Opinion
# 2016-018-739 Claim No. 123054 Motion No. M-88244 Cross-Motion No. CM-88635
10-12-2016
JOSEPH E. FELBER, JR. v. STATE OF NEW YORK
SIDNEY P. COMINSKY, LLC By: Sidney P. Cominsky, Esquire PINSKY & SKANDALIS, P.C. By: George Skandalis, Esquire
Synopsis
Defendant's motion for summary judgment granted based upon Claimant's primary assumption of the risk and lack of evidence State breached its duty as a landowner.
Case information
| UID: | 2016-018-739 |
| Claimant(s): | JOSEPH E. FELBER, JR. |
| Claimant short name: | FELBER |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123054 |
| Motion number(s): | M-88244 |
| Cross-motion number(s): | CM-88635 |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | SIDNEY P. COMINSKY, LLC By: Sidney P. Cominsky, Esquire |
| Defendant's attorney: | PINSKY & SKANDALIS, P.C. By: George Skandalis, Esquire |
| Third-party defendant's attorney: | |
| Signature date: | October 12, 2016 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves for summary judgment in this matter and Claimant opposes the motion. Claimant has cross moved for leave to amend his claim which Defendant opposes. Oral argument was requested and heard on August 9, 2016. The summary judgment motion will be considered first.
The action stems from an accident which occurred at the New York State Fairgrounds (Fairgrounds) in the Town of Geddes during an annual event called the Syracuse Nationals (Nationals). For one weekend each year at the Fairgrounds, the Nationals event has presented displays of antique and other classic vehicles, and activities such as drag races and tractor pulls on the racetrack in front of the grandstand area. On July 20, 2012, at approximately 9:15 p.m., Claimant was flagging on the track during a drag race event, the Ol' Skool Rodz Drag Race, when he was struck by a vehicle which spun out or broke traction at the end of the course. It is alleged that the Defendant was negligent in its failure as landowner to provide a flag stand for Claimant and for improper maintenance and preparation of the track for the drag races. Also, that in its proprietary capacity, the State failed to maintain its property in a reasonably safe condition and failed to properly control the conduct of its licensee, in this case, Right Coast, Inc., (Right Coast).
The Defendant contends that it is entitled to summary judgment based upon Claimant's primary assumption of the risk, Claimant's inability to show the State breached its duty to Claimant or that any breach was a proximate cause of his injuries. Defendant also asserts that the claim fails to meet the pleading requirements of the Court of Claims Act, and the State's discretionary determinations in licensing and managing the Fairgrounds are governmental functions immune from liability. Claimant, in opposition, argues that there are questions of fact as to whether Claimant assumed any risk of injury, and whether Defendant breached its duty to Claimant. Claimant contends that the State and Right Coast were joint venturers.
FACTS
Most of the facts are not in dispute, despite a few minor discrepancies in witnesses' recollections. Any inconsistencies are not material to the relevant issues in this case, as more fully explained herein.
Each year since 2000, the events manager for the fair, Gary Kerr, and the sole officer of Right Coast, Robert O'Connor, Sr., engaged in negotiations to allow Right Coast to license certain areas of the Fairgrounds for the Syracuse Nationals event. The 2012 contract notes that the New York State Department of Agriculture and Markets runs the Fairgrounds, and the area licensed by Right Coast included certain buildings as well as the grandstand track and pit area.
Exhibit H.
The agreement made the State responsible for parking and traffic on the grounds. Right Coast hired its own security who, in turn, contracted with the Town of Geddes Police to handle traffic on the public streets and highways as needed. The State was to provide trash removal and general maintenance service along with bathroom attendants, recreational vehicle and camping areas, picnic areas, and spectator parking. Right Coast agreed to indemnify the State for its use of the premises, as well as from acts or omissions committed by the agents or employees of Right Coast, among other things. Mr. O'Connor, Sr., testified in his deposition that Right Coast was responsible for how the drag races were conducted. Mr. James Burgen, a volunteer and organizer of the Ol' Skool Rodz Drag Race, oversaw the drag racing event.
The agreement also states "[n]othing in this License shall grant or be construed as creating a co-partnership between the DEPARTMENT and the LICENSEE, or to constitute the LICENSEE as an agent of the DEPARTMENT." Furthermore, it provides that Right Coast assumes all risks and responsibility for all accidents or injuries to people or property during the event. One of the final provisions states that the licensee is not an employee or agent of the State.
New York State Department of Agriculture and Markets.
Right Coast.
Kenneth Bresnahan testified at his deposition that he was a heavy equipment operator for the New York State Fair, and since 2009 has had the primary responsibility for racetrack maintenance. He also submitted an affidavit regarding general race track maintenance and the maintenance on the day of the accident. Mr. Bresnahan has maintained and groomed the race track for well over 20 years. He explained that in 2012, the track was used for two motorsport events: the Syracuse Nationals in July, and Super Dirt Week in the fall. However, he groomed the track almost daily for use by the horses boarded at the fair. Mr. Bresnahan described how the track has actually two different areas, the outer track, nearest the grandstand, has a clay base - often referred to as the dirt track, and the inner stone dust track is used only for horses. His grooming technique differed depending on the use.
When grooming the track for drag racing, Mr. Bresnahan uses a roller to compress and flatten the track surface. He stated he is unaware of any industry standards for drag race track grooming, but the goal is to smooth and flatten the surface as best as possible. He noted that a dirt track can never be perfectly smooth and flat.
For the 2012 Syracuse Nationals, Mr. Bresnahan said he added gallons of water to the track, and when it was not too wet or too dry, he would roll the surface. More water would be added to harden the clay and he would roll it again. It took about three hours to complete the preparation. Mr. Bresnahan testified that no clay track will have a perfect surface, even given the best maintenance efforts. After the races began, Mr. Bresnahan did not re-groom the track, nor was he asked to perform any maintenance to the track.
Mark Kolceski, Keith Bresnahan's retired predecessor, submitted an affidavit that corroborated Mr. Bresnahan's description of his racetrack maintenance duties. Mr. Kolceski worked full-time for the New York State Fair as a general mechanic and equipment operator for approximately 35 years. He was primarily responsible for the maintenance and preparation of the racetrack for the New York State Fair events as well as other events held at the track during other times of the year. Mr. Kolceski's experience also includes over 40 years of dirt racetrack maintenance and preparation for other dirt racetracks in the Central New York area. He agreed that there are no industry standards, rules, or regulations for how dirt racetrack surfaces should be prepared and maintained. Ruts, holes, cuts, and imperfections commonly develop even with the most careful, thorough preparation of the track; it is normal and inherent to any dirt track racing event.
Defendant submitted the affidavit of Karl Spoonhower, the proprietor/owner of Thunder Mountain Raceway, a 3/8-mile dirt-track motorsport raceway in Center Lisle, New York. For 25 years, Mr. Spoonhower has personally prepared the track. He is fully familiar with the maintenance and preparation of a dirt racetrack and its imperfections, and uses equipment similar, if not identical, to the equipment used by the New York State Fair. He described the same method of preparing the track as Mr. Bresnahan and Mr. Kolceski, using a combination of water and compression that varies dependent on other factors such as the composition of the clay and weather conditions. Mr. Spoonhower has no knowledge of any industry standards for the preparation of dirt tracks. Once racing has begun, Mr. Spoonhower does not inspect his track because it is a normal feature of dirt track racing that the track conditions will change as the racing progresses.
The Ol' Skool Rodz Drag Race was first held during the 2011 Nationals. The race was intended to be an exhibition event - an entertaining show for the spectators, with a short track and vehicle speeds of only 30-35 miles per hour. The drag race was the only event taking place on the track in 2011. Mr. Burgen asked Claimant to flag at the finish line for the drag race, and Claimant stood to the left of the finish line about 10 feet from the infield to flag. Claimant testified that Mr. Burgen did not tell him where to stand. There were no injuries that year, although, they used young women as "starters" and one of them got hit with some stones as one of the races began.
The outer track at the Fair, called the dirt track, is an oval track, but only a portion of the straight-away was used for the 2012 drag track. Mr. Zibella, owner of Z-1, was hired by Right Coast to set up the track for the races. The track is 90 feet wide but only two cars would race at a time, so two lanes, about 25 - 30 feet wide, were marked with a white line on the infield side and bales of straw and orange cones were placed to divide the lanes. After the finish line, also marked with a white line, the lanes remained divided by the cones almost to the first turn of the track where the cars could turn into the infield pit area. The winner of the race used this to return to the starting line to race again.
A tractor pull, run by another group of volunteers, was using about 20 feet of the innermost part of the straightaway and an 8-foot space separated the two events on the track. A wall separated the track from the infield for a portion of the straightaway and jersey barriers were placed from the end of the wall to the first turn area where the vehicles turned into the infield.
Mr. O'Connor, Sr., also retained Mr. Zibella to provide a "Christmas tree" light system to signal the drivers when to start the race and another light to signal the winner of each race. The finish light could only be seen from the starting line area, spectators in the grandstand could not see it. Mr. Zibella controlled the starting lights from about 75 feet behind the starting line and would not start the race until the track was clear. In between races he walked around the starting area of the track. Mr. Zibella testified that he observed the track that day and it was a fairly smooth dirt track. Even after the racing had begun, Mr. Zibella did not see any ruts, grooves or any deterioration, and no one complained to him about the track.
Mr. Zibella testified that the cable for the light system was a maximum of 200 feet, but he did not use all of the cable, so he estimated that the length of the course was only 125 feet long. For safety, the lights were used so no one would be on the track during the races. Before the drag races, Mr. Zibella held a safety meeting with the drivers, and he told the drivers not to leave the start line if there was anything on the track, even if the start light was green.
Defendant's Exhibit G, Zibella deposition, page 62.
About four months before the 2012 Nationals, Claimant visited Mr. Burgen and his wife, Mary, and was asked if he wanted to flag the drag races again. He agreed. Claimant arrived at the Nationals on July 20, 2012, around 2:00 p.m., and brought his own old car to the event. The Ol' Skool Rodz Drag Race was scheduled for 7:00 p.m. Around 6:30 p.m., Claimant met with the president of Right Coast, Robert E. O'Connor, Sr., and Mr. Burgen, as well as the drag race drivers in a barn close to the race track. The drivers were reminded that this was an exhibition and to be safe and have fun. As in 2011, Claimant brought his own flags, one yellow and one checkered.
Claimant said he received no instructions about where to stand or how to flag the event. Mr. Burgen testified that he recalled telling Claimant to stand near the entrance to the infield, past the finish line, and direct the vehicles into the infield. Mary Burgen testified that after the drivers' meeting, she drove Claimant to the end of the jersey barriers, where she and her husband said Claimant was told to stand to flag the drivers into the infield. Claimant recalled being driven near the finish line. Claimant testified that there was no need to direct the drivers into the infield because the entrance was obvious. He testified that he walked from where he was dropped off to the finish line. Claimant did not remember there being a light system at the finish line so he believed they needed a flag person.
Mr. Burgen testified that at some point during the races he directed Claimant to get off the track. Mr. Zibella also testified that he requested that someone speak to Claimant about staying off the racing lanes. Claimant denies he was ever told to get off the track.
Numerous photographs and videos show Claimant on the track near the finish line that evening. He had flagged 20 - 25 races over the course of about two hours. At approximately 9:20 p.m., Jonathan Linder was racing in the lane nearer the infield for the first time that night. Mr. Linder said he was shifting from first to second gear when his tire seemed to get stuck in a rut, but he did not lose control. He fish-tailed and as a result, his car drifted left. Claimant saw Linder's car coming toward him about 30 feet away and tried to move toward the cement barrier but had no time to get out of the way; it was a matter of seconds. A spectator recorded the event and that video was submitted by Defendant on this motion. It shows Claimant standing about 5- to- 6 feet past the finish line and only a couple of feet toward the infield from the cone marking the inside corner of the finish line. Mr. Linder hit the cone and part of the light system and almost immediately hit Claimant. Claimant was taken to the hospital with multiple injuries. Mr. Linder testified he never saw a flag person that night until seconds before he hit Claimant.
Claimant testified, during his deposition, that he grew up in a car racing family, and he had always owned classic cars and did some drag racing for a few years. He became interested in flagging in his 20's. He estimated that he had been to more than 500 races on both asphalt and dirt tracks. He had flagged from a flag stand and at track level. Claimant had no formal training to be a flag person, just experience gained from flagging, first as an assistant at Brewerton Speedway, and then as the main flag person at Syracuse Microd and Quarter Midget Club at the Fairgrounds. He flagged with those clubs twice a week for 10 years. He also flagged at Brookfield Speedway in the Southern Tier for the Midstate Antique Car Club, and was the main flag person at Skyline Speedway in Cortland on a dirt oval track.
Based upon his experience at racetracks, Claimant estimated that 75 percent of the time there has been at least one spin out or crash during one of the races. His father broke his neck in a dirt racing accident when another car tapped his vehicle causing it to flip over eight times. Claimant estimated that he had seen approximately 100 accidents, including one fatality. He also knew of a flagger who was killed at Fulton Speedway - a friend of his father's. He also had seen spectators and photographers injured during races, including his sister.
Claimant testified that when he walked to the location where he was going to flag, the track seemed like all the other dirt tracks on which he had been. He didn't notice any problems with the track at that time, or even later in the evening, right before he was hit, and he made no complaints about the track.
In response to the State's motion, Claimant submitted an affidavit in which he contradicted or qualified his 50-h and deposition testimony. For example, he states that "I was driven to the track by Mary Burgen and told where to 'stand' to flag the exhibition event. I was in that 'spot' when I was struck by Mr. Linder's vehicle." At the 50-h hearing and his deposition, when asked whether Mr. Burgen or anyone else showed him where to stand to flag, he indicated that he knew where to be from the prior year, he did not speak to anyone about where to stand, and no one gave him specific instructions about how to be a flagman that day. His testified at the deposition that he went down to the area marked with cones as the finish line. Later in that same deposition, when Claimant was asked where he was dropped off, he said he was dropped off "[m]ore toward the wall area and I walked down." And, he continued saying "[i]t doesn't really matter where I was dropped off, I still had to walk."
Claimant's affidavit dated May 19, 2016, ¶ 4.
Defendant's Exhibit G, Claimant's deposition, p. 74.
Defendant's Exhibit G, Claimant's deposition, p. 103.
Defendant's Exhibit G, Claimant's deposition, pp. 103-104.
Claimant submitted, in opposition to Defendant's motion, the affidavit of Robert Barnard, a Professional Civil Engineer, and Lila Laux, a Human Factors Engineer with a Ph.D., in Industrial Psychology/Human Factors Engineering.
Mr. Barnard has over 30 years experience with motorsports on four continents and, among other things, has expertise in the area of correct specifications and safety procedures for competitors, workers, and spectators of these events. After reviewing pleadings, depositions, photographs and videos related to this case, he concluded that the drag races were not managed or staged in a manner that would insure the safety of those involved. He said that the organizers exposed people to a "hot track;" individuals should never be positioned in the competing area. Mr. Barnard refers to the organizers, and references the depositions of Robert O'Connor, Sr., Michael Zibella, James and Mary Burgen, and James O'Connor, but no one who was an agent or employee of the State such as Kenneth Bresnahan. The only statements made about the State's involvement are legal conclusions without any facts to support them as the State was not an "organizer" of the event (see Penda v Duvall, 141 AD3d 1156, 1157 [4th Dept 2016]; Colon v Rent-A-Center, 276 AD2d 58, 61 [1st Dept 2000]). He failed to allege any improper preparation or maintenance of the track which was the State's sole involvement.
Dr. Laux's affidavit also emphasizes the risks associated with being on a motorsport track while the event was taking place. She also concluded that the casual manner in which the events were managed could result in people on or near the track not recognizing the risks involved.
Claimant also argues that the State and Right Coast were essentially a joint enterprise for the Nationals event. He points to the State's contractual right to a percentage of the food and beverage sales, occupancy fees for the camping and RV hook-ups, and operation of its restaurants and concessions and retention of the profits. Claimant notes that Mr. Kerr testified that the State maintained control of the premises and could prevent the licensee from doing anything that was not contemplated by the licensing agreement.
LAW
"Since summary judgment deprives the litigants of their day in court, it is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues." (Matter of Skelly v Carma Realty, 78 AD2d 1005 [4th Dept 1980]). The movant bears the burden to establish its right to judgment as a matter of law by proof in admissible form (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The evidence submitted on the motion must be viewed in the light most favorable to the nonmoving party, giving that party the benefit of any favorable inference (Ruzycki v Baker, 301 AD2d 48, 50 [4th Dept 2002]; Boston v Dunham, 274 AD2d 708, 709 [3d Dept 2000]). The motion should not be granted where there are questions of fact, or where an issue is "arguable." (Sillman v Twentieth Century-Fox Film Corp. 3 NY2d 395, 404 [1957], quoting Barrett v Jacobs, 255 NY 520, 522 [1931]). If the movant fails to make a prima facie showing that it is entitled to judgment as a matter of law, the motion must be denied "regardless of the sufficiency of the opposing papers." (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Only after the moving party has shown sufficient proof to support judgment, as a matter of law, must the opposing party come forward with evidentiary proof to establish the existence of a material fact which would require a trial (Id.; Zuckerman, 49 NY2d at 562).
The State's first argument for summary judgment rests upon the doctrine of primary assumption of the risk and it bears the burden to establish that defense as a matter of law. The State contends that this doctrine entitles it to summary judgment without the need to prove it exercised reasonable care (Maddox v City of New York, 66 NY2d 270 [1985]).
The doctrine of primary assumption of the risk impacts the duty of care owed by the owner or operator of a sporting venue to the participants and spectators. The premises owner clearly has the duty to make the conditions involved "as safe as they appear to be." (Morgan v State of New York, 90 NY2d 471, 484 [1997] quoting Turcotte v Fell, 68 NY2d 432, 439 [1986]). However, if the risks of the activity are fully appreciated or fully obvious, then the voluntary participant is deemed to have to consented to those risks and Defendant has performed its duty, which is no more than "to avoid reckless or intentionally harmful conduct." (Turcotte, 68 NY2d at 437). Where the doctrine applies, it is really "a principle of no duty, or no negligence and [it] denies the existence of any underlying cause of action." [emphasis added]. (Morgan, 90 NY2d at 485 quoting Prosser and Keaton Torts, § 68 at 496-497 [5th ed. 1984]). Three requirements for this defense are: the risks to which the participant is exposed must be inherent to the nature of the activity being performed; the participant must be aware or appreciate those risks or the risks must be so obvious that awareness or appreciation of the nature of the risks can be assumed; and the participant must be voluntarily participating (Morgan, 90 NY2d at 484; Bukowski v Clarkson Univ., 19 NY3d 353, 356 [2012]).
Based upon Claimant's testimony, Defendant has met its burden for summary judgment, establishing Claimant's primary assumption of the risk. Claimant testified to the risks involved in car racing and flagging. Cars crash into other cars or the track walls, flip over, pieces of the cars come loose, and stones are thrown from the spinning tires. Even from a flag stand, Claimant recalled seeing a flagger injured when a car crashed into the stand. Claimant acknowledged the risk of getting hit by one of the vehicles. In his experience as both a race car enthusiast and a flagger, he has witnessed or was aware of drivers, spectators, and flagmen injured by getting struck by vehicles and other objects as well as seeing automobile accidents in races. These risks are inherent to the sport of car racing, and Claimant knew and appreciated the various ways one could be injured when involved with automobile racing. Claimant volunteered to flag the races and he walked to where he wanted to stand. Claimant testified he had no contact with anyone employed by the State on the day of his accident, and he was not coerced or forced in any way to participate in the drag race event.
Defendant's Exhibit G, pp. 215-216.
The differing recollections of the Burgens and Claimant about where he was supposed to stand does not affect the finding that the doctrine of the Primary Assumption of the Risk applies. If Claimant's recollection during the 50-h hearing and his deposition are correct, then he knew where to stand and walked to the area near the finish line. If the Burgens' recollections are correct, and Claimant was told to stand at the infield entrance, then Claimant ignored them and chose where to stand. In either scenario, Claimant made his own decision about being on the track and near the finish line. Claimant's effort in his supporting affidavit to suggest that Mary Burgen told Claimant where to stand is not persuasive. "While issues of fact and credibility may not ordinarily be determined on a motion for summary judgment, where, as here, the self-serving affidavits submitted by plaintiff in opposition clearly contradict plaintiff's own deposition testimony and can only be considered to have been tailored to avoid the consequences of her earlier testimony, they are insufficient to raise a triable issue of fact to defeat defendant's motion for summary judgment." (Phillips v Bronx Lebanon Hosp., 268 AD2d 318, 320 [1st Dept 2000]; see also Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439, 441 [1968]). "The court may not weigh the credibility of the affiants on a motion for summary judgment unless it clearly appears that the issues are not genuine, but feigned." [emphasis added]. (Perez v Bronx Park S. Assoc., 285 AD2d 402, 404 [1st Dept 2001]; Rechlin v Allweather Contrs., 298 AD2d 907, 908 [4th Dept 2002]).
Claimant's effort to distinguish the risks of the Ol' Skool Rodz Drag Race from other motorsport events is unavailing. The risks of standing on a race track, even several feet to the side of the lanes of travel, are readily apparent and do not substantively change with the type, length or speed of the race, or type of vehicle involved in the race. Standing that close to quickly moving vehicles exposes the risk of getting injured by getting struck by a vehicle, a piece of the vehicle, or material from the track. By voluntarily standing there, Claimant accepted those risks and, unfortunately, was seriously injured. There is no evidence that the State did anything to conceal the risks or recklessly or intentionally cause this accident in any way.
Even without the doctrine of primary assumption of the risk, there is no evidence that the State breached any duty it owed to Claimant. The licensing contract gave the State no authority to direct, supervise, or operate the drag race. Claimant's contention that the Nationals event was a joint enterprise with the State because the State received profits from the concession stands and other sales, along with the ability to control inappropriate activities, is insufficient as a matter of law to establish a joint venture. "Essential to the finding of a joint enterprise is the equal right of each member to direct or control the others in respect to the joint enterprise (Fairbairn v State of New York, 107 AD2d 864, 865 [3d Dept 1985]). A "joint enterprise is an endeavor in which two or more persons unite to achieve a common purpose under such circumstances that each has express or implied authority to act for all with respect to the control of the means or agencies employed to execute the plan; in such an enterprise, the negligence of one member may be imputed to others." (Fairbairn, 107 AD2d at 864-865). A participant's characterization of an operation is not dispositive and liability should not be imputed under a joint enterprise theory without the element of control (Fairbairn, 107 AD2d at 865; see Sannella v Nassau County Fire Comm., 87 AD2d 625 [2d Dept 1982]; see also Prosser and Keeton, Torts § 72, pp. 519-520 [5th ed. 1989]). Similar to the Fairbairn case, the State, in this case, did not control the event, it "provided support and a base of operations" for Right Coast (Fairbairn, 107 AD2d at 865), as the licensing agreement makes clear. Right Coast was in control of the Ol' Skool Drag Racing event.
Nor is there any proof that supports the State's liability as a landowner. There is no direct evidence that a rut existed, but even accepting that there was a rut in the track that caused Mr. Linder's vehicle to swerve into Claimant, nothing shows the State created the rut or had actual or constructive notice of it. The testimony and documents establish that the State properly groomed the track before the event began, and further grooming of the track did not normally occur during the event or after each of the individual races. Claimant indicated there were no problems with the track that night, he made no complaints and it seemed like other clay dirt track racing surfaces he had seen. There is no evidence that the State received any complaints from anyone about the condition of the track that night.
Defendant's Exhibit G, Claimant's deposition page 138. --------
Based upon the foregoing, the Court GRANTS Defendant's motion for summary judgment and Claimant's cross motion is DENIED as moot. The claim is DISMISSED.
October 12, 2016
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding this motion:
M-88244
1) Notice of motion. 2) Affidavit of George Skandalis, Esquire, sworn to March 9, 2016, with exhibits and additional affidavits and exhibits attached thereto.
CM-88635
3) Notice of cross motion. 4) Affirmation of Sidney Cominsky, Esquire, in opposition to Defendant's motion and in support of Claimant's cross motion with exhibits attached thereto. 5) Affidavit of Robert Barnard, sworn to May 16, 2016, with exhibit attached thereto. 6) Affidavit of Joseph E. Felber, Jr., sworn to May 19, 2016, with exhibit attached thereto. 7) Affidavit of Lila F. Laux, Ph.D., sworn to May 23, 2016, with exhibit attached thereto. 8) Reply Affidavit of George Skandalis, Esquire, sworn to June 8, 2016, with attachment thereto. 9) Defendant's Reply Memorandum of Law dated June 9, 2016. 10) Reply Affirmation of Sidney P. Cominsky, Esquire in support of Claimant's cross motion.