Opinion
99 Civ. 10827 (LAP).
January 31, 2002
MEMORANDUM AND ORDER
Plaintiff, Charter Oak Fire Insurance Company ("Charter Oak"), as subrogee of ARS Mechanical Inc. ("ARS"), brings this action against defendant Trio Realty Company ("Trio") in connection with a loss sustained by ARS after an explosion caused $457,083.17 in damage to ARS's leased premises. Defendant moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, and plaintiff opposes the motion. For the reasons that follow, defendant's motion is granted.
The following submissions have been considered in resolving this motion: Complaint ("Compl."); Defendant's Notice of Motion ("Deft's Notice of Motion"); Affirmation of Daniel J. Friedman in Support of the Motion dated January 12, 2001 ("Friedman Aff."); Defendant's Memorandum of Law in Support of Its Motion for Summary Judgment ("Deft's Mem."); Defendant's 56.1 Statement ("Deft's 56.1 Stmt."); Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment ("Pltff's Mem."); Plaintiff's Counter-Statement of Facts Pursuant to Local Rule 56.1 ("Pltff's 56.1 Stmt."), the Affidavit of James M. Ruel, sworn to on February 5, 2002; Defendant's Reply Memorandum of Law ("Deft's Reply"); Reply Affirmation of Daniel J. Friedman dated February 16, 2001 ("Friedman Reply Aff.").
I. Background
On December 30, 1996, ARS, an automobile repair business, entered into a lease with Trio, the landlord, for property located at 1101 Webster Avenue, Bronx, New York. (Friedman Aff. ¶ 6; Ex. 4). Before entering into the lease with Trio, ARS purchased the business of the previous tenant, Garcia General Mechanic ("Garcia"), and ARS's tenancy commenced immediately after Garcia's tenancy. (Id., Ex. 5 ("Sanchez dep.") at pp. 12, 16). Trio retained a right of re-entry, although at no time during ARS's tenancy, or the period immediately before, did Trio inspect the premises. (Trio Statement Pursuant to Rule 56.1(a) of the Local Rules ("Trio 56.1 Stmt.") ¶ 3).
On August 16, 1998, a fire occurred while employees of ARS were performing repair work on an automobile fuel pump. Plaintiff alleged that the fire started when gas spilled onto the garage floor while being removed from a gasoline tank and was ignited by a flame from a gas-fired water heater. (Complaint, ¶ 13). The water heater was not separated from the garage repair area by a fire resistant wall. (Charter Oak Counter-Statement of Facts Pursuant to Local Rule 56.1 ("Charter Oak 56.1 Stmt.") p. 1). At the time, ARS received $457,083.17 from its insurer, Charter Oak, for its losses. (Id. at 3). Charter Oak now seeks to recover from Trio asserting claims of negligence and gross negligence.
Trio notes that while the complaint alleges that ARS was repairing a gasoline tank at the time of the fire, the ARS depositions establish that its employees were changing an automobile fuel pump at the time of the fire. (Friedman Reply Aff., Ex. 1, p. 28, Ex. 2, p. 11).
Charter Oak's Rule 56.1 Counter-Statement was included within its memorandum of law. Because the Rule 56.1 Counter-Statement, Affidavit in Support (actually opposition) and Memorandum of Law in Opposition were filed as a single, bundled document with the Memorandum of Law cover, only the Memorandum of Law appears on the docket sheet. The other documents were not docketed separately. Because of the confusion caused by such bundling, that practice is discouraged. Separate documents should be bound and docketed separately.
The water heater was installed prior to ARS' occupancy (Sanchez dep. at 18); Trio did not install it (Trio 56.1 Stmt. ¶ 5) and does not know who did, (see Friedman Aff., Ex. 6 ("Schur Aff.") at 23). Trio denies knowledge of the water heater's existence. (Trio 56.1 Stmt. ¶ 9).
The relevant terms of the lease are as follows:
53. Tenant ARS hereby waives any claim against the Landlord as an additional insured under such policies. Tenant hereby waives any claim against the Landlord by reason of the Landlord's negligence or other acts or omissions or other occurrences insofar as such claim is based on a risk insured under any policy carried by the Tenant, or with respect to such act or occurrence that does not arise as the result of the wilful negligence or malfeasance or nonfeasance of the Landlord. Tenant shall annually provide the landlord with a certificate of insurance and proof of payment for the same.
54. Tenant ARS shall indemnify and save harmless landlord and its agents against and from a) any and all claims i) arising from 1) the conduct of business in or management other than by landlord or its agents or employees of the demised premises or 2) any work or thing whatsoever done or any condition created (other than the landlord or its employees) in or about the demises premises during the term of the lease . . . Or ii) arising from any negligence or otherwise wrongful act or omission of the tenant or any of its subtenants or licensees or its or their employees, agents or contractors . . . .
63. The Tenant has thoroughly examined the Demised Premises and is fully familiar with the condition thereof. Tenant agrees to accept the said premises "as is" and in such condition as the same may be at the date of commencement of the term of this Lease, and Landlord shall not be obligated or required to do any work or to make any alterations or install any fixtures, equipment or improvements, or make any repairs or replacements to or on the Demised Premises or any portion of the Building in which the same is situated in order to fit the same for Tenant's use . . . .
76. (iii) Tenant agrees to install, maintain, replace, at its own cost and expense, all utility lines — including but not limited to hot and cold water — and to install, maintain and replace from such utility lines, at its own cost and expense, all such necessary pipes, conduits, outlets, etc., in and related to the Demised Premises. Tenant shall also maintain, at its own expense, its own hot water heating equipment. . . .
(iv) All gas and water required in and for the Demised Premises shall be furnished by the Tenant at its own cost and expense. Further, Tenant shall, at its own cost and expense, install and properly maintain all necessary and/or required meters so that the charges for the same can be properly determined.
77. Landlord shall have no obligation to provide Tenant with heat or hot water. . . .
(Friedman Aff., Ex. 4 ("Lease")) (emphasis added).
On June 8, 2000, I denied defendant's motion to dismiss finding that:
for the purposes of the claim for breach of the lease agreement to procure insurance, however, Charter Oak does not stand in ARS's shoes. That claim against ARS is not within Charter Oaks' coverage. Accordingly, that claim is not within the prohibition of an insurer's suing its own insured.
(Transcript of June 8, 2000 argument (docket no. 22), attached to Pltff's Mem. as Ex. 2, p. 30).
Relying on paragraph 53 and 54 of the lease, defendant had also argued that plaintiff waived its right of subrogation by the terms of the lease between ARS and Trio. I ruled that:
[a]s to Paragraph 53, it does not waive any claim made by the tenant against the landlord due to the landlord's willful negligence[,] and plaintiff in this action alleges that the landlord was willfully negligent.As to Paragraph 54, there is a material issue of fact as to the cause of the damage. Accordingly, whether the defendant is indemnified for the damage is also at issue; and, thus, the defendant's motion on this basis is denied."
(Id. at 31).
Trio now moves for summary judgment.
II. Discussion
A. Summary Judgment Standard
Under Rule 56(c), summary judgment shall be rendered forthwith if the pleadings, depositions, answers, interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. § 56(c); see Anderson v. Liberty Lobby, 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). An issue of fact is genuine when "a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. "At the summary judgment stage, there is no issue unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party." Id. at 243.
The moving party has the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact."Celotex Corp. v. Catrett, 477 U.S. 317, 323, 10 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The substantive law determines the facts which are material to the outcome of a particular litigation. Anderson, 477 U.S. at 250; Heyman v. Commerce Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986) (citing U.S. v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962)).
If the moving party meets its burden, the burden then shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The non-moving party must "do more than simply show there is some metaphysical doubt as to the material facts." Matsushita, 45 U.S. at 586. Only when it is apparent, however, that no rational finder of fact "could find in favor of the non-moving party because the evidence to support its case is so slight" should summary judgment be granted. Gallo v. Prudential Residential Services, Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994).
B. First Cause of Action: Negligence
Plaintiff's first cause of action is for negligence. Trio argues that, pursuant to the terms of the lease between ARS and Trio, Charter Oak, as subrogee of ARS, cannot bring a claim against Trio for ordinary negligence. Citing to paragraph 53 of the lease, Trio argues that ARS waived any claim against Trio as an additional insured and "waive[d] any claim against the Landlord by reason of the Landlord's negligence." (Friedman Aff., Ex. 4, ¶ 53). Charter Oak argues that this portion of the lease is unenforceable because it is void under New York's General Obligation Law ("GOL") § 5-321 which deems null and void provisions in leases that purport to absolve a lessor from its own negligence. (Pltff's Mem. at 6-7). GOL § 5-321 provides:
Every covenant, agreement or understanding in connection with or collateral to any lease of real property exempting the lessor from liability for damages for injuries to person or property caused by or resulting from the negligence of the lessor, his agents, servants or employees, in the operation or maintenance of the demised premises or the real property containing the demised premises shall be deemed to be void as against public policy and wholly unenforceable.
N.Y. Gen. Oblig. L. § 5-321.
Plaintiff's reliance on the GOL is misplaced because it does not apply to the extent that a tenant's loss is covered by insurance. In Hogeland v. Sibley, Lindsay Curr Co., 42 N.Y.2d 153, 397 N.Y.S.2d 602 (1977), the lease required the lessee to obtain liability and property insurance naming the lessor as an additional insured and to hold the lessor harmless from any claim arising out of the lessee's negligence. ( 42 N.Y.2d 156-157, 397 N.Y.S.2d at 604-605). The Hogeland lease, similar to paragraphs 53 and 54 of the lease at issue, provided:
[T]he Landlord shall not be responsible for such portion of such loss or damage which is recovered or recoverable by the Tenant from insurance covering such loss or damage or for such portion of such loss or damage against which the tenant is indemnified or insured.Hogeland, 42 N.Y.2d at 157, 397 N.Y.S.2d at 602. The court held for the lessor-defendant noting:
[The lessor] is not exempting itself from liability to the victim for its own negligence. Rather, the parties are allocating the risk of liability to third parties between themselves, essentially through the employment of insurance. Courts do not, as a general matter, look unfavorably upon agreements which, by requiring parties to carry insurance, afford protection to the public.Hogeland, 42 N.Y.2d at 161, 397 N.Y.S.2d at 607; see also Santamaria v. 1125 Park Avenue Corp., 238 A.D.2d 259, 260, 657 N.Y.S.2d 20, 22 (1st Dept. 1997) (holding that "indemnification agreements, when coupled with a provision allocating the risk of liability to a third-party through the use of insurance, are valid and enforceable and do not violate General Obligations Law §§ 5-321, 5-322, 5-322.1, 5-323 and 5-325, which invalidate agreements exempting the promisee from liability for damages for injuries resulting from the promisee's own negligence."). Thus, because a lease that reallocates risk to an insurer does not violate GOL 5-321 and because New York courts, as a general matter, look favorably upon agreements that require parties to carry insurance thereby, affording protection to the public, see Hogeland, 42 N.Y.2d at 161, 397 N.Y.S.2d at 607, the lease at issue is not void. Accordingly, defendant's motion for summary judgment is granted as to the first claim.
C. Second Cause of Action: Gross Negligence
Charter Oak's second cause of action asserts a claim for gross negligence. "While waiver clauses in commercial contracts "are enforceable to limit recovery for claims based on ordinary negligence, they will not preclude recovery in tort or breach of contract where the losses are a result of gross negligence." Travelers Indemnity Company of Connecticut v. The Losco Group, Inc., 136 F. Supp.2d 253, 256 (S.D.N.Y. 2001) (citing Gold Connection Discount Jewelers, Inc. v. American District Telegraph Co., Inc., 212 A.D.2d 577, 578, 622 N.Y.S.2d 740, 741 (2d Dep't 1995)). Gross negligence, used interchangeably with willful negligence, differs, "in kind, not only degree, from claims of ordinary negligence. It is conduct that evinces a reckless disregard for the rights of others or `smacks' of intentional wrongdoing." Colnaghi, U.S.A., Inc. v. Jewelers Protection Services, Ltd., 81 N.Y.2d 821, 823-824, 595 N.Y.S.2d 381, 383 (1993). Gross negligence has also been defined as: the degree of neglect arising where there is a reckless
In the lease at issue, the tenant waived any claim not "the result of the wilful negligence or malfeasance or nonfeasance of the Landlord." (Lease ¶ 53).
indifference to the safety of human life or an intentional failure to perform a manifest duty to the public, in the performance of which the public and the party injured have interests.Int'l Mining Corp. v. Aerovias Nacionales de Colombia, S.A., 57 A.D.2d 64, 67, 393 N.Y.S.2d 405, 407 (1st Dep't 1977) (citing 41 N.Y. Jur. Negligence § 28 now 79 N.Y. Jur. Negligence 2d § 39 (1989)). The issue of gross negligence is ordinarily a question of fact for a jury to determine. See Travelers Indemnity Company of Connecticut, 136 F. Supp.2d at 256-257; Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 555, 583 N.Y.S.2d 963-964 (1992); Food Pageant Inc. v. Consolidated Edison Co., Inc., 54 N.Y.2d 167, 173 (1981). "The Court's role on a motion for summary judgment is to determine whether there is a material issue to be tried." Sommer, 79 N.Y.2d at 554-555; Fed.R.Civ.P. 56. "Where different conclusions can be drawn from the evidence the motion should be denied."Id.
In response to inquiry of plaintiff's counsel on oral argument as to the factual and legal basis for plaintiff's contention that the factfinder could find the landlord to have been grossly negligent, counsel relied on, first, the landlord's failure to inspect the premises before turning them over to the tenant and, second, the landlord's constructive notice that the water heater violated various codes if used in a place where open containers of gasoline were present. Counsel also cited several cases: Lee Sharoni, Ltd. v. Honeywell, Ltd., 206 A.D.2d 462 (2d Dept. 1994); Rand Paseka Mfg. Co., Inc. v. Holmes Protection Inc., 130 A.D.2d 429 (1st Dept. 1987); Food Pageant, 54 N.Y.2d 167; Travelers Indemnity Company of Connecticut, 136 F. Supp.2d 253; Prato v. Vigliotta, 253 A.D.2d 749 (2d Dept. 1998).
Section 5.1.10(b) of the National Fuel Gas Code ("NFGC") incorporated by reference in the New York Building Codes §§ 27-800 and 27-826, states:
Repair Garages: Gas utilization equipment installed in repair garages shall be installed in a detached building or room, separated from repair areas by walls or partitions, floors, or floor ceiling assembles that are constructed so as to prohibit the transmission of vapors and having a fire resistance rating of not less than 1hr. and that have no openings in the wall separating the repair area within 8 ft. (2.5m) of the floor. Wall penetration shall be fire stopped. Air for combustion purposes shall be obtained from outside the building. The heating room shall not be used for the storage of combustible materials.
(Pltff's Mem. at 2-3).
Exception Note 2 to § 5.1.10 states:
Heating equipment for vehicle repair areas where there is no dispensing or transferring of Class I or Class II flammable or combustible liquids, or liquified petroleum gas, shall be installed in accordance with Automotive and Marine Service State Code, NFPA 30A.
Nat. Fuel Gas Code § 5.1.10.
NFPA 30A, incorporated by reference in Exception Note 2, states that:
[h]eat producing appliances using gas or oil fuel shall be permitted to be installed in a lubrication or service room where there is no dispensing or transferring of Class I liquids, including the open draining of automotive gasoline tanks. . ."
(Ruel Aff., Ex. 1, § 7.6.4).
In response, Trio noted that the immediately prior tenant also operated an automobile repair garage (Charter Oak Rule 56.1 Stmt. p. 2), apparently without incident, that the lease of ARS, Charter Oaks' subrogor, commenced immediately after the prior repair garage's tenancy (Trio Rule 56.1 Stmt. ¶ 2), that the lease specifically provided that the premises were taken by the tenant "as is," the landlord had no obligation to make alterations, (lease ¶ 63), the Landlord had "no obligation to provide Tenant with heat or hot water" (id. ¶ 77), and the tenant was obligated to "install and maintain, at its own cost and expense, its own hot water heating equipment," (id. ¶ 76(iii)). Defendant also noted that the tenant acknowledged that it had "thoroughly examined the [premises] and is fully familiar with the condition thereof" (id. ¶ 63), and admitted to having re-lit the pilot light of the water heater on more than one occasion (Friedman Reply Aff., Ex. 1, p. 64). Here, I must determine whether there is sufficient evidence which, if believed by the jury, would permit a finding of gross negligence.Sommer, 79 N.Y.2d at 554-555; see, Rand, 515 N.Y.S.2d at 470 (a judge may dismiss a jury verdict "if he concludes that by no rational process could a jury find for the plaintiff based on the evidence"). I conclude that there is no such evidence in the record. As to plaintiff's position that constructive notice of the offending heater is sufficient for gross negligence, plaintiff has provided no case so holding, and the concept of contrsuctive notice is antithetical to "wilful" negligence, malfeasance or nonfeasance. (Lease ¶ 53). Prato v. Vigliotta, supra, 253 A.D.2d 749, is not to the contrary. There, the trial court denied a defendant's motion for summary judgment on claims of trespass, assault, battery, and gross negligence arising from leading gas tanks, and the Second Department affirmed, holding that plaintiff had not come forward with evidence sufficient to raise an issue of fact as to whether that defendant was responsible for the contamination at issue.
That portion of the lease states:
Tenant agrees to accept the said premises `as is' and in such condition as the same may be at the date of commencement of the term of this Lease, and Landlord shall not be obligated or required to do any work or to make any alterations or install any fixtures, equipment or improvements, or make any repairs or replacements to or on the Demises [sic] Premises . . . .
(Lease ¶ 63).
Thereafter, the Court observed:
Moreover, the plaintiffs' failure to come forward with evidence of any intentional or reckless acts or omissions on the part of Sun Oil, or of actual or constructive notice of any defects in the tanks that caused or contributed to the contamination also mandates dismissal of the causes of action alleging gross negligence.Id. (citations omitted). Such dictum is insufficient to support plaintiff's argument. Accordingly, I find that even if as a matter of law the landlord could be found to have had constructive notice that (1) the tenant engaged in the dispensing or transferring of gasoline and (2) that the water heater was not installed according to code for such purposes, I find that such events would be insufficient to permit a jury to find gross negligence under the New York cases.
There is no evidence in the record from which the jury could conclude that the landlord had actual knowledge of the tenant's dispensing or transferring of gasoline in the garage.
Second, in relying on the landlord's failure to inspect the premises before turning them over to this tenant, plaintiff points to various instances of failure to act found in the cases cited to constitute gross negligence and analogizes those facts to Trio's failure to inspect. The difference, however, is qualitative. For example, in Rand, 130 A.D.2d 429, it was undisputed that the Holmes Protection agency received an "alarm condition" signal from the Rand jewelry premises on a Saturday. There was evidence in the record from which the jury could have found that (1) Holmes had not received a code from the Rand premises indicating that the person entering was authorized; (2) Holmes had failed to inform Rand of an earlier break-in until well after the later burglary at issue; and (3) that Holmes had failed to maintain an Instruction Card indicating that Rand was not open on the Saturday of the burglary. Accordingly, the First Department affirmed the jury's finding of gross negligence. InTravelers Indemnity, 136 F. Supp.2d 253, the architect agreed to provide a design for the construction of a school gymnasium, detailed drawings and specifications, to inspect during construction, to protect the school against defects and deficiencies in construction, to ensure that construction was in accordance with the drawings and specifications and to ensure necessary testing and inspection during construction. 136 F. Supp. at 254. In its complaint alleging gross negligence, the insurance company subrogee alleged that the architect permitted the erection of steel trusses despite the fact that the trusses and the truss welds had not been inspected, failed to notice or address a discrepancy between the shop drawings of the steel trusses and those which were submitted for the work, failed to ensure that the testing subcontractor actually tested the steel trusses, failed to request information about the steel fabricator that would have revealed that the fabricator had never fabricated a steel truss before, failed to verify the welders' certifications and failed to have the fabrication facility inspected. After the steel trusses failed, the action ensued. On those facts, the court held that whether these failures rose to the level of reckless disregard for the rights of others was a question properly put to a jury. Id. at 257.
Sharoni, supra, 206 A.D.2d 462, was also an alarm company case. Although no facts are recited in the opinion relied on by plaintiff, the court held that "whether [the alarm company's] employee performed an adequate inspection of the premises and, if not, whether such failure to inspect constituted gross negligence, present triable issues of fact. . . ." Counsel has presented nothing else to shed light on the basis of the court's decision.
In each of these cases, the failures relied on by the courts were egregious; they evinced a reckless disregard for the rights of others and "smacked" of intentional wrongdoing. Colnaghi, 81 N.Y.2d at 823-824, 595 N.Y.S.2d at 383. Here, the landlord's failure to inspect a premises before turning it over to a tenant in the same line of work as the prior tenant does not rise to the level of gross negligence described by the New York cases or the wilful nonfeasance included in the lease language.
Plaintiff also cites to Food Pageant, Inc. v. Consolidated Edison Co., Inc., 54 N.Y.2d 167 (1981). There, the Court of Appeals affirmed the jury's finding of gross negligence against Con Edison in connection with the 1977 New York City blackout based on both the utility's actions and inactions. ("Chief among the [circumstances under Con Edison's control which could have contributed to the eventual blackout were] the behavior or lack of action of Con Edison's system operator. . . ." 54 N.Y.2d at 174. Because this case is based on both action and inaction, including failure to comply with requests made by the New York Power Pool to shed load after the initial lightning bolt struck the Con Ed system, it is also inapposite. Counsel also cites Barrett v. United States, 651 F. Supp. 608 (S.D.N.Y. 1986) and Bonner v. New York City Police Department, 2000 U.S. Dist. Lexis 11738 (S.D.N.Y. 2000), both actions under 42 U.S.C. § 1983. I reject those cases as inapposite. It is instructive to compare Rand and Sheroni to Colnaghi, supra. In Colnaghi, the alarm company had failed to wire or otherwise protect a skylight through which burglars entered. The Court held that "while perhaps suggestive of negligence or even `gross negligence' as used elsewhere [the failure to wire the skylight] does not evince the recklessness necessary to abrogate [plaintiff's] agreement to absolve Jewelers from negligence claims." 81 N.Y.2d at 824, 595 N.Y.S.2d at 383.
This is particularly so in light of the other lease provisions to the effect that the tenant is fully familiar with the premises and takes it "as is", the landlord has no obligation to make changes and the tenant is responsible for heat and hot water.
Accordingly, defendant's motion for summary judgment on plaintiff's claim of gross negligence is granted. Not only does Trio's non-action with respect to the water heater not rise to the level of "an intentional failure to perform a manifest duty to the public," Internat'l Mining Corp., 57 A.D.2d at 67, 393 N.Y.S.2d at 407 (emphasis added), the combination of lease clauses demonstrates that Trio had no duty to the tenant with respect to the water heater. E.g., Polak v. Bush Lumber Co., 170 A.D.2d 932, 566 N.Y.S.2d 757 (3rd Dept. 1991) (no covenant or warranty of habitability in "as is" commercial leases); Coulston v. Telescope Productions, Ltd., 85 Misc.2d 339, 378 N.Y.S.2d 553 (1st Dept. 1975). In addition, plaintiff has not presented any case imposing a statutory duty under the statutes and regulations it cites.
Conclusion
For the reasons stated above defendant's motion for summary judgment is granted. Accordingly, the Clerk of the Court shall mark this action closed and all pending motions denied as moot.
SO ORDERED