fisher v WNY Bus Parts, Inc., 12 AD3d 1138, 1140 [2004]), this Court finds that Claimant failed to establish that this subsection was in fact violated. Gailor testified that "upsetting" would be anything that made the machine tilt or tip outside the control of the operator. Boccio testified that the machine was sitting on relatively level ground and did not upset outside of his control. Thus, there is no proof on this record that the surface on which the machine was situated at the time in any way contributed to Claimant's accident and, accordingly, regulation 23-9.8(e) is inapplicable.

Finally, during the cross-examination of Coniglio, Claimant's counsel marked for identification a Coniglio affidavit from a prior and unrelated case (Claimant's Trial Exhibit 40; Trial Transcript for September 21, 2009, p.2).In spite of the fact that this affidavit was never moved into evidence, Claimant's counsel attached a copy of it to Claimant's post-trial memorandum of law as Exhibit A. Defendant subsequently brought motion no. M-77534 to strike Coniglio's prior affidavit from Claimant's post-trial memorandum of law. It is well settled that an out-of-court inconsistent statement of a witness may be introduced into evidence, not to establish the truth of such statement but to discredit the witness (see CPLR 4514; Larkin v Nassau Elec. R. R. Co., 205 NY 267 [1912]; Lind v City of New York, 270 AD2d 315 [2000]).

It is undisputed that Coniglio's prior affidavit was never moved into evidence during the course of trial. At the conclusion of trial, the Court gave counsel the opportunity to review their records specifically to determine if all the exhibits either party wished the Court to consider had been moved into evidence. After a break, Claimant's counsel moved several exhibits into evidence. Once again, Coniglio's prior affidavit was not moved into evidence and following the trial it was removed from the courtroom with the other exhibits marked solely for identification, but not moved into evidence. By attaching a copy of Coniglio's prior affidavit as an exhibit to Claimant's post-trial memorandum, Claimant's counsel is attempting to add the prior affidavit to the record after evidence has been closed. This the court will not sanction. In fact, in rendering this decision, the Court has not read or considered Coniglio's affidavit given in a prior and unrelated case. Accordingly, Defendant's motion no. M-77534 is granted and Coniglio's prior affidavit is hereby stricken from Claimant's post-trial memorandum.(3) All references to Coniglio's prior affidavit as contained in the transcript of the trial testimony of Coniglio shall, however, remain. (4)

Labor Law 200

"Section 200 of the Labor Law is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work" (Comes v New York State Elec. & Gas Corp., supra at 877; see Rizzuto v L.A. Wenger Contr. Co., supra at 352). "An implicit precondition to this duty to provide a safe place to work is that the party charged with that responsibility have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition" (Russin v Louis N. Picciano & Son, 54 NY2d 311, 317 [1981]). Thus, "[w]here the alleged defect or dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under Labor Law 200" (Comes v New York State Elec. & Gas Corp., supra at 877).

Here, the evidence established that the dangerous condition resulted from the contractor's method of loading construction debris and Defendant did not supervise or control that work (id.). Although Defendant exercised general supervisory control over the project and had the authority to correct unsafe practices, there is no evidence that Defendant actually supervised Claimant's actions on the day of the accident (id.; Kazmierczak v Town of Clarence, 286 AD2d 955, 956 [2001]). That Defendant may have had general supervisory powers to coordinate the progress of the work and correct any unsafe conditions that came to its attention is insufficient to establish its liability. Thus, 200 applies only to owners and contractors who actually exercise control or supervision over work and have actual or constructive notice of the unsafe condition (see Lombardi v Stout, 80 NY2d 290 [1992]; Singh v Black Diamonds LLC, 24 AD3d 138 [2005];Reilly v Newireen Assoc., 303 AD2d 214 [2003], lv denied 100 NY2d 508 [2003]). Accordingly, Defendant is not liable for violating Labor Law 200 or for ordinary negligence.

Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that the credible evidence established that Claimant was injured when struck in the back by a skid box which slid forward on the tines of a rough-terrain forklift due to the lack of a safety device to secure the box. The Court also finds that the proximate cause of Claimant's injury was Defendant's failure to provide a safety device to prevent the skid box from moving forward on the tines as mandated by Labor Law 240 (1) and to protect Claimant during the debris removal process as mandated by Industrial Code 12 NYCRR 23-2.1(b) and Labor Law 241 (6).

In sum, the Court finds Defendant to be 100 percent liable for Claimant's injury due to its failure to provide adequate and appropriate safety protection (Labor Law 240[1] and 241 [6]). A trial on the issue of damages will be scheduled as soon as practicable.


October 21, 2010

Buffalo, New York


Judge of the Court of Claims

2. Claimant's employer is misidentified in the claim as J.T. Whitford.

3. Counsel are reminded that should either party subsequently decide to appeal this decision and order post-trial memoranda are not part of the record on appeal.

4. The following were read and considered with respect to Defendant's motion no. M-77534: Notice of motion and affidavit of R. Anthony Rupp III, Esq., sworn to November 30, 2009, with annexed Exhibits A-B; opposing affirmation of Marc C. Panepinto, Esq., dated January 5, 2010, with annexed Exhibit A; and reply affidavit of Kevin J. Kruppa, Esq., sworn to January 12, 2010.