Opinion
# 2013-041-050 Claim No. 120451 Motion No. M-83374 Motion No. M-83422
09-30-2013
MARK FABIANO and KATHRINE FABIANO v. THE STATE OF NEW YORK
Synopsis
Claimants' motion for summary judgment as to defendant's Labor Law 240 (1) liability is granted where claimant was injured when he stepped on an unsecured scaffold plank and fell from an elevated work site and proof showed that Labor Law 240 (1) violation was a proximate cause of the accident; defendant's motion for summary judgment dismissing the claim in its entirety is denied.
Case information
UID: 2013-041-050 Claimant(s): MARK FABIANO and KATHRINE FABIANO Claimant short name: FABIANO Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) The caption has been amended to state the only : remaining defendant. Third-party claimant(s): Third-party defendant(s): Claim number(s): 120451 Motion number(s): M-83374, M-83422 Cross-motion number(s): Judge: FRANK P. MILANO SACKS & SACKS, LLP Claimant's attorney: By: Adam S. Levien, Esq. ROEMER WALLENS GOLD & MINEAUX, LLP Defendant's attorney: By: Matthew J. Kelly, Esq. Third-party defendant's attorney: Signature date: September 30, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimants move for summary judgment on their Labor Law 240 (1) cause of action as to defendant's liability in this claim alleging negligence and Labor Law violations by defendant. Defendant also moves pursuant to CPLR 3212 for summary judgment "on all claims asserted against it," on the ground that the acts and/or omissions of claimant Mark Fabiano (claimant) were the sole proximate cause of his accident. Claimants oppose defendant's motion except that they withdraw their Labor Law 200 negligence cause of action.
On September 21, 2011, at about 9:15 p.m., claimant was injured when he fell approximately 18 feet to pavement from a platform/scaffold (scaffold) that he was helping to erect under the New York State Route 23 bridge (Catskill Bridge), which passes over the New York State Thruway (I-87) near Thruway Exit 21 in Catskill, New York.
Claimant was employed at that time as a bridge painter by painting contractor Blast-All, Inc. (Blast-All). Blast-All had contracted to paint several bridges owned by defendant, including the Catskill Bridge, after the prior painting contractor hired by defendant "defaulted on the contract" because "they were extremely slow and could not progress the work."
Blast-All, pursuant to its contract with the defendant, prepared and submitted a work site safety plan to defendant which defendant reviewed and approved. The safety plan required that safety harnesses and lanyards be used by workers to prevent falls when working more than six feet off the ground. The safety plan further required that a "safety cable will be installed on all elevated work areas to allow workers to tie off" their safety harnesses and lanyards. The safety plan directed that the safety cable "will not be used for other purposes, such as supporting scaffolding."
Defendant employed a civil engineer named Dennis Smith (Smith) to oversee the painting of the Catskill Bridge, along with several other bridges which passed over the New York State Thruway. Smith would visit the Catskill bridge work site almost every day. The purpose of his visits to the work site was to monitor progress of the work, including checking to see that safety procedures were being followed.
In addition, defendant hired Boswell Engineering to ensure that defendant received a "quality project, proper blasting and priming, to make sure that the contractor fulfilled his responsibilities for safety, and traffic." Boswell Engineering designated an employee named Perry Snyder (Snyder) to oversee the work, including work site safety at the Catskill Bridge work site. Snyder was at the Catskill Bridge work site every day to inspect the blasting and painting operations and to monitor installation of the work platforms and scaffolding.
Blast-All employed an individual named Jeff Stoddard (Stoddard) as its Catskill Bridge foreman. Stoddard was responsible for overseeing the Catskill Bridge painting operation, which included setting up traffic controls, building work platforms and overseeing the actual blasting and painting that took place at the work site.
Blast-All also employed a site safety manager at the Catskill Bridge work site named Greg Internicola (Internicola). Internicola monitored work site safety for the contractor on a daily basis at the Catskill Bridge work site.
Claimant Mark Fabiano was the only witness to the accident. He had 23 years of experience as a bridge painter and had come to the Catskill Bridge work site about a week prior to his accident after having served as foreman at another Thruway bridge work site (Prattville). Work at the Catskill Bridge site had been proceeding for a period of time prior to claimant's arrival. Although Stoddard was the Blast-All Catskill Bridge work site foreman, claimant often acted as an assistant foreman at the work site.
Claimant testified at his deposition that at the Prattville work site, where he was the foreman, he had used a harness and retractable lanyard attached to "safety cables . . . strung on the bridge." He further testified that the only safety devices at the Catskill Bridge work site were "handrails on the truck." It is undisputed that no safety cables were set up at the Catskill Bridge work site. Claimant further testified that it was the responsibility of the Blast-All "safety guy" (Internicola) to direct whether and where safety cables would be placed:
"The safety guy is the one who designated where the stuff [safety cables] should be and how it should be put up . . . He states where he wants them. And I comply with what he wants to do as far as where they need to be and how high and at what distance and at what location."
Claimant worked at the Catskill Bridge work site for about a week prior to his accident. He had his own safety harness at the job site but didn't wear it because "[t]here was no place to hook it to." Claimant acknowledged that he had been warned by Smith and Snyder for failing to wear a safety harness at the Prattville job site where a safety cable was available to tie off on.
Claimant testified that the platform/scaffold which claimant and fellow Blast-All workers were assembling at the time of the accident "consisted of steel hangars and OSHA planks." The steel hangars were to be installed by workers "out of a truck in the traffic lanes" below the bridge. In particular, the platform/scaffold consisted of:
"Steel hangars attached to the bottom flanges of the beams, three-by-five wooden lands that ran between the hangars, two-by-12 OSHA planks that ran perpendicular to the lands on top of them, and then plywood sheeting that was laid out on top of the planks."
Claimant also testified that it was not possible to tie off a safety harness "to any of the structures [the hangars] that were constructed there" nor could a safety harness be tied off to the existing bridge work because it was "too smooth."
Claimant, at the time of the accident, was serving as work site foreman, and just before the accident claimant was on the "roadway of Route 23" and was "going from the roadway down to where they were installing the planks" from a scissor lift truck.
Claimant proceeded down a flight of stairs to the platform/scaffold over the southbound lanes of the Thruway, stepped up about 18 inches to a permanent concrete pier and then stepped onto the "first plank that had been laid out by the guys in that truck." Claimant intended to "help them expedite laying out the last three planks on that rung."
Claimant testified that he "had been on planks adjacent to it earlier in the evening." Claimant recalled that he stepped from the permanent concrete pier to planks "previously that same evening." Claimant further testified that the path he took to the point of the accident was the only path available to him.
When claimant stepped on the plank, it "tipped end for end and hit me in the chin and split my mouth open. And then it fell to the ground. And I fell next to it."
Claimant testified that the plank which tipped and caused his fall was not secured but instead was intended to "sit on top of the lands" until "[w]hen the platform is complete, they are - they're all tied together with the plywood."
Claimant looked at the plank before he stepped on it and it "appeared stable, level, and secure." Claimant stated that the planks needed to be "equally on either hangar so that they lay level" and assumes the plank flipped because "one end of the plank was beyond the hanger post . . . so that it cantilevered the land" and thus not properly balanced. Claimant could not tell that it was unbalanced by looking at it.
Claimant's description of the circumstances of the accident is uncontradicted.
The claim alleges that defendant is responsible for claimants' injuries and damages by "reasons of negligence . . . of the [defendant and] its contractors . . . in the ownership, operation, management and control of the aforesaid premises . . . [and by violations] of Sections 200, 240 and 241 (6) of the Labor Law."
The standard for review of these motions is well-established:
"A motion for summary judgment should be entertained only after the moving party has established, by competent admissible evidence, that it is entitled to judgment as a matter of law. . . . If the movant meets this initial burden, the opposing party is required to submit evidence which raises a material issue of fact to preclude an award of summary judgment" (Ware v Baxter Health Care Corp., 25 AD3d 863, 864 [3d Dept 2006]).
Once the moving party has satisfied this obligation, the burden shifts and the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue (Svoboda v Our Lady of Lourdes Mem. Hosp., Inc., 31 AD3d 877 [3d Dept 2006]).
Neither party asserts that a trial is required in order to resolve issues of fact with respect to the cause of action based upon Labor Law 240 (1). Each insists that it is entitled to judgment as a matter of law. The legal issues raised by this cause of action reduce to whether the platform being assembled constituted a scaffold which collapsed and which was a proximate cause of the accident.
Labor Law 240 (1) provides as follows:
"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, 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."
In Rocovich v Consolidated Edison Co. (78 NY2d 509, 513 [1991]), the Court of Appeals explained that:
"The legislative purpose behind this enactment is to protect 'workers by placing "ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor" (1969 NY Legis Ann, at 407), instead of on workers, who "are scarcely in a position to protect themselves from accident" (Koenig v Patrick Constr. Co., 298 NY 313, 318).' "
Courts are required to "liberally construe the statute to effect its purpose of protecting workers" (Hodges v Boland's Excavating & Topsoil, Inc., 24 AD3d 1089, 1091 [3d Dept 2005], lv denied 6 NY3d 710 [2006]).
The Court of Appeals recently reminded, in Dahar v Holland Ladder & Mfg. Co. (18 NY3d 521, 524 [2012]), that:
"Labor Law § 240 (1), one of the most frequent sources of litigation in the New York courts, provides rights to certain workers going well beyond the common law. As we have long held, it imposes liability even on contractors and owners who had nothing to do with the plaintiff's accident; and where a violation of the statute has caused injury, any fault by the plaintiff contributing to that injury is irrelevant"
Despite the formidable protections offered workers by Labor Law 240 (1), where the record shows that "there was no statutory violation and that [claimant] alone . . . was fully responsible for his injury," Labor Law 240 (1) provides no relief even though a covered worker has been injured by a fall from an elevated work site (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 291 [2003]).
Cody v State of New York (52 AD3d 930, 931 [3d Dept 2008]) instructs that a Labor Law 240 (1) violation, and a claimant's prima facie entitlement to summary judgment, is established:
"[W]here a scaffold or elevated platform is inadequate in and of itself to protect workers against the elevation-related hazards encountered while assembling or dismantling that device, and it is the only safety device supplied or any additional safety device is also inadequate . . . In addition, where a violation of Labor Law § 240 (1) serves as a proximate cause of the injury, then the worker's own conduct, even if negligent, cannot be deemed solely to blame for it."
In Cody the "claimant was injured when he stepped onto an unsecured sheet of plywood over an opening in a platform covering a stairwell and fell to the stairs below" (Cody, 52 AD3d at 930). The Cody court agreed with the lower court which "equated the platform with a scaffold and found that claimant had been constructing it when he fell" (Cody, 52 AD3d at 930). The lower court dismissed the claim after trial because "claimant had failed to prove that his injuries were proximately caused by the lack of any safety device required by Labor Law § 240 (1)" (Cody, 52 AD3d at 930).
The Cody court reversed the lower court "because the platform itself afforded insufficient protection against the risk of falling into the stairwell" and further found that "the fact that claimant was constructing the platform [did not] obviate the need to protect him from the falling hazard posed by the unsecured sheet of plywood" (Cody, 52 AD3d at 930-931).
The Court finds that claimant has met his initial burden and made a prima facie showing of entitlement to summary judgment as to defendant's liability under Labor Law 240 (1) by offering proof that the scaffold, which claimant was assisting in assembling, collapsed because the plank which "tipped end for end" when claimant stepped on it, and which fell along with claimant, had been improperly and insecurely placed upon the scaffold which was being assembled.
The pertinent facts are similar to those in Davis v Pizzagalli Constr. Co. (186 AD2d 960, 961 [3d Dept 1992]), where the plaintiff/painter was injured when he fell from scaffolding and the plaintiff's:
"[U]ncontradicted deposition testimony establishes that a board which was part of the scaffold platform 'kicked up', causing him to plunge approximately 10 feet to a concrete floor below. This 'kicking up' is essentially a form of collapse, not unlike a rung of a ladder falling from the ladder frame. Two structural members, which were intended to remain attached to each other for proper operation of the scaffold, became separated; this represents a basic failure of the structure, sufficient to establish a prima facie case . . . This situation is distinguishable from one in which someone simply falls from a ladder or platform without any apparent change in the device itself."
The Davis court reversed a lower court denial of the plaintiff's motion for summary judgment as to defendant's liability pursuant to Labor Law 240 (1), noting that it "is clear from the record evidence that the scaffold furnished was 'inadequate in and of itself to protect [Davis] against hazards encountered' in his work . . . and that this violation of Labor Law § 240 (1) proximately caused the accident" (Davis, 186 AD2d at 962).
In Ball v Cascade Tissue Group-N.Y., Inc. (36 AD3d 1187, 1188 [3d Dept 2007]) the court, in reversing the trial court's denial of plaintiff's Labor Law 240 (1) summary judgment motion, followed well-settled law providing that:
"Where, as here, the worker has been provided with a safety device, whether the device afforded proper protection is ordinarily a question of fact to be resolved at trial . . . However, where the uncontroverted evidence establishes that the safety device collapsed, slipped or otherwise failed to support him or her, the plaintiff demonstrates a prima facie entitlement to partial summary judgment under Labor Law § 240 (1)."
Defendant does not contest that claimant has demonstrated a prima facie case of entitlement to summary judgment as to defendant's Labor Law 240 (1) liability based upon the undisputed collapse of the safety device - the platform/scaffold. The affidavit of defendant's attorney concedes that claimant "walked out on an unsecured plank, and the plank shifted causing Plaintiff to fall to the ground below." Defendant has presented no evidence, and does not argue, that the scaffold, at the time claimant stepped upon it, was "adequate and properly placed" (Dowling v McCloskey Community Servs. Corp., 45 AD3d 1232, 1233 [3d Dept 2007]).
Accordingly, the dispositive issue is whether defendant has presented sufficient evidence to show that a triable issue of fact exists as to whether claimant's "conduct was the sole proximate cause of his injuries" (Dowling, 45 AD3d at 1233; see Ball, 36 AD3d at 1189).
In support of its own motion for summary judgment, defendant argues that claimant was a recalcitrant worker whose acts and omissions were the sole proximate cause of his accident. In particular, defendant asserts that claimant could have used a safety harness and retractable lanyard attached to either the rail of the Catskill Bridge, to the existing scaffolding or to the "hangar system" used to support the platform/scaffold. Defendant further suggests that claimant could have worked from a platform (scissor lift) truck under the Catskill Bridge or he could have avoided stepping on the unfinished scaffolding altogether.
The "recalcitrant worker" worker defense requires that defendant show that claimant "had adequate safety devices available; that he knew both that they were available and that he was expected to use them; that he chose for no good reason not to do so; and that had he not made that choice he would not have been injured" (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40 [2004]; see Montgomery v Federal Express Corp., 4 NY3d 805 [2005]; Robinson v East Medical Center, LP, 6 NY3d 550 [2006]; Gallagher v New York Post, 14 NY3d 83 [2010]).
Initially, defendant has failed to establish the elements of a recalcitrant worker defense. The first requirement of the defense, as set forth in Cahill, is that the worker "had adequate safety devices available [and]; that he knew both that they were available and that he was expected to use them" (4 NY3d at 40).
The safety devices identified by defendant in making its argument are: (1) a safety harness which defendant asserts claimant should have worn and tied off to the Catskill Bridge rail or to the scaffold under construction and (2) the scissor lift truck which claimant could have used to work from the elevated height. Each will be considered in turn.
In arguing that claimant should have worn a safety harness tied off to something other than a dedicated safety cable, defendant ignores the safety plan which it required Blast-All to prepare and which defendant, through Civil Engineer Smith and his superiors, read and approved.
The safety plan required that safety harnesses and lanyards be used by workers to prevent falls when working more than six feet off the ground. The safety plan further required that a "safety cable will be installed on all elevated work areas to allow workers to tie off" their safety harnesses and lanyards (emphasis added). The safety plan further directed that the safety cable "will not be used for other purposes, such as supporting scaffolding."
It is undisputed that the safety cables required by the safety plan were not installed. Moreover, the safety plan forbade the use of a safety cable to be simultaneously used "for other purposes, such as supporting scaffolding," as defendant suggests in arguing that claimant should have tied off his safety harness to the existing scaffolding or to the "hangar system" used to support the platform/scaffold.
The safety plan required installation of dedicated safety cables. It did not contemplate tying off safety harnesses to the Catskill Bridge, to a tree or to a rock or to any other object other than the dedicated safety cable, which was not installed as required, in contravention of the defendant-approved safety plan. The deposition testimony of Civil Engineer Smith demonstrates that defendant knew that there were no safety cables installed at the Catskill Bridge prior to the claimant's accident, even though the work was ongoing for a period of time before claimant arrived from the Prattville work site. Before the Catskill Bridge work began, Smith, according to his deposition testimony, spoke with defendant's safety consultant Snyder, about the safety cables. Smith's discussion with Snyder, among others, was that "when they [Blast-All] get set up, they'll put tie lines, so when they're on the edge, they'll be safe."
Similarly, all of these things were apparent, prior to claimant's accident, through the daily inspections by contractor Blast-All's safety manager Internicola.
Next, with respect to the safety harness argument made by defendant, it is plain that claimant would have fallen in any event when the scaffold collapsed, regardless of whether he was wearing a safety harness tied off to the Catskill Bridge rail. The collapse of the safety device, the scaffolding, is itself a violation of Labor Law 240 (1) regardless of whether claimant's injuries would have been lessened by use of the additional safety device of the harness ("where a violation of the statute [240 (1)] has caused injury, any fault by the plaintiff contributing to that injury is irrelevant" [Dahar v Holland Ladder & Mfg. Co., 18 NY3d at 524]).
With respect to the scissor lift truck, the proof is uncontradicted that at the time of claimant's accident it was already in use by claimant's co-workers below the scaffold being constructed. The proof is further undisputed that claimant intended to step on the plank which failed. He testified that he did so to "help them expedite laying out the last three planks on that rung." Claimant testified that he "had been on planks adjacent to it earlier in the evening" and recalled that he stepped from the permanent concrete pier to planks "previously that same evening."
Claimant submitted an affidavit in which he recounts that he was responsible for monitoring and assisting the timely completion of the work and just before the accident noticed that the scaffold installation was "taking longer than expected." He further asserts that:
"[t]here was no need to ask the men working in the boom truck to stop working and descend down to street level and pick me up because I had a perfectly safe scaffold to walk on. If the plank I stepped on was properly balanced and secured, my accident would not have occurred."
Claimant's decision to utilize the scaffold to work from an elevated height, rather than the scissor lift truck, is not proof of a recalcitrant worker.
Defendant also expends great effort arguing that claimant should have taken a different route to the accident site. How claimant arrived at the plank which failed is irrelevant. As set forth above, claimant intended to step upon and work from the plank because he believed it was safe to do so and he had done so in the past and on the night of the accident.
Defendant's various contentions regarding claimant's actions amount, at most, to comparative negligence, which is insufficient to avoid Labor Law § 240 (1) liability (see Williams v Town of Pittstown, 100 AD3d 1250 [3d Dept 2012]; Pearl v Sam Greco Constr., Inc., 31 AD3d 996, 997 [3d Dept 2006], lv denied 11 NY3d 710 [2008]; Gilbert v Albany Med. Ctr., 9 AD3d 643, 644-645 [3d Dept 2004]).
Finally, the Court finds, as a matter of law, that the collapse of the platform/scaffold due to an unbalanced, unsecured plank was a proximate cause of claimant's accident. "As this statutory violation [Labor Law § 240 (1)] was a proximate cause of [claimant's] fall, [claimant's] own actions cannot be the sole proximate cause of his fall" (Morin v Machnick Bldrs., 4 AD3d 668, 670 [3d Dept 2004]).
For all of the foregoing reasons, defendant has failed to prove as a matter of law, and has further failed to raise a triable issue of fact, that claimant's conduct was the sole proximate cause of the accident. Defendant's Labor Law 240 (1) liability is established.
Accordingly, claimants' motion for summary judgment as to defendant's liability on claimants' Labor Law 240 (1) cause of action is granted.
Defendant also moves to dismiss claimants' Labor Law 241 (6) cause of action, again asserting that claimant's conduct was the sole proximate cause of the accident. Labor Law 241 (6) provides as follows:
"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:
6. 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."
Labor Law 241 (6) imposes a nondelegable duty on owners and contractors to "provide reasonable and adequate protection and safety" for covered workers (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 [1993]; Lynch v 99 Washington, LLC, 80 AD3d 977, 978 [3d Dept 2011]).
"In order to state a claim under section 241 (6), a plaintiff must allege that the property owners violated a regulation that sets forth a specific standard of conduct and not simply a recitation of common-law safety principles" (St. Louis v Town of N. Elba, 16 NY3d 411, 414 [2011]; see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 502; Ares v State of New York, 80 NY2d 959, 960 [1992]).
Claimants' Labor Law 241 (6) cause of action here asserts defendant's violation, among other sections, of 12 NYCRR 23-1.16 and 23 NYCRR 23-1.17, respectively.
The sole basis asserted by defendant for dismissal of the Labor Law 241 (6) cause of action is that claimant's conduct was the sole proximate cause of the accident. The Court, in determining claimants' Labor Law 240 (1) summary judgment application, found as a matter of law that the collapse of the platform/scaffold was a proximate cause of the accident. That finding, while not necessarily determining that defendant violated Labor Law 241 (6), negates a finding that claimant's conduct was the sole proximate cause of the accident.
Defendant's motion for summary judgment dismissing claimant's cause of action under Labor Law 241 (6) is, accordingly, denied.
Claimants' motion for summary judgment as to defendant's liability pursuant to Labor Law 240 (1) is granted. Defendant's motion for summary judgment dismissing the claim in its entirety is denied, except that claimants' negligence-based Labor Law 200 cause of action is dismissed based upon claimants' withdrawal of that cause of action.
September 30, 2013
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimants' Notice of Motion, received May 8, 2013;
2. Affirmation of Adam S. Levien, dated May 8, 2013, and annexed exhibits;
3. Defendant's Notice of Motion, received May 14, 2013;
4. Affidavit of Matthew J. Kelly, sworn to May 13, 2013, and annexed exhibits;
5. Affidavit of Perry Snyder, sworn to May 10, 2013;
6. Affidavit of Jeffrey Stoddard, sworn to March 18, 2013;
7. Affidavit of Greg Byram, sworn to April 21, 2013;
8. Affidavit of Dennis Smith, sworn to May 8, 2013;
9. Affirmation of Adam S. Levien in Opposition to Defendant's Summary Judgment Motion, dated June 20, 2013;
9. Affidavit of Greg Intercola, sworn to June 7, 2013;
10. Affidavit of Mark Fabiano, sworn to June 20, 2013;
11. Reply Affirmation of Adam S. Levien, dated June 25, 2013;
12. Reply Affidavit of Matthew J. Kelly, sworn to June 25, 2013, and annexed exhibits;
13. Affidavit of Perry Snyder, sworn to June 25, 2013;
14. Sur-reply Affirmation of Adam S. Levien, dated July 17, 2013, and annexed exhibit;
15. Affidavit of Mark Fabiano, sworn to July 11, 2013;
16. Affidavit of Matthew J. Kelly in Response to Sur-reply, sworn to July 23, 2013;
17. Reply Affirmation of Adam S. Levien, dated July 24, 2013.