Preview
FILED: BRONX COUNTY CLERK 03/25/2022 01:44 PM INDEX NO. 350720/2009E
NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 03/25/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
___________.._________________________________.._____________________Ç
JUSTIN DePROSPO, an infant by his mother and guardian
EILEEN SANTIAGO and EILEEN SANTIAGO, Index #: 350720/2009
individually, (Action # 1)
Plaintiffs,
AFFIRMATION IN
-against- OPPOSITION
MICHELLE NIXON-COCHRAN, GENERAL BAITOA
AUTOMOTIVE WAREHOUSE, INC., BAITOA GENERAL
AUTO EQUIPMENT INC., HECTOR NUNEZ, d/b/a GENERAL
BAITOA EQUIPMENT CO., HECTOR NUNEZ, d/b/a
GENERAL BAITOA AUTO PARTS, EDWARD TURNER,
450 CONCORD AVENUE CORP., d /a GENERAL
BAITOA, and CONCORD AVENUE, LLC,
Defendants.
___.._._________..___________..____________________________Ç
JENNIFER SANTIAGO, as the Administratrix of the Index No. 301290/2010
Estate of RICHARD SANTIAGO, and EILEEN (Action # 2)
SANTIAGO HADDOCK, Individually and as Parent and
Natural Guardian for Minor Children, JEREMIAH RICHARD
SANTIAGO and MATTHEW RICHARD SANTIAGO,
Plaintiffs,
-against-
MICHELLE NIXON-COCHRAN, GENERAL BAITOA
AUTOMOTIVE WAREHOUSE, INC., BAITOA GENERAL
AUTO EQUIPMENT INC., HECTOR NUNEZ, d/b/a
GENERAL BAITOA AUTO EQUIPMENT CO., HECTOR
NUNEZ D/B/A GENERAL BAITOA AUTO PARTS,
Defendants.
_______..________________________________..__________Ç
LAWRENCE CHAIFETZ, an attorney duly licensed to practice law in the State of New York,
subscribing and affirming as true,under penalties of perjury, states as follows:
1 of 9
FILED: BRONX COUNTY CLERK 03/25/2022 01:44 PM INDEX NO. 350720/2009E
NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 03/25/2022
1. I am a member of the law firm of CHAIFETZ & CHAIFETZ LLC, the attorney
for JENNIFER SANTIAGO, as the Administratrix of the Estate of RICHARD SANTIAGO, and
EILEEN SANTIAGO HADDOCK, individually and as parent and natural guardian for minor
children, JEREMIAH RICHARD SANTIAGO and MATTHEW RICHARD SANTIAGO
(collectively, "SANTIAGO PLAINTIFFS").
2. I am fully familiar with allof the facts herein, the source of my knowledge being
the records maintained by this office in the course of the within action.
3. This Affirmation is submitted in opposition to the motion of GENERAL
BAITOA AUTOMOTIVE WAREHOUSE, INC., BAITOA GENERAL AUTO EQUIPMENT,
INC., and 450 CONCORD AVENUE CORP. d/b/a GENERAL BAITOA (hereinafter referred
to collectively as "BAITOA") for an order granting BAITOA summary judgment under CPLR
plaintiffs'
§3212 dismissing complaint and allcross-complaints. This affirmation is also being
submitted in opposition to the cross-motion the defendant MICHELLE NIXON-
untimely by
COCHRAN ("NIXON-COCHRAN") for an order granting her summary judgment on liability
pursuant to CPLR §3212.
4. All exhibits which have been submitted by the defendants in support of their
motions are incorporated by reference herein.
PRELIMINARY STATEMENT
5. This action arises out of a collision which occurred on August 7, 2009 in the
westbound lane of Bruckner Boulevard in the Bronx between a motorcycle driven by RICHARD
SANTIAGO, and NIXON-COCHRAN's double parked vehicle.
2 of 9
FILED: BRONX COUNTY CLERK 03/25/2022 01:44 PM INDEX NO. 350720/2009E
NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 03/25/2022
6. At the time of the collision, NIXON-COCHRAN was delivering auto parts for
BAITOA to a customer of BAITOA's located on Bruckner Boulevard and was sitting inside her
double parked vehicle.
7. RICHARD SANTIAGO's son, JUSTIN DEPROSPO, was a passenger on the
motorcycle.
8. RICHARD SANTIAGO did not survive the collision. JUSTIN DEPROSPO
suffered serious injuries.
9. The SANTIAGO PLAINTIFFS commenced this action to recover damages
arising from RICHARD SANTIAGO's pain, suffering and death, and from the loss of
companionship, society and services experienced by the members of RICHARD SANTIAGO'S
- his EILEEN and his JEREMIAH RICHARD SANTIAGO
family wife, SANTIAGO, children,
and MATTHEW RICHARD SANTIAGO.
10. There are material issues of fact which preclude both summary judgment motions
filed in this action. The evidence in the record raises significant factual issues both as to the
degree to which NIXON-COCHRAN's negligence in double parking her vehicle contributed to
the accident and as to whether BAITOA's input into the method and manner in which NIXON-
COCHRAN performed her job rendered her an employee, as opposed to an independent
contractor, at the time of the accident.
COUNTER STATEMENT OF RELEVANT FACTS
11. On August 7, 2009 a motorcycle driven by RICHARD SANTIAGO collided with
NIXON-COCHRAN's vehicle in the westbound lane of Bruckner Boulevard in the Bronx.
(Police Report, NYSCEF Doc. No. 28).
3 of 9
FILED: BRONX COUNTY CLERK 03/25/2022 01:44 PM INDEX NO. 350720/2009E
NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 03/25/2022
12. NIXON-COCHRAN was double parked at the time of the accident. (NIXON-
COCHRAN Deposition Transcript, NYSCEF Doc. No. 24, 58:15-19, 80: 5-21, Police Report,
NYSCEF Doc. No. 28).
13. NIXON-COCHRAN was in her car making a delivery for her employer,
BAITOA, at the time of the accident. (NIXON-COCHRAN Deposition Transcript, NYSCEF
Doc. No. 24, 22:20-23:17).
. . . . . .
14. NIXON-COCHRAN had been working for BAITOA for four or five months at
the time of the accident as a driver making deliveries of parts to various auto mechanic shops and
dealers. (NIXON-COCHRAN Deposition NYSCEF Doc. No. 12:20-
Transcript, 24, 11:18-21,
25).
15. On the day of the accident, NIXON-COCHRAN's boss gave her specific
instructions to deliver the parts to a gentleman who would be waiting outside, and the gentleman
waved her down as she approached. (NIXON-COCHRAN Deposition Transcript, NYSCEF
Doc. No. 24, 22:20-23:17).
16. NIXON-COCHRAN received medical and indemnity workers compensation
benefits under a policy held by BAITOA for its employees in connection with the accident.
(Affidavit of Senior Claims Specialist of Utica National Insurance Group, NYSCEF Doc. No.
40).
17. NIXON-COCHRAN worked on a fixed schedule set by BAITOA, and she was
expected to work eight hours a six days a through Saturday. (NIXON-
day, week, Monday
COCHRAN Deposition Transcript, NYSCEF Doc. No. 24, 12:5-13, 18: 17-25, 133:6-21).
18. NIXON-COCHRAN's work schedule and the schedules of the other drivers was
set by BAITOA. (NIXON-COCHRAN Deposition Transcript, NYSCEF Doc. No. 24, 12:9-12).
4 of 9
FILED: BRONX COUNTY CLERK 03/25/2022 01:44 PM INDEX NO. 350720/2009E
NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 03/25/2022
19. BAITOA told the drivers they must report to work at 8:30 A.M. and the workday
ended after they had made their last delivery for the day which would usually be between 4:30
and 5:00 P.M. (NIXON-COCHRAN Deposition Transcript, NYSCEF Doc. No. 24, 12:5-12).
20. NIXON-COCHRAN and about fifteen other employees would report to work
every day between 8:15 A.M. and 8:20 A.M and sitin a room waiting to get their delivery
assignments. (NIXON-COCHRAN Deposition Transcript, NYSCEF Doc. No. 24, 18: 17-25, 12:
9-13).
days'
21. NIXON-COCHRAN had to give at least one to two notice if she wanted to
take a day off. (NIXON-COCHRAN Deposition Transcript, NYSCEF Doc. No. 24, 133:6-10).
22. NIXON-COCHRAN received some direction the order of deliveries -
regarding
BAITOA told drivers to make deliveries closest to BAITOA's offices first.(NIXON-
COCHRAN Deposition Transcript, NYSCEF Doc. No. 24, 131:14-20).
23. NIXON-COCHRAN received specific instructions from BAITOA as to how to
make the delivery at issue. (NIXON-COCHRAN Deposition Transcript, NYSCEF Doc. No. 24,
22:20 - 23:16).
24. All the BAITOA employees, including NIXON-COCHRAN, used their own
vehicles to make the deliveries. (NIXON-COCHRAN Deposition Transcript, NYSCEF Doc.
No. 24, 14: 2-10).
25. NIXON-COCHRAN was paid on a weekly basis each Friday either in cash or by
a check bearing the company's name and did not receive a W-2. (NIXON-COCHRAN
Deposition Transcript, NYSCEF Doc. No. 24, 16: 7-11; 84: 6-22).
26. NIXON-COCHRAN entered into an Operator Agreement with BAITOA as a
condition of employment. (NYSCEF Doc. No. 27).
5 of 9
FILED: BRONX COUNTY CLERK 03/25/2022 01:44 PM INDEX NO. 350720/2009E
NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 03/25/2022
ARGUMENT
27. Neither Defendants BAITOA nor NIXON-COCHRAN have tendered sufficient
evidence to conclusively demonstrate the absence of material facts and have not met the heavy
burden of justifying summary judgment as a matter of law. It iswell settled that summary
judgment is a drastic remedy that should be employed only when there is no doubt as to the
absence of triable issues (Aguilar v City of New York, 162 AD3d 601, 601 [1st Dept 2018]).
"[T]he proponent of a summary judgment motion must make a prima facie showing of
entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the
fact"
absence of any material issues of (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986].
28. In the interests of judicial economy, we affirm and will not restate the arguments
set forth in the affirmations in opposition made by counsel for JUSTIN DEPROSPO and
EILEEN SANTIAGO, and by counsel for EDWARD TURNER.
29. There are triable issues of fact as to whether NIXON-COCHRAN was an
independent contractor or employee at the time of the accident: NIXON-COCHRAN received
medical and indemnity workers compensation benefits under a policy held by BAITOA for its
employees in connection with the accident, she worked a daily and weekly schedule set by
"boss"
BAITOA, and she received specific instructions from her regarding the delivery which is
the center of this action.
30. There are also triable issues of fact regarding the extent NIXON-COCHRAN's
double parking contributed to the collision. NIXON-COCHRAN's double parked vehicle was
the proximate cause of the collision and but for her vehicle being double parked the accident
would not have occurred. Notwithstanding the foregoing, NIXON-COCHRAN filed her
6 of 9
FILED: BRONX COUNTY CLERK 03/25/2022 01:44 PM INDEX NO. 350720/2009E
NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 03/25/2022
summary judgment motion outside of the statutory time frames, her motion for summary
judgment is based on grounds distinct from the motion timely filed by BAITOA, and dismissal is
warranted on that basis alone.
31. The motions for summary judgment rely on evidence that is inadmissible. The
deposition transcripts have not been signed by the deponents and no evidence has been submitted
that the deponents have been given an opportunity to review them.
7 of 9
FILED: BRONX COUNTY CLERK 03/25/2022 01:44 PM INDEX NO. 350720/2009E
NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 03/25/2022
CONCLUSION
WHEREFORE, itis respectfully submitted that the defendant BAITOA's motion for
summary judgment and the defendant NIXON-COCHRAN's ross motion for summary
judgment should be denied in their entirety.
Dated: New York, New York
March 25, 2022 L e haifetz, Esq.
8 of 9
FILED: BRONX COUNTY CLERK 03/25/2022 01:44 PM INDEX NO. 350720/2009E
NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 03/25/2022
WORD COUNT VERIFICATION
Pursuant to Uniform Rule §202-8b, I hereby certify that Santiago Plaintiff's affirmation in
opposition dated March 25, 2022 complies with the word count limit. The total number of words
in this affirmation, exclusive of any captions, tables of contents, table of authorities and signature
blocks is 1,325 pursuant to the word count in Microsoft Word, the word processing system used
to prepare this document.
Dated: New York, New York
March 25, 2022
L E C AIFETZ
9 of 9
Preview
FILED: BRONX COUNTY CLERK 03/25/2022 01:44 PM INDEX NO. 350720/2009E NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 03/25/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ___________.._________________________________.._____________________Ç JUSTIN DePROSPO, an infant by his mother and guardian EILEEN SANTIAGO and EILEEN SANTIAGO, Index #: 350720/2009 individually, (Action # 1) Plaintiffs, AFFIRMATION IN -against- OPPOSITION MICHELLE NIXON-COCHRAN, GENERAL BAITOA AUTOMOTIVE WAREHOUSE, INC., BAITOA GENERAL AUTO EQUIPMENT INC., HECTOR NUNEZ, d/b/a GENERAL BAITOA EQUIPMENT CO., HECTOR NUNEZ, d/b/a GENERAL BAITOA AUTO PARTS, EDWARD TURNER, 450 CONCORD AVENUE CORP., d /a GENERAL BAITOA, and CONCORD AVENUE, LLC, Defendants. ___.._._________..___________..____________________________Ç JENNIFER SANTIAGO, as the Administratrix of the Index No. 301290/2010 Estate of RICHARD SANTIAGO, and EILEEN (Action # 2) SANTIAGO HADDOCK, Individually and as Parent and Natural Guardian for Minor Children, JEREMIAH RICHARD SANTIAGO and MATTHEW RICHARD SANTIAGO, Plaintiffs, -against- MICHELLE NIXON-COCHRAN, GENERAL BAITOA AUTOMOTIVE WAREHOUSE, INC., BAITOA GENERAL AUTO EQUIPMENT INC., HECTOR NUNEZ, d/b/a GENERAL BAITOA AUTO EQUIPMENT CO., HECTOR NUNEZ D/B/A GENERAL BAITOA AUTO PARTS, Defendants. _______..________________________________..__________Ç LAWRENCE CHAIFETZ, an attorney duly licensed to practice law in the State of New York, subscribing and affirming as true,under penalties of perjury, states as follows: 1 of 9 FILED: BRONX COUNTY CLERK 03/25/2022 01:44 PM INDEX NO. 350720/2009E NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 03/25/2022 1. I am a member of the law firm of CHAIFETZ & CHAIFETZ LLC, the attorney for JENNIFER SANTIAGO, as the Administratrix of the Estate of RICHARD SANTIAGO, and EILEEN SANTIAGO HADDOCK, individually and as parent and natural guardian for minor children, JEREMIAH RICHARD SANTIAGO and MATTHEW RICHARD SANTIAGO (collectively, "SANTIAGO PLAINTIFFS"). 2. I am fully familiar with allof the facts herein, the source of my knowledge being the records maintained by this office in the course of the within action. 3. This Affirmation is submitted in opposition to the motion of GENERAL BAITOA AUTOMOTIVE WAREHOUSE, INC., BAITOA GENERAL AUTO EQUIPMENT, INC., and 450 CONCORD AVENUE CORP. d/b/a GENERAL BAITOA (hereinafter referred to collectively as "BAITOA") for an order granting BAITOA summary judgment under CPLR plaintiffs' §3212 dismissing complaint and allcross-complaints. This affirmation is also being submitted in opposition to the cross-motion the defendant MICHELLE NIXON- untimely by COCHRAN ("NIXON-COCHRAN") for an order granting her summary judgment on liability pursuant to CPLR §3212. 4. All exhibits which have been submitted by the defendants in support of their motions are incorporated by reference herein. PRELIMINARY STATEMENT 5. This action arises out of a collision which occurred on August 7, 2009 in the westbound lane of Bruckner Boulevard in the Bronx between a motorcycle driven by RICHARD SANTIAGO, and NIXON-COCHRAN's double parked vehicle. 2 of 9 FILED: BRONX COUNTY CLERK 03/25/2022 01:44 PM INDEX NO. 350720/2009E NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 03/25/2022 6. At the time of the collision, NIXON-COCHRAN was delivering auto parts for BAITOA to a customer of BAITOA's located on Bruckner Boulevard and was sitting inside her double parked vehicle. 7. RICHARD SANTIAGO's son, JUSTIN DEPROSPO, was a passenger on the motorcycle. 8. RICHARD SANTIAGO did not survive the collision. JUSTIN DEPROSPO suffered serious injuries. 9. The SANTIAGO PLAINTIFFS commenced this action to recover damages arising from RICHARD SANTIAGO's pain, suffering and death, and from the loss of companionship, society and services experienced by the members of RICHARD SANTIAGO'S - his EILEEN and his JEREMIAH RICHARD SANTIAGO family wife, SANTIAGO, children, and MATTHEW RICHARD SANTIAGO. 10. There are material issues of fact which preclude both summary judgment motions filed in this action. The evidence in the record raises significant factual issues both as to the degree to which NIXON-COCHRAN's negligence in double parking her vehicle contributed to the accident and as to whether BAITOA's input into the method and manner in which NIXON- COCHRAN performed her job rendered her an employee, as opposed to an independent contractor, at the time of the accident. COUNTER STATEMENT OF RELEVANT FACTS 11. On August 7, 2009 a motorcycle driven by RICHARD SANTIAGO collided with NIXON-COCHRAN's vehicle in the westbound lane of Bruckner Boulevard in the Bronx. (Police Report, NYSCEF Doc. No. 28). 3 of 9 FILED: BRONX COUNTY CLERK 03/25/2022 01:44 PM INDEX NO. 350720/2009E NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 03/25/2022 12. NIXON-COCHRAN was double parked at the time of the accident. (NIXON- COCHRAN Deposition Transcript, NYSCEF Doc. No. 24, 58:15-19, 80: 5-21, Police Report, NYSCEF Doc. No. 28). 13. NIXON-COCHRAN was in her car making a delivery for her employer, BAITOA, at the time of the accident. (NIXON-COCHRAN Deposition Transcript, NYSCEF Doc. No. 24, 22:20-23:17). . . . . . . 14. NIXON-COCHRAN had been working for BAITOA for four or five months at the time of the accident as a driver making deliveries of parts to various auto mechanic shops and dealers. (NIXON-COCHRAN Deposition NYSCEF Doc. No. 12:20- Transcript, 24, 11:18-21, 25). 15. On the day of the accident, NIXON-COCHRAN's boss gave her specific instructions to deliver the parts to a gentleman who would be waiting outside, and the gentleman waved her down as she approached. (NIXON-COCHRAN Deposition Transcript, NYSCEF Doc. No. 24, 22:20-23:17). 16. NIXON-COCHRAN received medical and indemnity workers compensation benefits under a policy held by BAITOA for its employees in connection with the accident. (Affidavit of Senior Claims Specialist of Utica National Insurance Group, NYSCEF Doc. No. 40). 17. NIXON-COCHRAN worked on a fixed schedule set by BAITOA, and she was expected to work eight hours a six days a through Saturday. (NIXON- day, week, Monday COCHRAN Deposition Transcript, NYSCEF Doc. No. 24, 12:5-13, 18: 17-25, 133:6-21). 18. NIXON-COCHRAN's work schedule and the schedules of the other drivers was set by BAITOA. (NIXON-COCHRAN Deposition Transcript, NYSCEF Doc. No. 24, 12:9-12). 4 of 9 FILED: BRONX COUNTY CLERK 03/25/2022 01:44 PM INDEX NO. 350720/2009E NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 03/25/2022 19. BAITOA told the drivers they must report to work at 8:30 A.M. and the workday ended after they had made their last delivery for the day which would usually be between 4:30 and 5:00 P.M. (NIXON-COCHRAN Deposition Transcript, NYSCEF Doc. No. 24, 12:5-12). 20. NIXON-COCHRAN and about fifteen other employees would report to work every day between 8:15 A.M. and 8:20 A.M and sitin a room waiting to get their delivery assignments. (NIXON-COCHRAN Deposition Transcript, NYSCEF Doc. No. 24, 18: 17-25, 12: 9-13). days' 21. NIXON-COCHRAN had to give at least one to two notice if she wanted to take a day off. (NIXON-COCHRAN Deposition Transcript, NYSCEF Doc. No. 24, 133:6-10). 22. NIXON-COCHRAN received some direction the order of deliveries - regarding BAITOA told drivers to make deliveries closest to BAITOA's offices first.(NIXON- COCHRAN Deposition Transcript, NYSCEF Doc. No. 24, 131:14-20). 23. NIXON-COCHRAN received specific instructions from BAITOA as to how to make the delivery at issue. (NIXON-COCHRAN Deposition Transcript, NYSCEF Doc. No. 24, 22:20 - 23:16). 24. All the BAITOA employees, including NIXON-COCHRAN, used their own vehicles to make the deliveries. (NIXON-COCHRAN Deposition Transcript, NYSCEF Doc. No. 24, 14: 2-10). 25. NIXON-COCHRAN was paid on a weekly basis each Friday either in cash or by a check bearing the company's name and did not receive a W-2. (NIXON-COCHRAN Deposition Transcript, NYSCEF Doc. No. 24, 16: 7-11; 84: 6-22). 26. NIXON-COCHRAN entered into an Operator Agreement with BAITOA as a condition of employment. (NYSCEF Doc. No. 27). 5 of 9 FILED: BRONX COUNTY CLERK 03/25/2022 01:44 PM INDEX NO. 350720/2009E NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 03/25/2022 ARGUMENT 27. Neither Defendants BAITOA nor NIXON-COCHRAN have tendered sufficient evidence to conclusively demonstrate the absence of material facts and have not met the heavy burden of justifying summary judgment as a matter of law. It iswell settled that summary judgment is a drastic remedy that should be employed only when there is no doubt as to the absence of triable issues (Aguilar v City of New York, 162 AD3d 601, 601 [1st Dept 2018]). "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the fact" absence of any material issues of (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]. 28. In the interests of judicial economy, we affirm and will not restate the arguments set forth in the affirmations in opposition made by counsel for JUSTIN DEPROSPO and EILEEN SANTIAGO, and by counsel for EDWARD TURNER. 29. There are triable issues of fact as to whether NIXON-COCHRAN was an independent contractor or employee at the time of the accident: NIXON-COCHRAN received medical and indemnity workers compensation benefits under a policy held by BAITOA for its employees in connection with the accident, she worked a daily and weekly schedule set by "boss" BAITOA, and she received specific instructions from her regarding the delivery which is the center of this action. 30. There are also triable issues of fact regarding the extent NIXON-COCHRAN's double parking contributed to the collision. NIXON-COCHRAN's double parked vehicle was the proximate cause of the collision and but for her vehicle being double parked the accident would not have occurred. Notwithstanding the foregoing, NIXON-COCHRAN filed her 6 of 9 FILED: BRONX COUNTY CLERK 03/25/2022 01:44 PM INDEX NO. 350720/2009E NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 03/25/2022 summary judgment motion outside of the statutory time frames, her motion for summary judgment is based on grounds distinct from the motion timely filed by BAITOA, and dismissal is warranted on that basis alone. 31. The motions for summary judgment rely on evidence that is inadmissible. The deposition transcripts have not been signed by the deponents and no evidence has been submitted that the deponents have been given an opportunity to review them. 7 of 9 FILED: BRONX COUNTY CLERK 03/25/2022 01:44 PM INDEX NO. 350720/2009E NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 03/25/2022 CONCLUSION WHEREFORE, itis respectfully submitted that the defendant BAITOA's motion for summary judgment and the defendant NIXON-COCHRAN's ross motion for summary judgment should be denied in their entirety. Dated: New York, New York March 25, 2022 L e haifetz, Esq. 8 of 9 FILED: BRONX COUNTY CLERK 03/25/2022 01:44 PM INDEX NO. 350720/2009E NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 03/25/2022 WORD COUNT VERIFICATION Pursuant to Uniform Rule §202-8b, I hereby certify that Santiago Plaintiff's affirmation in opposition dated March 25, 2022 complies with the word count limit. The total number of words in this affirmation, exclusive of any captions, tables of contents, table of authorities and signature blocks is 1,325 pursuant to the word count in Microsoft Word, the word processing system used to prepare this document. Dated: New York, New York March 25, 2022 L E C AIFETZ 9 of 9