Opinion
# 2011-038-560 Claim No. 113796 Motion No. M-79369 Cross-Motion No. CM-79534
09-29-2011
GOMEZ v. THE STATE OF NEW YORK
Synopsis
Claimant's motion to compel production of documents and inspection of injury-producing crane denied as moot. Claimant's motion to compel defendant to produce two additional witnesses for deposition denied where claimant failed to demonstrate that previously deposed witness had insufficient knowledge or was otherwise inadequate, and did not demonstrate a substantial likelihood that the additional witnesses possessed information that was relevant and material to prosecution of claim. Claimant's motion to amend the claim to add a cause of action for violation of Labor Law §241(6) granted where claimant demonstrated the applicability of 12 NYCRR § 23-8.2(b)(iii). Defendant's cross motion seeking summary judgment dismissing negligence and Labor Law § 200 claims denied where claimant raised issue of fact regarding defendant's authority to control the claimant's work activity. Case information
UID: 2011-038-560 Claimant(s): ANTONIO GOMEZ Claimant short name: GOMEZ Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 113796 Motion number(s): M-79369 Cross-motion number(s): CM-79534 Judge: W. BROOKS DeBOW RAPPAPORT, GLASS, GREENE & LEVINE, LLP Claimant's attorney: By: James L. Forde, Esq. THE LAW OFFICES OF EDWARD GARFINKEL Defendant's attorney: By: David Persky, Esq. Third-party defendant's attorney: Signature date: September 29, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
This claim alleges that claimant, an employee of non-party contractor DeFoe Construction, was injured on April 9, 2007, when he was working on a construction crew at a worksite under the Brooklyn/Queens Expressway (BQE) on the Brooklyn side of the Battery Tunnel.As alleged in the second amended claim, "claimant was near a crane being used on this project and was in the process of removing a shoe from beneath a retractable leg when a panel on the crane slammed closed on the claimant's left hand" (Second Amended Claim, filed Jan. 7, 2010, ¶ 2), causing claimant to suffer substantial injuries. The second amended claim asserts that the State is liable in common-law negligence and pursuant to Labor Law § 200. Claimant now moves for an order compelling defendant to respond to claimant's post-deposition discovery demands and to produce two additional witnesses for deposition,for an order granting leave to amend the second amended claim to "include recovery pursuant to Labor Law Section 241(6)," and an order permitting claimant to examine the crane. Defendant opposes the motion in its entirety, and cross-moves pursuant to CPLR 2221 for permission to reargue its previous motion for summary judgment and for an order pursuant to CPLR 3212 granting summary judgment to defendant and dismissing the claim.Claimant opposes the cross motion.
This claim was originally assigned to the Honorable Melvin L. Schweitzer and was transferred to the undersigned on February 22, 2011.
During a status conference conducted on November 16, 2010, claimant was directed to serve a notice for the depositions, and was directed to move to compel if defendant failed to comply (see Forde Affirmation, Exhibit 6). Thus, it appears that claimant's entitlement to depose the two witnesses that are the subject of this motion has not been previously decided.
Although defendant has noticed the cross motion as one to reargue its prior motion for summary judgment pursuant to CPLR 2221, it is clear that on November 16, 2010 defendant was given permission to make this motion for summary judgment (see Forde Affirmation, Exhibit 6). While claimant offers procedural objections to the motion, it does not contend that such permission was not properly given. The undersigned will not revisit the Court's prior determination that defendant should have a second opportunity to move for summary judgment.
DISCLOSURE
Turning to that part of claimant's motion that is addressed to his post-deposition discovery demands and his request to examine the crane, these matters were addressed at a June 13, 2011 conference, during which time claimant's counsel recited all of the remaining items due to be produced by defendant, as set forth in the June 14, 2011 correspondence of the Court. Thereafter, defendant produced documents in response to each of those items, except certain "Progress Meeting Minutes" and a "Safety Check List" which defense counsel represented do not exist (see Correspondence of David Persky, Esq., dated June 30, 2011, with enclosures). Defense counsel's correspondence drew claimant's attention to previously produced photographs, and stated that arrangements had been made for claimant's counsel to inspect the crane on July 20, 2011. Claimant has not advised the Court that defendant's June 30, 2011 responses to claimant's demands for discovery and inspection were insufficient, incomplete, or otherwise non-compliant with the Court's June 14, 2011 "so-ordered" correspondence. Accordingly, those parts of claimant's motion seeking an order compelling defendant to respond to post-deposition discovery demands and an order permitting claimant to examine the crane will be denied as moot.
Claimant further requests an order compelling defendant to produce Engineer Albert Wong and DOT Inspector/Engineer Pertsovskiy, both of whom are employed by defendant, for depositions. These depositions are sought further to the deposition of Alberto Villaman, who was an employee of a contractor and who served as the resident engineer on the construction project (see Forde Affirmation, Exhibit 5, pp. 5-6), and who was produced for examination by defendant (see Forde Affirmation, ¶ 9). Defendant refused to produce these two witnesses because claimant had already deposed Mr. Villaman, who was a knowledgeable witness who "had abundant and substantial knowledge of the work site and provided a great deal of information related to the issues in this case" (see Forde Affirmation, ¶ 28; Exhibit 8). In opposition to claimant's motion, defendant asserts that claimant has not demonstrated his entitlement to additional depositions. "In order to show that additional depositions are necessary, the moving party must demonstrate that (1) the representatives already deposed had insufficient knowledge, or otherwise provided inadequate information, and (2) there is a substantial likelihood that the person or persons sought for depositions can supply information that is material and necessary to the prosecution of the case" (Filpo v Linemaster Switch Corp., 244 AD2d 454, 454 [2d Dept 1997]). The Court agrees that claimant's moving papers do not make any such showing, and claimant's submission in reply to defendant's opposition offer no further facts or arguments on the point. Accordingly, that part of claimant's motion to compel defendant to produce additional witnesses for examination will be denied.
AMENDMENT OF THE CLAIM
As noted above in footnote number 1, the Honorable Melvin L. Schweitzer presided over this claim prior to its transfer to the undersigned and rendered a decision on prior motions on this claim (see Gomez v State of New York, UID #2009-036-526, Claim No. 113796, Motion Nos. M-76035, CM-76463, Schweitzer, J. [Sept, 18, 2009]). Claimant was denied permission to amend the claim to include a cause of action pursuant to Labor Law § 241(6), without prejudice to a renewed motion to so amend the claim. However, claimant was permitted to amend the claim to allege a violation of Labor Law § 200 despite defendant's opposition thereto to on the ground that there were issues of fact whether the State had authority to control the activity which brought about claimant's injury. Defendant's cross motion for summary judgment dismissing the claim was denied for the same reason.
The final relief sought by claimant on the instant motion is permission to amend the second amended claim to assert a cause of action pursuant to Labor Law § 241(6). Judge Schweitzer's prior decision addressed claimant's initial request for this relief, determined that the merit of such a cause of action rested upon the applicability of 12 NYCRR §23-8.2(b)(2)(iii) (the New York State Industrial Code) to the accident that caused claimant's injury, and concluded that claimant had not demonstrated the applicability of that particular provision of the Industrial Code. Judge Schweitzer recited the allegations in the proposed amended claim, which follow in relevant part:
At the time the accident took place . . . the claimant was attempting to remove a shoe from beneath an outrigger on a mobile crane/ cherry picker . . . so the outriggers could be retracted into the machine. . . [T]he improper positioning of the crane did not permit the operator of the crane to have a clear view of the claimant as the claimant attempted to remove the shoe. In order to keep his balance . . . the claimant was forced to place his hand directly on the crane/cherry picker in an area where there was an open panel approximately 12" x 12" in dimension that would open and close to allow the hydraulic legs of the outriggers to extend and retract into the machine. With his hand in this position, the panel slammed closed on the claimant's left hand.(Gomez v State of New York, UID # 2009-036-526, supra).
In its entirety, 12 NYCRR §23-8.2(b)(2)(iii) states "[e]ach outrigger on a mobile crane shall be visible from its actuating location." Judge Schweitzer was unpersuaded by counsel's factually and legally unsupported assertion that the "actuating location" addressed in 12 NYCRR §23-8.2(b)(2)(iii) meant the crane operator's cab. The decision further states:
Nor does [counsel] offer any expert affidavit to explain how this regulation is aimed at preventing what happened here. Just by reading this regulation, the court is not persuaded that claimant's interpretation of what the regulation means and what it is intended to do is correct. It seems that the regulation may be aimed at assuring visibility of the footing of outriggers from their "actuating location" so that the crane can be so maneuvered until all of its outriggers are firmly planted on the ground. At this point, then, the court is not persuaded that a cause of action under § 241 (6) exists as to permit the amendment.
(id.). Claimant's reliance on Catarino v State of New York (55 AD3d 467 [1st Dept 2008]) was rejected by Judge Schweitzer as factually dissimilar and because claimant was relying on a different provision of section 23-8.1, which specifically stated that a crane "shall not hoist, lower, swing or travel while any person is located on the load or hook" (Gomez, supra). In Catarino, the crane operator started reeling in the cable that was attached to the load while claimant was located on the load, and his hand was drawn into the cable block when he was injured, and the Appellate Division rejected the State's contention that the regulation did not apply because the load itself was not being moved at the moment when claimant was injured (see id.). Judge Schweitzer stated that 12 NYCRR §23-8.2(b)(2)(iii) "simply provides that each outrigger on a crane must be visible from the 'actuating location'" (Gomez v State of New York, supra).
Claimant's motion to add a Labor Law §241(6) claim was denied without prejudice to a renewed motion to amend "[i]f claimant can come forward with persuasive evidence of his interpretation of the regulation" (id.). A fair reading of Judge Schweitzer's decision reveals that the Court found insufficient factual support for counsel's contentions that the "actuating location" of the mobile crane is the operator's cab, and that this regulatory visibility requirement is intended to protect workers who are working on or near the outriggers, as opposed to ensuring the stability of the crane. Thus, the instant motion to amend the claim may be granted only if claimant persuasively demonstrates that the "actuating location" is the cab of the crane, and that 12 NYCRR §23-8.2(b)(2)(iii) is meant to protect against the kind of accident that gave rise to this claim.
Judge Schweitzer's denial of claimant's prior motion to amend the claim makes it clear that he did not find merit in claimant's arguments that were addressed to other provisions of the Industrial Code because if he had found merit, the motion to add a cause of action pursuant to Labor Law § 241(6) would have been granted, at least in part. The text of Judge Schweitzer's decision makes it clear that he permitted a further motion to amend the claim addressed solely to the applicability of 12 NYCRR § 23-8.2(b)(2)(iii), and thus, arguments by claimant in support of the instant motion that are addressed to other provisions of the Industrial Code that were or could have been argued on the initial motion will not be considered.
In large part, claimant's argument in support of the instant motion to amend are merely minimally revised arguments that were submitted before Judge Schweitzer on the prior motion (see Forde Reply Affirmation and Affirmation in Opposition to Defendant's Motion for Summary Judgment [M-76035, CM-76463], dated April 7, 2009, ¶¶ 42-54; and see Forde Affirmation [M-76369], dated Jan. 18, 2011, ¶¶ 40-51). Claimant does, however, rely upon the deposition testimony of Alberto Villaman, which was conducted after Judge Schweitzer's decision, in which the following colloquy occurred:
Q. What about [any requirements] specifically with regard to the use of the outriggers or the footing of the cranes, are you familiar with any safety requirements dealing with clearance or site [sic] lines?(Forde Affirmation, Exhibit 5, pp. 42-43). It is inferrable from this testimony that the operator of the crane actuates the outriggers, and that inference supports the affidavit of William Marletta, in which he states that "[t]he actuating location is the point from which the operators controls are located that will activate the outriggers - - - - - in this case, the operator's cab."Thus, claimant has adequately demonstrated that the operator's cab on the crane that caused his injury is the "actuating location" within the meaning of 12 NYCRR §23-8.2(b)(2)(iii).
A. No.
Q. Are you familiar with any requirements for cranes like this one that, prior to either extending or retracting the outriggers of the crane, that the operator of the crane has to have a direct view from where he is sitting to the outriggers?
A. Yes, in general, it's either him having a direct view or having a spotter. (emphasis added).
Q. What is a spotter?
A. Separate set of eyes that would be able to let the person operating the crane know that he is able to proceed or instruct him on what to do.
The Court notes that claimant's initial submission omitted Marletta's curriculum vitae. That omission is cured, however, by claimant's later submission (see Forde Affirmation in Opposition to Cross-Motion by the State, and in Reply to State's Opposition, Exhibit 17). Defendant's contention that Marletta's affidavit should be rejected because "claimant is, in effect, now submitting an admissible affidavit of Mr. Marletta for the first time in his reply" (Persky Affirmation in Reply, ¶ 28) is not persuasive. Inasmuch as defendant raises no objection to the substance of Marletta's affidavit, and as it supports his status as an expert in the field of workplace safety, the expert affidavit will be considered on the motions.
Turning to whether claimant has answered the second issue addressed by Judge Schweitzer - whether the regulation is intended to protect against this type of personal injury - Villaman's deposition testimony is silent on this question. However, with reference to 12 NYCRR §23-8.2(b)(2)(iii), Marletta states that "[t]he cab operator must maintain a clear view of the area where the outrigger is located to prevent EXACTLY the kind of accident we have here . . . [where claimant] had to bend down to pick up the shoe/plate of the outrigger and the crane operator lost sight of him" (Marletta Affidavit, p.5, ¶ 5), which provides admissible evidence that 12 NYCRR §23-8.2(b)(2)(iii) is applicable to the accident.Defendant has offered no evidence or substantive argument in opposition to the motion about why 12 NYCRR §23-8.2(b)(2)(iii) would be inapplicable to claimant's accident. While the purpose of the regulation may, as Judge Schweitzer noted, be addressed to the stability of the crane, the undersigned perceives no reason why the regulation does not also serve the purpose of protecting against injury to workers who are working at or near the outriggers.
Defendant's opposition to Marletta's affidavit on the ground that it is lacking in factual support (see Persky Affirmation in Support and Opposition, ¶¶ 12-13) is unpersuasive. "In some situations, the nature of the subject matter or the expert's area of special skill will suffice to support the inference that the opinion is based on knowledge acquired through personal professional experience" (Romano v Stanley, 90 NY2d 444, 452 [1997]). Where the expert offers evidence about the purpose of a regulatory provision - an inquiry unrelated to the specific facts of the claim - factual support from the record for his opinion is unnecessary.
Further, Marletta's statement that 12 NYCRR §23-8.2(b)(2)(iii) is applicable to claimant's accident is supported by Field v New York Univ. (1 Misc 3d 559 [Sup Ct New York County 2003]). In that claim, the plaintiff, like claimant here, suffered injury to his hand when it got caught during the retraction of a crane outrigger. The Court held that claimant had failed to offer evidence that 12 NYCRR §23-8.2(b)(2)(iii) had been violated, implicitly acknowledging the provision's applicability (see Field, at 561-562). To the extent that the parties dispute whether the cab operator could see the outrigger, or whether the crane operator's alleged failure to see claimant was a proximate cause of the accident (see e.g. Forde Affirmation, ¶ 25; Persky Affirmation in Support and Opposition, ¶¶ 26), these are disputed issues of fact to be resolved at trial, and not any reason to deny claimant's motion to amend the claim to assert a Labor Law § 241(6) cause of action. As Judge Schweitzer noted in his decision on the prior motions, leave to amend a pleading should be freely given absent prejudice or surprise (CPLR 3025[b]). In sum, claimant's motion to amend the claim is supported by admissible evidence, finds further support in Field, and defendant has not demonstrated that 12 NYCRR §23-8.2(b)(2)(iii) is or should be inapplicable to this claim as a matter of law. Accordingly, claimant's motion to amend the claim to include a cause of action pursuant to Labor Law § 241(6) and 12 NYCRR §23-8.2(b)(2)(iii) will be granted.
SUMMARY JUDGMENT
The Court now turns to defendant's renewed motion for summary judgment. As an initial matter, counsel appeared before the undersigned on the motion and cross motion by video-conference on June 13, 2011, with the Court sitting in Albany, New York and counsel appearing in New York City. As stated in this Court's "so ordered" correspondence of June 14, 2011:
Claimant has objected to defendant's cross motion and its affirmation in reply with exhibits including the affidavit of Phillip Lamanna on the ground that they were not timely served. Mr. Persky set forth the circumstances that occasioned the late filing of defendant's cross motion and of its reply papers, citing the adjournment of the motion return date by the Clerk of the Court, the minimal delay and the lack of prejudice to claimant. Over defendant's stated concerns, the Court afforded Mr. Forde the opportunity to respond to defendant's last submission. Such response shall be filed and served not later than July 15, 2011, and decision on the motion and cross motion is held in abeyance pending further submission (emphasis in original).
Claimant did not submit a response as permitted by this correspondence. The argument in his previously submitted opposition relies on the rule that courts may not consider post-note of issue summary judgment motions that are not timely as set forth in CPLR 3212(a) (see Brill v City of New York, 2 NY3d 648 [2004]; Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]). However, claimant has not demonstrated that CPLR 3212(a) and the cited cases are applicable when, as here, a pre-note of issue motion is submitted in regard to a schedule that was set by the Court. And although claimant complains of an alleged pattern of dilatory and bad faith conduct by defendant throughout discovery, he does not suggest that he has suffered any prejudice from the four-day delay by defendant in serving its motion (see Forde Affirmation in Opposition and Reply, ¶¶ 4-28). Because claimant has been given an adequate opportunity to respond to the cross motion and to defendant's opposition to his motion, and because claimant has alleged no prejudice occasioned by the late service, defendant's cross motion and its opposition to claimant's motion will not be rejected as untimely.
Turning to the merits of defendant's cross motion, on the prior motions, the issue of defendant's direction, supervision or control over the activity giving rise to claimant's accident was litigated in the context of defendant's motion for summary judgment dismissing the claim and claimant's request for permission to add a cause of action predicated upon Labor Law § 200. Judge Schweitzer allowed the amendment by claimant and denied defendant's cross motion for summary judgment dismissing the claim because there was an issue of fact "as to how actively involved was the State in controlling safety at this construction site" (see Gomez v State of New York, UID # 2009-036-526, supra). In this regard, defendant, the movant for summary judgment dismissing a Labor Law § 200 cause of action and a common-law negligence cause of action, is required to demonstrate that "it had no authority to control the activity that brought about the plaintiff's injury, to enable it to avoid or correct the unsafe condition" (Bornschein v Shuman, 7 AD3d 476, 479 [2d Dept 2004] [citations omitted]). This issue of defendant's authority to control the means and methods of claimant's activity is once again the focal issue of defendant's cross motion.
The rules of summary judgment motions are well established. A movant for summary judgment must establish, by proof in admissible form, the right to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). If the movant establishes prima facie entitlement to summary judgment, the burden then shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact (see Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). On a motion for summary judgment, the court's function is issue finding, not issue determination (see Matter of Suffolk County Department of Social Servs. v James M., 83 NY2d 178, 182 [1994]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). In reviewing the papers submitted on a motion for summary judgment, the Court must examine the proof in a light most favorable to the party opposing the motion (see Rubistello v Bartolini Landscaping, Inc., 87 AD3d 1003 [2d Dept 2011]; Stukas v Streiter, 83 AD3d 18, 22 [2d Dept 2011]). "Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it 'should only be employed when there is no doubt as to the absence of triable issues' " (Kolivas v Kirchoff, 14 AD3d 493 [2d Dept 2005], quoting Andre v Pomeroy, 35 NY2d 361, 364 [1974]).
In support of its current motion for summary judgment, defendant relies primarily upon selected portions of the deposition testimony of Alberto Villaman, who, as noted above, was the resident engineer employed by defendant's contractor, Haks (see generally, Forde Affirmation, Exhibit 5). The evidence relied upon supports defendant's contention that Haks, as defendant's agent on the worksite, did not exercise control over the claimant's work activity (see Persky Affirmation in Support and Opposition, ¶¶ 54-57, 60-61), and thus, defendant has established its prima facie entitlement to summary judgment. In opposition to the motion, claimant submits evidence from which it may be inferred that defendant had some authority to control claimant's work activity, even if that authority was not exercised. In particular, claimant offers a clause in the contract between defendant and Haks that requires inspectors who are employees of Haks to be "prepared to recognize and address any CONTRACTOR oversight or disregard of project safety requirements" (see Forde Affirmation in Opposition to Cross-Motion by the State, and in Reply to State's Opposition, Exhibit 13, p.25, ¶ I.E.1 [emphasis added]). Further, during Villaman's deposition, he agreed that if he "saw that they were setting up the crane and doing something in an unsafe fashion, that [he] could make them stop" (Forde Affirmation, Exhibit 5, p.48), and that if he "observed a crane such as this being demobilized in an unsafe manner, [he could] tell the operator to stop" (id., p.50). And although Villaman testified that upon telling workers to stop and unsafe activity "[w]e would not instruct them on what to do, just simply tell them that what they were doing was inappropriate" (id., p.48), he also testified that if he "saw a contractor doing something that [he] felt was not in accordance with either the safety plan or what [he] considered to be good and accepted practice . . . [he could] tell them to change it" (id., p.27 [emphasis added]). Viewing the evidence in a light most favorable to claimant, the above-referenced contract provision and Villaman's deposition testimony raise an issue of fact as to whether defendant had the authority to direct the manner of work in demobilizing the crane such that defendant could "avoid or correct the unsafe condition" that caused claimant's injury (Bornschein v Shuman, supra at 479; cf. Gasques v State of New York, 59 AD3d 666, 667-668 [2d Dept 2009], affd 15 NY3d 869 [2010]; compare, Cooper v State of New York, 72 AD3d 633, 635 [2d Dept 2010]),and further, whether defendant had the authority to "supervise or control the work" (Cooper v State of New York, 72 AD2d at 635) so that it was conducted in a manner that was "good and accepted practice" (Forde Affirmation, Exhibit 5, at p.27). Accordingly, defendant's cross motion for summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action will be denied.
The Court has not overlooked defendant's implied contention that summary judgment is mandated in this case by the Appellate Division's decision in Cooper v State, in which summary judgment dismissing common-law negligence and Labor Law § 200 causes of action was granted to defendant in a claim by a worker who, like claimant, was injured at a worksite on the BQE reconstruction project and who - according to defense counsel - was also employed by DeFoe (see Persky Affirmation in Reply, ¶ 17). However, the published decision in Cooper is too cursory to evaluate the evidence that was submitted by the parties on the motion in that case. Moreover, the fact that one claimant failed to raise an issue of fact in opposition to a motion for summary judgment does not necessarily mean that another similarly situated claimant could not do so.
Accordingly, it is,
ORDERED, that claimant's motion number M-79369 is GRANTED IN PART, and claimant is permitted to serve an amended claim stating a cause of action pursuant to Labor Law § 241(6) and 12 NYCRR §23-8.2(b)(2)(iii), and is DENIED IN ALL OTHER RESPECTS, and it is further,
ORDERED, that defendant's cross motion seeking summary judgment dismissing the unamended claim number 113796 is DENIED.
September 29, 2011
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims
Papers considered:
(1) Claim No. 113796, filed June 5, 2007; (2) Verified Answer, filed July 17, 2007; (3) Decision and Order in Gomez v State of New York, UID #2009-036-526, Claim No. 113796, Motion Nos. M-76035, CM-76463, Schweitzer, J. (Sept, 18, 2009), all papers recited in footnote 1 thereof, and transcript of September 11, 2009 oral argument thereon; (4) Amended Claim, filed November 30, 2009; (5) Second Amended Claim, filed January 7, 2010; (6) Verified Answer to Second Amended Claim, filed February 16, 2010; (7) Notice of Motion (M-79369), dated January 18, 2011; (8) Affirmation of James L. Forde, dated January 18, 2011, with Exhibits 1-10; (9) Affidavit of William Marletta, Ph.D, CSP, sworn to January 18, 2011; (10) Affirmation in Support and Opposition of David Persky, Esq., dated February 17, 2011, with Exhibits A-D; (11) Affirmation in Opposition to Cross-Motion by State, and in Reply to State's Opposition of James, L. Forde, Esq., dated March 10, 2011, with Exhibits 11-17; (12) Affirmation in Reply of David Persky, Esq., dated April 13, 2011, with Exhibits E-F; (13) Affidavit of Phillip Lamanna, sworn to February 24, 2011, with attachments. (14) Videoconference, June 13, 2011; (15) "So Ordered" Correspondence of the Court, dated June 14, 2011; (16) Correspondence of David Persky, Esq., dated June 30, 2011, with enclosures.