Preview
FILED: BRONX COUNTY CLERK 08/11/2020 02:27 PM INDEX NO. 300531/2017E
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/11/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
INDEX NO. 300531/2017
ALBERTO ALMANZAR,
Plaintiff,
ORDER WITH NOTICE
-against- OF ENTRY
1970 UNIVERSITY, LLC,
Defendant.
SIRS:
PLEASE TAKE A NOTICE, that the within is a true copy of an Order dated June 8, 2020,
and duly entered in the office of the Clerk on June 17, 2020.
Dated: Brooklyn, New York
July 20, 2020
Yours etc.,
By: Brian M. King, Esq.
BRIAN M. KING LAW OFFICE, PLLC
By: Brian M. King
Attorneys for Plaintiff
ALBERTO ALMANZAR
1400 Avenue Z, Suite 503
Brooklyn, New York 11235
(718) 942-5100
To:
WHITE & McSPEDON, P.C.
Attorney(s) for Defendant(s)
1970 UNIVERSITY, LLC
875 Avenue of the Americas, Suite 800
New York, NY 10001
(212) 564-6633
FILED: BRONX COUNTY CLERK 08/11/2020 02:27 PM INDEX NO. 300531/2017E
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/11/2020
30D$31/20
t7Ghort
Fom10rder
deled. DECISION
6I6t2020. / 0RDER
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Pson
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX, PART 4
----------------------------------------------X .
ALBERTO ALMANZAR Index M. 30053 /2017
-against- Hon. HOWARD H. SHERMAN
1970 UNIVERSITY, LLC. Justice Supreme Court
..--.._. --.......-----._.._.--........-...........-X
The failcwinj;papers numbered 1 to were read on thismotion (Seq. No. )
for noticed on .
Noticeof Motion - Orderto Show Cause - Exhibits
and AffidavitsAnnexed No(s).
Answering Affidavitand Exhibits No(s).
Replying Affidavitand Exhibits No(s).
MOTION IS DECIDED IN ACCORDANCE WITH THE ANNEXED
MEMORANDUM DECISION.
,; This constitutes the decision and order Of the court.
Î Dated: June 8 2020 Hon.
Î
2 Q HOWARD H. SHERMAN, J.S.C.
1. CHECK ONE.......... o
.............CASE DISPOSED IN ITS ENTIRETY o CASE STILL ACTIVE
2. MOTION a GRANTED O DENIED
IS.............................................. O GRANTED IN PART O OTHER
3. CHECK O SETTLE
IF APPROPRIATE..................... ORDER a SUBMIT ORDER O SCHEDULE APPEARANCE
D FIDUC1ARY APPOINTMENT O REFEREE APPOINTMENT
FILED: BRONX COUNTY CLERK 08/11/2020 02:27 PM INDEX NO. 300531/2017E
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/11/2020
300531/2017
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Fom1 dalect
Order Bn/2020.DECis(ONIOR
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.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX: PART
___.............._.-...-...-.-....__.--.---.....-X
Alberto Almanzar,
DECISION and ORDER
Plaintiff, Index No. 300531/l7
-against-
1970 University, Lic.,
Defendant.
-...__.._....-._....__..._.....__..............----X
Defendant 1970 University, Lic.,(hereinaficrUniversity) moves forsummary judgment to
dismiss plaintiff'scomplaint, coñteñding that it cannotbe held liableforplaintifPs injurybecause
the stepwas open and obvious and not inherently dangereas. Plaintiffsubmits opposition papers.
'Ihisisan actionforpersonal injuriessustained by the plaintiff
on January 23, 2017, ina
tripand fallaccident on a single step locatedinthe walkway of defendant'spremiscs which leads
to thepublic sidewalk. The walkway ends at a singlestep riserthatsteps down to thesidewalk.
Plaintiffclaims the stepwas defectivelydesigned, constructed, and me!±!ned in violationof the
New York City Building Codes. He claims that"when I went tolower my leftfoot,I thought that
air."
the space was low and I ended up in the He thought thatthe height between the walkway ad
the publicsidewalk was lower that itwas. The plaintiffwas able to successfully ascend the step
minutes before the accident.There was no snow or ice on the step,and he was able to see the
sidewalk.
In support of the motion, defendant University submits a copy of the pleadings,
photographs depicting the subjectstep,the deposition transcriptsof theplaintiffand defendant's
witness Issaka Maiguzo (Maiguzo) and the affidavit of itsexpert engineer JeffreyJ. Schwalje
(Schwalje). Defendant University points to itspropertymanager Maiguzo's deposition testimañy
d 6/\S'2010
Pdnea
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NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/11/2020
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2017
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who testifiedthat there is no priorcomplaints or injuries the at issue and no
coñeerñing step
modi ficationor repairshave been done tothe or step. Defendant alsopoints to its
expert
walkway
engineer Schwalje who statedthatthe building was constructed in 1912 and that there isa front
walkway constructed between the entrance door of the building and the public sidewalk. The
walkway ends at a singleriserstep down to thepublic sidewalk and the singlerisermeasures 10
inches in height. He opines thatthe single riserat the end of the "was
walkway properly
maintained in a safecondition and did not violateany City of New York or State ofNew York
laws the 1968 New ."
codes, regulations or including York City Building Code. . 1-le states
that
thehigh riserwas clearly visibleand should have been safel
y negotiated.
The proponent of a motionforsunun.,y judgment must tender sufficientevidence toshow
the absence of any material issues offact and the rightto judgment as a matterof law. Alvarez v
Prospect Hospital. 68 NY2d 320 (1986) and Winegrad v New York UniversityMedical Center. 64
NY2d 851 (1985). Summary judg=r.t is a drastic
remedy thatdeprives a litigant
of hisor herday
inCourt. Therefore, the partyappasing a motion forsummary judgment is entitled
to allfavorable
inferencesthat can be drawn from the evidcace submiWd and the papers will be scrutinizedina
lightmost favorable to non-moving party.See, Assaf v Ropog Cab Corp. 253 AD2d 520 (1stDept,
1989).
A defendant who moves forsummary judgment in aslipand fallcase must establish,prima
facie,thatitmaintained the premises ina reasonable safe condition and did not have noticeof,or
create,a dangerous condition thatposed a foreseeable riskof injurytopersons expected to be on
the premises (Villano v Strathmore Terrace Homeowners Assn., inc,76 AD3d 1061 [2d Dept
2010]). Further,an owner or passessorof realproperty is notan insurerofthe safetyof the people
on its (Nallan v Helmsley-Spear. Inc., 50 NY2d 507 [1980]: Donohue v Seaman's
property
Nf6202D
Pt.nt,d
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NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/11/2020
30D521f
2017
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Form
Order
dated.5/8t2020,OECIsloN/
ORDER fasd
DATED:8tgr2020
6titr2020
Page
4of6
Furniture Corp., 270 AD2d 45I [2d Dept 2001]).A property owner has no to protect
or warn
duty
against an open or obvicus condition that isinherent or incidental to the natureof the property,
thatcould be reasonably anticipatedby those usingit and is "readily
observable the use ofone's
by
senses"
(Neiderbach v 7-Eleven, Inc.,56 AD3d 632, [2d Dept 2008)). Based upon the foregoing
deposition testimonies and the affidavitof itsexpert engineer Schwalje, defendant University
established itsprima facie entitlement to judgment as a matter of law thatthe subject was
step
maintained in a reasenable safe condition and itdid not have notice of, orcreate, a dangerous
conditiesthatposed a foreseeable riskof injury to persons,
It is well settled that issue finding, not issue detcrmination, is the key to summary
judg-,c;;:.See. Rose vDa Ecib USA. 259 AD2d 258 (1stDept., 1999). Summary judgment wili
be granted ifthere are no material,triableissues offact. See,Sillman v Twsñ:|cth Centurv-
only
Fox Film Corp. 3 NY2d 395 (1957). Whether a condition is open and obvious cannot be separated
from the surreüñding circumstances. A condition thatisordinarily apparent to a person making
reascñable use ofhis senses may be rendered a trapforthe unwary where the conditionis abscured,
or the plaintiff is distracted,(Stoppeli v Yacenda, 78 AD3d 8I5, 816 [2d Dept., 2010)). A
"hazardous condition to be open and obvious is notfatal
to a plaintiffs
negligence claim,but rather
is relevant to plaintiffs comparative fault, and hence summary judgment dismissal is not
appropriate" 85 AD3d 89 [1stDept 2011]),
(Saretsky v 85 Kenmare Realty Corp.,
Plaintiffin opposition has set forthan issue of factthat requires the denialof summary
Plaintiffsubmits the report of William macul*aar who states
judgcmcat. Marletta,Ph.D., safety
thathe inspected and measured the subjectstep and noted thatriserheightof 10 inches to11 ¾ of
an inch high inclearviolation of the codes including the 1968 buildingcode. Dr.Marletta
building
FILED: BRONX COUNTY CLERK 08/11/2020 02:27 PM INDEX NO. 300531/2017E
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/11/2020
300531/2017
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/ ORDER
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found thatthe high riseris hazardous topedestrian users and such designdeparts from thebuild!ñg
codes and good and accepted safe practice.
Here, we have directlyconflictingopinions of two expertsabout whether the highriserwas
a hazard.'Ihe courtmust not determine issuesof credibilityon a motion for summary judgment.
(S.J.Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 341 [1974].) "The weight to be afforded
jury."
ce=aictin::isstiñway of experts is a matter
peculiarly within the provinceof the (Heberer v
Nassau Hosp., I 19AD2d 729, 730 [2d Dept 1986].) The conflictingqhions of these expents
preclude a grant of summary judgment. ( Friedman v BHL Realty Corp., 83 AD3d 510 [lst Dept.
201 1]; Erdogan v Toothsavers Dental Servs.,P.C, 57 AD3d 314, 315-316 [1stDept 2008]; accord
Haas v F.F. Thompson Hosp., Inc., 86 AD3d 913, 914 [4th Dept 201 1] [finding conflicting
epiniess of experts createcredibility issuesinvolved inevaluating theiropinions and raise issues
thatcannot be decided on a motion for sümmary judgmañt] ; Abato v Millar El. Serv. Co., 261
AD2d 873, 874 [4th Dept 1999] ["conflictingexperts opinions should not be rcss:ved on a motion
forsummary judgment"]; Gold v Cityof New York. 42 Misc 3d 1209 [A],2014 NY SlipOp 50014
[U], 5 [Sup Ct, NY County 2014] [conflicting views of experts regarding whether defect in
side=e!k is trivialprecludes summary judgment).) Furthcrmore, this court is unparsuaded by
defendant's counsel contention thatplaintiff's
expert reportlacksspecificity and thathis references
to bui!dingcodes violationsafter 1912 were inapplicable. Defendant's own expert'saffidavitlacks
specificityto buildingcodes and even relieson building codes that were promulgated after 1912.
Accordingly, defendant's motion forsummary judgment is denied.
Defendant University isto serve a copy of thisDecision and Order with notice of entry
upon the plaintiff.
FILED: BRONX COUNTY CLERK 08/11/2020 02:27 PM INDEX NO. 300531/2017E
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/11/2020
300S31I2017
Short
Form dated:
order DECistoN
BfBG020, /DRDER
DATED.W8t2020
N17/2020
Ided 6ofa
page
Bis constitutesthe decision and order of theCourt.
Dated: Bronx, New York
June 8 2020
HON. Howard H. Shennan
Justice.Supreme Court
ted6'Ia2020
Prin
FILED: BRONX COUNTY CLERK 08/11/2020 02:27 PM INDEX NO. 300531/2017E
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/11/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
INDEX NO. 300531/2017
ALBERTO ALMANZAR,
Plaintiff,
AFFIRMATION OF
-against- MAIL SERVICE
1970 UNIVERSITY, LLC,
Defendant.
STATE OF NEW YORK)
) ss.:
COUNTY OF KINGS )
Brian M. King, an attorney duly adrnitted to practice law in the Courts of the State of New
York, hereby affirms the truth of the following statements:
I am the principal of the BRIAN M. KING LAW OFFICE, PLLC, attorneys for
plaintiff ALBERTO ALMANZAR in the above-captioned action.
20th
On day of July, 2020. I served the within OR DER WITH NOTICE OF ENTRY
by depositing true copies thereof, enclosed in a post-paid wrapper, in an official depository
under the exclusive care and custody of the United States Postal Service within New York
State, addressed to the following at the last known address set forth below:
WHITE & MCSPEDON, P.C.
875 Avenue of the Americas, Suite 800
New York, New York I0001
Brian M. King
2
Preview
FILED: BRONX COUNTY CLERK 08/11/2020 02:27 PM INDEX NO. 300531/2017E NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/11/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX INDEX NO. 300531/2017 ALBERTO ALMANZAR, Plaintiff, ORDER WITH NOTICE -against- OF ENTRY 1970 UNIVERSITY, LLC, Defendant. SIRS: PLEASE TAKE A NOTICE, that the within is a true copy of an Order dated June 8, 2020, and duly entered in the office of the Clerk on June 17, 2020. Dated: Brooklyn, New York July 20, 2020 Yours etc., By: Brian M. King, Esq. BRIAN M. KING LAW OFFICE, PLLC By: Brian M. King Attorneys for Plaintiff ALBERTO ALMANZAR 1400 Avenue Z, Suite 503 Brooklyn, New York 11235 (718) 942-5100 To: WHITE & McSPEDON, P.C. Attorney(s) for Defendant(s) 1970 UNIVERSITY, LLC 875 Avenue of the Americas, Suite 800 New York, NY 10001 (212) 564-6633 FILED: BRONX COUNTY CLERK 08/11/2020 02:27 PM INDEX NO. 300531/2017E NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/11/2020 30D$31/20 t7Ghort Fom10rder deled. DECISION 6I6t2020. / 0RDER Q4TED: 6tnt2020 ñ\ed O/11/2O20 1of6 Pson SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX, PART 4 ----------------------------------------------X . ALBERTO ALMANZAR Index M. 30053 /2017 -against- Hon. HOWARD H. SHERMAN 1970 UNIVERSITY, LLC. Justice Supreme Court ..--.._. --.......-----._.._.--........-...........-X The failcwinj;papers numbered 1 to were read on thismotion (Seq. No. ) for noticed on . Noticeof Motion - Orderto Show Cause - Exhibits and AffidavitsAnnexed No(s). Answering Affidavitand Exhibits No(s). Replying Affidavitand Exhibits No(s). MOTION IS DECIDED IN ACCORDANCE WITH THE ANNEXED MEMORANDUM DECISION. ,; This constitutes the decision and order Of the court. Î Dated: June 8 2020 Hon. Î 2 Q HOWARD H. SHERMAN, J.S.C. 1. CHECK ONE.......... o .............CASE DISPOSED IN ITS ENTIRETY o CASE STILL ACTIVE 2. MOTION a GRANTED O DENIED IS.............................................. O GRANTED IN PART O OTHER 3. CHECK O SETTLE IF APPROPRIATE..................... ORDER a SUBMIT ORDER O SCHEDULE APPEARANCE D FIDUC1ARY APPOINTMENT O REFEREE APPOINTMENT FILED: BRONX COUNTY CLERK 08/11/2020 02:27 PM INDEX NO. 300531/2017E NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/11/2020 300531/2017 Short Fom1 dalect Order Bn/2020.DECis(ONIOR DER DATED: 8/6/2020 hied 6/17/2020 Page 2of6 . SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX: PART ___.............._.-...-...-.-....__.--.---.....-X Alberto Almanzar, DECISION and ORDER Plaintiff, Index No. 300531/l7 -against- 1970 University, Lic., Defendant. -...__.._....-._....__..._.....__..............----X Defendant 1970 University, Lic.,(hereinaficrUniversity) moves forsummary judgment to dismiss plaintiff'scomplaint, coñteñding that it cannotbe held liableforplaintifPs injurybecause the stepwas open and obvious and not inherently dangereas. Plaintiffsubmits opposition papers. 'Ihisisan actionforpersonal injuriessustained by the plaintiff on January 23, 2017, ina tripand fallaccident on a single step locatedinthe walkway of defendant'spremiscs which leads to thepublic sidewalk. The walkway ends at a singlestep riserthatsteps down to thesidewalk. Plaintiffclaims the stepwas defectivelydesigned, constructed, and me!±!ned in violationof the New York City Building Codes. He claims that"when I went tolower my leftfoot,I thought that air." the space was low and I ended up in the He thought thatthe height between the walkway ad the publicsidewalk was lower that itwas. The plaintiffwas able to successfully ascend the step minutes before the accident.There was no snow or ice on the step,and he was able to see the sidewalk. In support of the motion, defendant University submits a copy of the pleadings, photographs depicting the subjectstep,the deposition transcriptsof theplaintiffand defendant's witness Issaka Maiguzo (Maiguzo) and the affidavit of itsexpert engineer JeffreyJ. Schwalje (Schwalje). Defendant University points to itspropertymanager Maiguzo's deposition testimañy d 6/\S'2010 Pdnea FILED: BRONX COUNTY CLERK 08/11/2020 02:27 PM INDEX NO. 300531/2017E NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/11/2020 300531 2017 Short Form Order dated, I OR DECElON 8/A/2020, DERQATED6/A/2020 Ned6/l7t2020 3of6 Page . who testifiedthat there is no priorcomplaints or injuries the at issue and no coñeerñing step modi ficationor repairshave been done tothe or step. Defendant alsopoints to its expert walkway engineer Schwalje who statedthatthe building was constructed in 1912 and that there isa front walkway constructed between the entrance door of the building and the public sidewalk. The walkway ends at a singleriserstep down to thepublic sidewalk and the singlerisermeasures 10 inches in height. He opines thatthe single riserat the end of the "was walkway properly maintained in a safecondition and did not violateany City of New York or State ofNew York laws the 1968 New ." codes, regulations or including York City Building Code. . 1-le states that thehigh riserwas clearly visibleand should have been safel y negotiated. The proponent of a motionforsunun.,y judgment must tender sufficientevidence toshow the absence of any material issues offact and the rightto judgment as a matterof law. Alvarez v Prospect Hospital. 68 NY2d 320 (1986) and Winegrad v New York UniversityMedical Center. 64 NY2d 851 (1985). Summary judg=r.t is a drastic remedy thatdeprives a litigant of hisor herday inCourt. Therefore, the partyappasing a motion forsummary judgment is entitled to allfavorable inferencesthat can be drawn from the evidcace submiWd and the papers will be scrutinizedina lightmost favorable to non-moving party.See, Assaf v Ropog Cab Corp. 253 AD2d 520 (1stDept, 1989). A defendant who moves forsummary judgment in aslipand fallcase must establish,prima facie,thatitmaintained the premises ina reasonable safe condition and did not have noticeof,or create,a dangerous condition thatposed a foreseeable riskof injurytopersons expected to be on the premises (Villano v Strathmore Terrace Homeowners Assn., inc,76 AD3d 1061 [2d Dept 2010]). Further,an owner or passessorof realproperty is notan insurerofthe safetyof the people on its (Nallan v Helmsley-Spear. Inc., 50 NY2d 507 [1980]: Donohue v Seaman's property Nf6202D Pt.nt,d FILED: BRONX COUNTY CLERK 08/11/2020 02:27 PM INDEX NO. 300531/2017E NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/11/2020 30D521f 2017 Short Form Order dated.5/8t2020,OECIsloN/ ORDER fasd DATED:8tgr2020 6titr2020 Page 4of6 Furniture Corp., 270 AD2d 45I [2d Dept 2001]).A property owner has no to protect or warn duty against an open or obvicus condition that isinherent or incidental to the natureof the property, thatcould be reasonably anticipatedby those usingit and is "readily observable the use ofone's by senses" (Neiderbach v 7-Eleven, Inc.,56 AD3d 632, [2d Dept 2008)). Based upon the foregoing deposition testimonies and the affidavitof itsexpert engineer Schwalje, defendant University established itsprima facie entitlement to judgment as a matter of law thatthe subject was step maintained in a reasenable safe condition and itdid not have notice of, orcreate, a dangerous conditiesthatposed a foreseeable riskof injury to persons, It is well settled that issue finding, not issue detcrmination, is the key to summary judg-,c;;:.See. Rose vDa Ecib USA. 259 AD2d 258 (1stDept., 1999). Summary judgment wili be granted ifthere are no material,triableissues offact. See,Sillman v Twsñ:|cth Centurv- only Fox Film Corp. 3 NY2d 395 (1957). Whether a condition is open and obvious cannot be separated from the surreüñding circumstances. A condition thatisordinarily apparent to a person making reascñable use ofhis senses may be rendered a trapforthe unwary where the conditionis abscured, or the plaintiff is distracted,(Stoppeli v Yacenda, 78 AD3d 8I5, 816 [2d Dept., 2010)). A "hazardous condition to be open and obvious is notfatal to a plaintiffs negligence claim,but rather is relevant to plaintiffs comparative fault, and hence summary judgment dismissal is not appropriate" 85 AD3d 89 [1stDept 2011]), (Saretsky v 85 Kenmare Realty Corp., Plaintiffin opposition has set forthan issue of factthat requires the denialof summary Plaintiffsubmits the report of William macul*aar who states judgcmcat. Marletta,Ph.D., safety thathe inspected and measured the subjectstep and noted thatriserheightof 10 inches to11 ¾ of an inch high inclearviolation of the codes including the 1968 buildingcode. Dr.Marletta building FILED: BRONX COUNTY CLERK 08/11/2020 02:27 PM INDEX NO. 300531/2017E NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/11/2020 300531/2017 Shorl Fom)Order DECIBION / ORDER deled;6/e/2020, DATED: 6tlV202D fledB/17/2020 Page 5ofB found thatthe high riseris hazardous topedestrian users and such designdeparts from thebuild!ñg codes and good and accepted safe practice. Here, we have directlyconflictingopinions of two expertsabout whether the highriserwas a hazard.'Ihe courtmust not determine issuesof credibilityon a motion for summary judgment. (S.J.Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 341 [1974].) "The weight to be afforded jury." ce=aictin::isstiñway of experts is a matter peculiarly within the provinceof the (Heberer v Nassau Hosp., I 19AD2d 729, 730 [2d Dept 1986].) The conflictingqhions of these expents preclude a grant of summary judgment. ( Friedman v BHL Realty Corp., 83 AD3d 510 [lst Dept. 201 1]; Erdogan v Toothsavers Dental Servs.,P.C, 57 AD3d 314, 315-316 [1stDept 2008]; accord Haas v F.F. Thompson Hosp., Inc., 86 AD3d 913, 914 [4th Dept 201 1] [finding conflicting epiniess of experts createcredibility issuesinvolved inevaluating theiropinions and raise issues thatcannot be decided on a motion for sümmary judgmañt] ; Abato v Millar El. Serv. Co., 261 AD2d 873, 874 [4th Dept 1999] ["conflictingexperts opinions should not be rcss:ved on a motion forsummary judgment"]; Gold v Cityof New York. 42 Misc 3d 1209 [A],2014 NY SlipOp 50014 [U], 5 [Sup Ct, NY County 2014] [conflicting views of experts regarding whether defect in side=e!k is trivialprecludes summary judgment).) Furthcrmore, this court is unparsuaded by defendant's counsel contention thatplaintiff's expert reportlacksspecificity and thathis references to bui!dingcodes violationsafter 1912 were inapplicable. Defendant's own expert'saffidavitlacks specificityto buildingcodes and even relieson building codes that were promulgated after 1912. Accordingly, defendant's motion forsummary judgment is denied. Defendant University isto serve a copy of thisDecision and Order with notice of entry upon the plaintiff. FILED: BRONX COUNTY CLERK 08/11/2020 02:27 PM INDEX NO. 300531/2017E NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/11/2020 300S31I2017 Short Form dated: order DECistoN BfBG020, /DRDER DATED.W8t2020 N17/2020 Ided 6ofa page Bis constitutesthe decision and order of theCourt. Dated: Bronx, New York June 8 2020 HON. Howard H. Shennan Justice.Supreme Court ted6'Ia2020 Prin FILED: BRONX COUNTY CLERK 08/11/2020 02:27 PM INDEX NO. 300531/2017E NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/11/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX INDEX NO. 300531/2017 ALBERTO ALMANZAR, Plaintiff, AFFIRMATION OF -against- MAIL SERVICE 1970 UNIVERSITY, LLC, Defendant. STATE OF NEW YORK) ) ss.: COUNTY OF KINGS ) Brian M. King, an attorney duly adrnitted to practice law in the Courts of the State of New York, hereby affirms the truth of the following statements: I am the principal of the BRIAN M. KING LAW OFFICE, PLLC, attorneys for plaintiff ALBERTO ALMANZAR in the above-captioned action. 20th On day of July, 2020. I served the within OR DER WITH NOTICE OF ENTRY by depositing true copies thereof, enclosed in a post-paid wrapper, in an official depository under the exclusive care and custody of the United States Postal Service within New York State, addressed to the following at the last known address set forth below: WHITE & MCSPEDON, P.C. 875 Avenue of the Americas, Suite 800 New York, New York I0001 Brian M. King 2