Preview
FILED: NEW YORK COUNTY CLERK 10/08/2018 09:01 PM INDEX NO. 162502/2015
NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/08/2018
PROCEEDINGS 1455
1 MR. FODEMAN: Thank you, Judge.
2 DIRECT EXAMINATION OF MR. COSBAN
3 BY MR. FODEMAN
4 Q: Mr. Cosban, good morning.
5 A: Good morning.
6 Q: What do you do for a living?
7 A: I'm a crane operator.
8 Q: And just make sure that mic is close enough so we can
9 all hear. Great. How long have you been a crane operator, sir?
10 A: Thirty years.
11 Q: Were you operating a mobile crane in the vicinity of 261
12 Madison Avenue on May 31, 2015?
13 A: Yes, I was.
14 Q: I'm going to talk to you, obviously, about that
15 incident, but before we get there, I want to talk to you a little
16 bit about your background --
17 A: Okay.
18 Q: -- experience. Alright?
19 A: Yes.
20 Q: How old are you, sir?
21 A: Fifty.
22 Q: And how was it that you came to become a crane operator?
23 A: Through my family. My family, uncles, and cousins are
24 all crane operators.
25 Q: Do you hold any licenses or certifications?
Geneva Worldwide, Inc.
256 W 38 t h Street, 10 t h Floor, New York, NY 10018
SFM 007775
FILED: NEW YORK COUNTY CLERK 10/08/2018 09:01 PM INDEX NO. 162502/2015
NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/08/2018
COSBAN - DIRECT - FODEMAN 1456
1 A: Yes. Numerous.
2 Q: Can you just tell us some of the licenses and
3 certifications that you currently hold?
4 A: Yes. I have a, a Class B unlimited license from New
5 York City. I have --
6 Q: Is that a crane operator's license?
7 A: Yes, it is. I have NCCO, all six certifications. I've
8 a state license, New York State crane license unlimited, and OSHA
9 40, 40 hour OSHA card also.
10 Q: Okay. I'm going to sh-, you might have the exhibits in
11 front of you, but do you have Respondent's Exhibit 69 in front of
12 you?
13 A: This one. The licensing?
14 Q: Yes. Is Respondent's 69 a copy of your current
15 licenses?
16 A: Yes, it is.
17 MR. FODEMAN: Your Honor, at this time, I'd offer
18 Respondent's 69 into evidence.
19 ALJ GARCIA: Any objections?
20 MS. PENA: No objections.
21 ALJ GARCIA: Without objection, Respondent's 69 is
22 admitted into evidence.
23 [Respondent's Exhibit 69 admitted into evidence.]
24 MR. FODEMAN: Thank you, Judge.
25 Q: In respect to some of these, have you taken safety
Geneva Worldwide, Inc.
256 W 38 t h Street, 10 t h Floor, New York, NY 10018
SFM 007776
FILED: NEW YORK COUNTY CLERK 10/08/2018 09:01 PM INDEX NO. 162502/2015
NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/08/2018
COSBAN - DIRECT - FODEMAN 1457
1 courses and training courses?
2 A: Yes, I have.
3 Q: Describe just some of the courses you've taken over
4 time.
5 A: I've taken refresher courses, OSHA. I've taken my state
6 license, my city license, and the NCCO certifications.
7 Q: Are you certified or have you received specific training
8 with respect to any particular types of cranes?
9 A: Yes, I have.
10 Q: And is the Liebherr 1500 mobile crane one of the types
11 of cranes that you've received training and certification on?
12 A: Yes, it is.
13 Q: Was that the type of crane you were operating on May 31,
14 2015 at 261 Madison Avenue?
15 A: Yes.
16 Q: If you know, do you know approximately how many people
17 in New York City crane operators are certified to operate that
18 specific crane?
19 A: Probably five, five guys.
20 Q: Okay. And who was the first?
21 A: Myself.
22 Q: How long have you been operating that crane?
23 A: Since 2002.
24 Q: That was when the first one was brought to New York
25 City?
Geneva Worldwide, Inc.
256 W 38 t h Street, 10 t h Floor, New York, NY 10018
SFM 007777
FILED: NEW YORK COUNTY CLERK 10/08/2018 09:01 PM INDEX NO. 162502/2015
NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/08/2018
COSBAN - DIRECT - FODEMAN 1458
1 A: Yes.
2 Q: And can you estimate how many times you've operated the
3 crane since 2002?
4 A: I would say thou- thousands --
5 Q: Thousands.
6 A: -- of hours, yes.
7 Q: Thousands of hours. And with respect to -- well, let me
8 take a step back. Can you estimate for us the number of crane
9 rigging operations you've participated in in your, what, 30 years
10 of crane operator experience?
11 A: I would say thousands of rigging. Yes, definitely
12 thousands.
13 Q: Mostly here in New York City?
14 A: Yes. And, you know, out of the state too.
15 Q: I know you're modest, but can you describe some of the
16 more significant operations you've participated in over your
17 experience?
18 A: Just a lot of rigging in the City.
19 Q: Any specific jobs that we would all know about?
20 A: Just, I did the Concord, did the Concord, the space
21 shuttle. I've done lifts, Ground Zero lifts --
22 Q: What's the tallest crane you've operated?
23 A: Was the, was 507 for the boom, the, on a crawler crane.
24 Q: That's 507 feet tall?
25 A: Yes.
Geneva Worldwide, Inc.
256 W 38 t h Street, 10 t h Floor, New York, NY 10018
SFM 007778
FILED: NEW YORK COUNTY CLERK 10/08/2018 09:01 PM INDEX NO. 162502/2015
NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/08/2018
COSBAN - DIRECT - FODEMAN 1459
1 Q: That's like 50 stories?
2 A: Yes.
3 Q: And was that at the time the tallest crane ever operated
4 in New York City?
5 A: Yes, it was.
6 Q: Am I correct that the job on May 31, 2015 involved
7 lifting HVAC machinery into an existing high rise building?
8 A: Yes.
9 Q: Is that something that you'd done prior to May 31, 2015?
10 A: Yes, numerous times.
11 Q: Can you give us an estimate of how many times you've
12 been involved in an operation such as that?
13 A: Probably on an everyday basis doing riggings, stuff like
14 that. I was rigging obstacles into a building on a roof.
15 Q: You mean articles?
16 A: Yes.
17 Q: Okay. Are you familiar with the various rules and
18 regulations governing crane operators and the operations of cranes
19 in New York City?
20 A: Yes, I am.
21 Q: What are some of the agencies that operate, that
22 regulate crane operators here in New York?
23 A: Department of Buildings, DOT, OSHA.
24 Q: As a crane operator, what sorts of companies hire you to
25 do work for them?
Geneva Worldwide, Inc.
256 W 38 t h Street, 10 t h Floor, New York, NY 10018
SFM 007779
FILED: NEW YORK COUNTY CLERK 10/08/2018 09:01 PM INDEX NO. 162502/2015
NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/08/2018
COSBAN - DIRECT - FODEMAN 1460
1 A: Old rigging companies, regular construction companies in
2 the City, mostly rigging.
3 Q: And what are some of the rigging companies that you have
4 been hired to do work for?
5 A: They're Alco, Able Rigging, GTI, Brothers Rigging,
6 Pedowitz Machinery Movers, Tishman, Turner, you know --
7 Q: Those are construction.
8 A: Well, those are construction, but numerous rigging
9 companies. I can't think of them all on top of my head.
10 Q: Okay. And have you worked for Skylift as a rigging
11 company?
12 A: Oh, yes, Skylift, yes.
13 Q: Okay. And was the Skylift the company you were working
14 for on May 31, 2015?
15 A: Yes, it was.
16 Q: And just to be clear, that list of companies you gave
17 us, those were all different rigging companies, except for the
18 last couple. Right? Those last two were construction companies?
19 A: Yes.
20 Q: Had you ever worked for Skylift prior to May 31, 2015?
21 A: Yes, I have.
22 Q: Can you estimate how many times you've been hired by
23 them?
24 A: Probably since I started in my, my career, from that
25 point, again, thousands of times, you know. The rigging companies
Geneva Worldwide, Inc.
256 W 38 t h Street, 10 t h Floor, New York, NY 10018
SFM 007780
FILED: NEW YORK COUNTY CLERK 10/08/2018 09:01 PM INDEX NO. 162502/2015
NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/08/2018
[09:57:49] COSBAN - DIRECT - FODEMAN 1461
1 with Skylift every year numerous times.
2 Q: Do you know who the owners of Skylift are?
3 A: Yes. Frank Allecia and Brad.
4 Q: Brad Allecia.
5 A: Brad Allecia.
6 Q: How long have you worked with Frank Allecia?
7 A: Since I started my career. It's when I met Frank.
8 Q: So that's 30 years or so?
9 A: Yes.
10 Q: And how long have you know Brad Allecia?
11 A: Brad, must be 20 years.
12 Q: Since he started in the industry?
13 A: Yes.
14 Q: And have you worked personally with both those men?
15 A: Yes, I have.
16 Q: What types of jobs have you done with Skylift over the
17 years?
18 A: Numerous rigging jobs. Chillers, which, you know, go
19 into machinery rooms, whether it's on top of the building or
20 inside, you know, the building. Just numerous rigging jobs.
21 Q: Did, are you familiar with the term master rigger?
22 A: Yes.
23 Q: Do you know if anyone at Skylift is a master rigger?
24 A: Yes. Brad.
25 Q: Have you worked with other master riggers over the years
Geneva Worldwide, Inc.
256 W 38 t h Street, 10 t h Floor, New York, NY 10018
SFM 007781
FILED: NEW YORK COUNTY CLERK 10/08/2018 09:01 PM INDEX NO. 162502/2015
NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/08/2018
COSBAN - DIRECT - FODEMAN 1462
1 aside from Brad?
2 A: Yes, I have.
3 Q: From other companies.
4 A: Yes.
5 Q: And based on your personal observation, how does Brad
6 compare with the other master riggers with whom you've worked in
7 terms of competence and knowledge and character?
8 A: I would say he's the top one that I've worked with.
9 Q: Have you ever seen Brad Allecia do anything you
10 considered unsafe or careless?
11 A: No, not at all.
12 Q: Would you work with a master rigger or a rigging company
13 you considered to be careless or unsafe?
14 A: No, 'cause it would be detrimental to my career.
15 Q: Why, why do you say that?
16 A: If a master rigger, you know, did something, if he was
17 doing things that were wrong or unsafe, then it could affect my
18 license, you know, affect me.
19 Q: How about your life?
20 A: Well, yeah, affects my life, of course.
21 Q: Are you familiar with Skylift's rigging equipment that
22 they use in connection with their rigging operations?
23 A: Yes, I am.
24 Q: How would you generally describe that equipment that
25 Skylift uses?
Geneva Worldwide, Inc.
256 W 38 t h Street, 10 t h Floor, New York, NY 10018
SFM 007782
FILED: NEW YORK COUNTY CLERK 10/08/2018 09:01 PM INDEX NO. 162502/2015
NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/08/2018
COSBAN - DIRECT - FODEMAN 1463
1 A: State of the art.
2 Q: Have you ever seen then hesitate to take a piece of
3 equipment out of service? Have they ever hesitated to do that?
4 A: Oh, yes.
5 Q: When you say that, what do you mean?
6 A: If, if any piece was old or, you know, an old piece or
7 something that doesn't look like they would just take out of
8 service, you know, and --
9 Q: Never hesitated. Never, never thought twice about it.
10 A: Correct.
11 Q: You told us you were the op-, crane operator at 261
12 Madison Avenue that day? Is that correct?
13 A: Yes.
14 Q: And, again, just in your own words, describe what the
15 nature of that rigging operation was.
16 A: It was to set the crane up and to hoist machinery into
17 the building.
18 Q: Okay. And that's an existing high rise building?
19 A: Yes, it is.
20 Q: And what type of, generally, what type of machinery are
21 we talking about?
22 A: It would be air conditioning, cooling, you know, towers,
23 chillers.
24 Q: And was that to go on top of the building or into the
25 side of the building?
Geneva Worldwide, Inc.
256 W 38 t h Street, 10 t h Floor, New York, NY 10018
SFM 007783
FILED: NEW YORK COUNTY CLERK 10/08/2018 09:01 PM INDEX NO. 162502/2015
NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/08/2018
COSBAN - DIRECT - FODEMAN 1464
1 A: Inside the building on the side to the machinery room.
2 Q: Was this type of job unusual for you as a crane
3 operator?
4 A: No.
5 Q: Was it unusual for Skylift?
6 A: Nope.
7 Q: Is it unusual to occur, based on your experience of 30
8 years, is it unusual type of job that hap- happening in New York
9 City?
10 A: No.
11 Q: Were you involved in the planning of the job?
12 A: Well, not, not planning, but I would see the plans and
13 go over them at the day of the setup.
14 Q: Is that the crane placement drawing?
15 A: Yes.
16 Q: Okay. Is that something, who, do you know who prepared
17 that in this case?
18 A: It would be the engineer and, and Brad.
19 Q: And do you know who the engineer was on this, on this
20 job?
21 A: I believe it was Delgado Engineering.
22 Q: In addition to reviewing those plans, the crane
23 placement drawing, did you have any other role prior to May 31,
24 2015 in connection with this rigging operation?
25 A: I believe I, I did, months before pick that piece off
Geneva Worldwide, Inc.
256 W 38 t h Street, 10 t h Floor, New York, NY 10018
SFM 007784
FILED: NEW YORK COUNTY CLERK 10/08/2018 09:01 PM INDEX NO. 162502/2015
NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/08/2018
COSBAN - DIRECT - FODEMAN 1465
1 the truck when it got delivered to the yard. They would hire me
2 to go to their yard and, you know, take the pieces off. And then
3 Thursday before, I repacked it again and loaded it on the trailer
4 to go to the job.
5 Q: Okay. So you went to Skylift to ready the units that
6 were going to be hoisted on May 31st onto the delivery truck.
7 A: Yes.
8 Q: Did, I assume you used a crane to do that. Is that
9 correct?
10 A: Yes, a smaller crane, a cherry picker, yep.
11 Q: Okay. Was that crane that you utilized, you think it was
12 the Thursday prior?
13 A: Yes, 'cause they usually load out before the weekend and
14 it's usually Thursday.
15 Q: And this incident happened on a weekend.
16 A: Yes, sir.
17 Q: And the crane that you were using, that cherry picker,
18 did it have a scale? Was it equipped with a scale?
19 A: Yes, it is.
20 Q: And how accurate is that scale?
21 A: It's got to be accurate. It's 100 percent accurate.
22 Q: And did you obtain a weight on that Thursday?
23 A: Yes. It was 23,000 pounds.
24 Q: Is that consistent with the -- well, let me ask you
25 this. Do you, did you, would you have obtained a weight when the
Geneva Worldwide, Inc.
256 W 38 t h Street, 10 t h Floor, New York, NY 10018
SFM 007785
FILED: NEW YORK COUNTY CLERK 10/08/2018 09:01 PM INDEX NO. 162502/2015
NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/08/2018
COSBAN - DIRECT - FODEMAN 1466
1 unit was delivered?
2 ALJ GARCIA: Hold on. Let's clean up the
3 questioning. Did he obtain a weight of what?
4 MR. FODEMAN: Yeah. Thank you, Judge.
5 Q: I'm focused on the unit that actually fell that day.
6 You're familiar with that unit?
7 A: Yes.
8 Q: Okay. There were a number of pieces to be rigged into
9 the building that day?
10 A: Yes, I believe six pieces.
11 Q: And the last one was the one that fell. Is that
12 correct?
13 A: Correct.
14 Q: And so we can know what we're talking about. Can we
15 agree, we'll call that the chiller.
16 A: Okay.
17 Q: Is that a fair characterization of what fell?
18 A: Yes.
19 Q: Okay. The, the item that you, one of the items that you
20 lifted onto the, lifted off the delivery truck months before was,
21 did that include the chiller?
22 A: Yes, it did.
23 Q: Okay. And did you obtain a weight when the item was
24 initially delivered to Skylift's yard months prior?
25 A: Yes. And when I lifted it, it was already marked the
Geneva Worldwide, Inc.
256 W 38 t h Street, 10 t h Floor, New York, NY 10018
SFM 007786
FILED: NEW YORK COUNTY CLERK 10/08/2018 09:01 PM INDEX NO. 162502/2015
NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/08/2018
COSBAN - DIRECT - FODEMAN 1467
1 weight and when I lifted it, it did confirm the weight that was
2 already marked on the piece.
3 Q: Okay. And the same holds true for Thursday, prior to
4 the lift, you were able to obtain a weight of the chiller?
5 A: Yes.
6 Q: And, again, what was the weight of the chiller?
7 A: 23,000.
8 Q: And that was marked on the chiller itself in what, chalk
9 or something?
10 A: Magic marker, yep.
11 Q: Okay. When you lifted -- withdrawn. Are you familiar
12 with a term called center of gravity?
13 A: Yes, I am.
14 Q: And in your words, what is, what do you understand
15 center of gravity to mean?
16 A: It's where the piece would be the, the center of the
17 weight to make it, to make the piece, to find its center of
18 gravity so the lift would be stable.
19 Q: And were you able to ascertain the center of gravity
20 when you picked it up in Skylift's yard?
21 A: Yes. We picked it with no incident. It picked up
22 straight. It wasn't leaning any way.
23 Q: And what did that tell you? And we're talking about the
24 chiller.
25 A: Yes.
Geneva Worldwide, Inc.
256 W 38 t h Street, 10 t h Floor, New York, NY 10018
SFM 007787
FILED: NEW YORK COUNTY CLERK 10/08/2018 09:01 PM INDEX NO. 162502/2015
NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/08/2018
COSBAN - DIRECT - FODEMAN 1468
1 Q: What did that tell you about where the center of gravity
2 was for the chiller?
3 A: That it would be in the center of the piece. There was
4 no opposing force pulling it in a certain way so it seemed stable
5 in the middle.
6 Q: And, and just to make sure we're clear on this, if you
7 had lifted it off the truck bed or onto the truck bed and it was
8 tilted, that would tell you what about the center of gravity?
9 A: That the center of gravity is off.
10 Q: Meaning not in the middle.
11 A: Oh, correct, yes.
12 Q: Did the, did the piece pick level each time you picked
13 it up in Skylift's yard?
14 A: Yes.
15 Q: If it didn’t, would you have conveyed that information
16 to Brad Allecia?
17 A: Or, yes, or one of his men.
18 Q: Would one of his, would his men be present when you did
19 that, when you lifted the items?
20 A: Yes. They're the ones that rig it in the yard.
21 Q: Understood. I want to take you to the day of the actual
22 incident, May 31st. Can you tell the Court how that day actually
23 began for you?
24 A: Yes. We left the crane's yard, it must have been 3:00
25 a.m. Bring the crane to the City. We would pull up. At that
Geneva Worldwide, Inc.
256 W 38 t h Street, 10 t h Floor, New York, NY 10018
SFM 007788
FILED: NEW YORK COUNTY CLERK 10/08/2018 09:01 PM INDEX NO. 162502/2015
NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/08/2018
COSBAN - DIRECT - FODEMAN 1469
1 point, Brad would meet Brad's guys and Brad or Frank, whoever's
2 there, and we'd go over the plan, over the placement of where the
3 crane would be.
4 Q: Let me stop you there. On this particular day, did you
5 have an understanding of who would be in charge of the rigging
6 operation?
7 A: When I, yes, when I got there, yes.
8 Q: And who, who, what was your understanding of who was in
9 charge that day?
10 A: It was Frank.
11 Q: Okay. Was it unusual that Frank would be in charge?
12 A: No.
13 Q: Who, when you said, we would go to the street, who,
14 who'd you travel with or who were you with?
15 A: I have a partner in the crane, it would be my oiler. He
16 would drive the crane and assist me in the building of the crane
17 and the placement and assist me.
18 Q: And you said the term is oiler? Is that correct?
19 A: Yes.
20 Q: O-I-L-E-R?
21 A: Yes.
22 Q: Do you recall, not exactly, but approximately what time
23 it was that you got to the, the area of Madison Avenue where this
24 incident happened?
25 A: I believe it was about 4:00 a.m.
Geneva Worldwide, Inc.
256 W 38 t h Street, 10 t h Floor, New York, NY 10018
SFM 007789
FILED: NEW YORK COUNTY CLERK 10/08/2018 09:01 PM INDEX NO. 162502/2015
NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/08/2018
COSBAN - DIRECT - FODEMAN 1470
1 Q: And who was present when you got there?
2 A: It was Frank, Skylift's, Skylift's guys and DOB.
3 Q: And you say, DOB. A specific individual from DOB?
4 A: Yes. John Moran, the inspector.
5 Q: He's an inspector for the Cranes and Derricks Division?
6 A: Yes.
7 Q: Did you know John Moran prior to this?
8 A: Yes.
9 Q: Had you been on sites where he was serving as the DOB's
10 inspector?
11 A: Yep, a lot of times.
12 Q: What happened when you arrived and the others arrived?
13 What was the first step?
14 A: We'd meet and then we look at the plans of, like I said,
15 the placement of the crane would show where the center pin would
16 be, you know, the building of the crane. We had to put our
17 outriggers down so we had to put steel mats for the outriggers so
18 --
19 Q: Of the crane, of the crane?
20 A: -- of the crane, yes. So there's a lot of planning and
21 it's all on Delgado's plans. And we take measurements to make
22 sure the placement of the crane is correct.
23 Q: Okay. And was the inspector there for that part of the
24 operation?
25 A: Yes. He's the one that make
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Matter on the Law & Motion calendar for Wednesday, July 10, 2024, Line 11. DEFENDANT NOELLE MORENO's MOTION TO STRIKE COMPLAINT. Off calendar for noncompliance with Local Rule 2.7(B) (courtesy copies). The motion may be re-set for a Mon.-Thurs. after July 24, with papers to bear new hearing date. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)
Ruling
ARMEN BEGOYAN VS CITY OF LOS ANGELES, ET AL.
Jul 11, 2024 |
21STCV34525
Case Number:
21STCV34525
Hearing Date:
July 11, 2024
Dept:
32
PLEASE NOTE
:
Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.
If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at
sscdept32@lacourt.org
indicating that partys intention to submit.
The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling.
If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.
If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.
Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court
.
TENTATIVE RULING
DEPT
:
32
HEARING DATE
:
July 11, 2024
CASE NUMBER
:
21STCV34525
MOTIONS
:
Motion for Terminating Sanctions
MOVING PARTY:
Defendant City of Los Angeles
OPPOSING PARTY:
None
BACKGROUND
Defendant City of Los Angeles (
Defendant) moves for terminating sanctions against Plaintiff
Armen Begoyan (Plaintiff) for failure to comply with the Courts April 26, 2024 discovery order. Defendant seeks to dismiss the entire action. No opposition has been filed.
LEGAL STANDARD
To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose&sanctions against anyone engaging in conduct that is a misuse of the discovery process. (Code Civ. Proc. section 2023.030.) The court may impose a terminating sanction for misuse of the discovery process by any of the following: (1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process; (2) An order staying further proceedings by that party until an order for discovery is obeyed; (3) An order dismissing the action, or any part of the action, of that party; (4) An order rendering a judgment by default against that party. (Code Civ. Proc. § 2023.030(d).)
Failing to respond or to submit to an authorized method of discovery, or
disobeying a court order to provide discovery,
constitutes a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d), (g).)
The trial court may order a terminating sanction for discovery abuse after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery. (
Los Defensores, Inc. v. Gomez
(2014) 223 Cal.App.4th 377, 390, quoting
Lang v. Hochman
(2000) 77 Cal.App.4th 1225, 1246.)
Generally, [a] decision to order terminating sanctions should not be made lightly.
But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction. (
Los Defensores, supra
, 223 Cal. App. 4th at p. 390 [citation omitted].)
Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders. (
Los Defensores, supra
, 223 Cal.App.4th at p. 390 citing
Lang, supra
, 77 Cal.App.4th at pp. 1244-1246 [discussing cases]; see, e.g.,
Collisson & Kaplan v. Hartunian
(1994) 21 Cal.App.4th 1611, 1617-1622 [terminating sanctions imposed (by striking the defendants Answer and subsequently granting default judgment) after defendants failed to comply with one court order to produce discovery];
Laguna Auto Body v. Farmers Ins. Exchange
(1991) 231 Cal.App.3d 481, 491, disapproved on other grounds in
Garcia v. McCutchen
(1997) 16 Cal.4th 469, 478, n. 4 [terminating sanctions imposed against the plaintiff for failing to comply with a discovery order and for violating various discovery statutes].)
If a party . . . fails to obey an order compelling answers [to interrogatories or requests for production], the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010). (Code Civ. Proc. §§ 2030.290(c); 2031.300(c).)
DISCUSSION
Written discovery was originally served on Plaintiff on March 1, 2023. (Kahramanian Decl. ¶ 2.) On September 21, 2023 and January 11, 2024, Defendants counsel emailed Plaintiffs counsel requesting responses but received no response. (
Id.
¶ 3.)
On April 26, 2024, the Court granted
Defendants unopposed motion to compel Plaintiffs responses to Demand for Production of Documents, Set One, Special Interrogatories, Set One, and Form Interrogatories, Set One. Plaintiff was ordered to provide verified responses, without objections, within 10 days. (Min. Order, 4/26/24.) The Court also imposed $700.00 in monetary sanctions against Plaintiff and his counsel of record.
On May 2, 2024, Defendant filed and served electronic notice of the ruling on Plaintiffs counsel. Defendant contends that no responses have been served complying with the Courts order. (Kahramanian Decl. ¶ 4.) Plaintiff has not filed an opposition to this motion.
Therefore, it appears that the discovery was first served in March 2023, and the motion to compel was granted on April 26, 2024. Throughout this time, Defendant sought to obtain responses through informal ways before ultimately obtaining an order to compel. The delay in time also demonstrates that Defendant has been prevented from mounting a defense against this case. Considering the above, the fact Plaintiff did not oppose this motion nor the previous motion to compel, and monetary sanctions have been ineffective, the Court finds Plaintiffs actions to be willful. Therefore, the motion for terminating sanctions is granted.
CONCLUSION
Therefore, Defendant
City of Los Angeles
motion for terminating sanctions is GRANTED. The only remaining defendants are Doe Defendants who have not been named or served, and therefore t
he Court orders the complaint dismissed in its entirety.
If Defendant moves to dismiss the cross-complaint at the hearing on this motion, then the Final Status Conference and Jury Trial dates will be advanced and vacated.
Defendant shall provide notice of the Courts ruling and file a proof of service of such.
Ruling
Gilbert Hernandez vs. In-Shape Health Clubs, LLC
Jul 11, 2024 |
20CV-02521
20CV-02521 Gilbert Hernandez v. In-Shape Health Clubs LLC
Trial Settng Conference
Appearance required. Remote appearances are permitted. Parties who wish to appear
remotely must contact the clerk of the court at (209) 725-4111 to arrange for a remote
appearance. Appear to address the status of case following the unsuccessful mediation
and whether it is time to set this matter for trial.
Ruling
SOCORRO ALEGRIA VS ALTAMED HEALTH SERVICES CORPORATION, A CALIFORNIA CORPORATION, ET AL.
Jul 11, 2024 |
24PSCV00032
Case Number:
24PSCV00032
Hearing Date:
July 11, 2024
Dept:
K
1.
Defendant AltaMed Health Services Corporations Motion for Judgment on the Pleadings is summarily GRANTED in part (i.e., as to the fifth, sixth and tenth causes of action) and otherwise DENIED in part (i.e., as to the eighth and ninth causes of action).
2.
Defendant AltaMed Health Services Corporations Motion to Strike is DENIED as MOOT.
Background
Plaintiff Socorro Alegria (Plaintiff) alleges as follows: Plaintiff was sexually assaulted during her March 22, 2023 medical imaging appointment. On January 3, 2024, Plaintiff filed a complaint, asserting causes of action against AltaMed Health Services Corporation (AltaMed), Jose Luis Sanchez and Does 1-20 for:
1.
Negligent Hiring Retention, Supervision and Failure to Terminate (v. AltaMed only)
2.
Common Law Assault (v. Sanchez only)
3.
Common Law Battery (v. Sanchez only)
4.
Sexual Battery in Violation of Civil Code § 1708.5 (v. Sanchez only)
5.
Violation of Civil Code § 51.7
6.
Sexual Harassment in Violation of Civil Code § 51.9
7.
Intentional Infliction of Emotional Distress (v. Sanchez only)
8.
Negligent Infliction of Emotional Distress
9.
Negligence (v. AltaMed only)
10.
Violation of the Tom Bane Civil Rights Act A Case Management Conference is set for July 11, 2024.
1.
Judgment on the Pleadings
Legal Standard
The rules governing demurrers are generally applicable to a motion for judgment on the pleadings. (
Cloud v. Northrop Grumman Corp.
(1998) 67 Cal.App.4th 995, 999; Code Civ. Proc., § 438, subd. (d) [The grounds for motion. . . shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. Where the motion is based on a matter of which the court may take judicial notice. . ., the matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit].)
A motion by a plaintiff may only be made on the grounds that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint. (Code Civ. Proc., § 438, subd. (c)(1)(A).) A motion by a defendant may only be made on the grounds that (1) [t]he court has no jurisdiction of the subject of the cause of action alleged in the complaint or (2) [t]he complaint does not state facts sufficient to constitute a cause of action against that defendant. (Code Civ. Proc., § 438, subd. (c).)
Although a nonstatutory motion may be made at any time either prior to the trial or at the trial itself (
Stoops v. Abbassi
(2002) 100 Cal.App.4th 644, 650 [quotation marks and citation omitted]), a statutory motion cannot be made after entry of a pretrial conference order or 30 days before the initial trial date, whichever is later, unless the court otherwise permits. (Code Civ. Proc., § 438, subd. (e).)
Discussion
AltaMed moves the court, pursuant to Code of Civil Procedure § 438, for judgment on the pleadings as to the fifth, sixth, and eighth through tenth (i.e., for
Violation of Civil Code § 51.7, Sexual Harassment in Violation of Civil Code § 51.9, Negligent Infliction of Emotional Distress, Negligence and Violation of the Tom Bane Civil Rights Act, respectively)
causes of action in Plaintiffs complaint, on the basis that they each fail to state facts sufficient to constitute causes of action.
At the outset, Plaintiff represents that she agrees to dismiss her fifth, sixth and tenth causes of action, without prejudice (Opp., 1:26-2:2); accordingly, in the event a Request for Dismissal is not on file by the time of the hearing, the court will summarily grant the motion in this regard.
The courts following analysis, then, is limited to Plaintiffs eighth and ninth causes of action, for Negligent Infliction of Emotional Distress and Negligence, respectively:
AltaMed asserts that these causes of action fail because it cannot be held vicariously liable for an alleged sexual assault by its employee. [A]n employer is vicariously liable for the torts of its employees committed within the scope of the employment. (
Lisa M. v. Henry Mayo Newhall Memorial Hospital
(1995) 12 Cal.4th 291, 296.) However, [a]n
employer will not be held liable for an assault or other intentional tort that did not have a causal nexus to the employee's work. (
Id.
at 297).
The court construes Plaintiffs eighth and ninth causes of action as sounding in direct negligence, rather than vicarious liability. Further, while AltaMed contends that these causes of action are surplusage, this argument was raised for the first time in the reply; as such, it is disregarded. The motion is denied in this regard.
2.
Motion to Strike
AltaMed moves the court for an order striking out the following language from Plaintiffs complaint:
1.
Page 12, paragraph 68, lines 6-12;
2.
Page 13, paragraph 79, lines 9-15;
3.
Page 16, paragraph 102, lines 18-24;
4.
Page 17, paragraph 7, line 13;
5.
Page 17, paragraph 9, line 15;
6.
Page 17, paragraph 10, line 16. AltaMeds request is denied as moot. All of the allegations AltaMed seeks to have stricken pertain to the fifth, sixth and tenth causes of action, which Plaintiff has agreed to dismiss.
Ruling
Thompson, Harry Fayne III vs. Rose, Steven Leon et al
Jul 22, 2024 |
S-CV-0052451
S-CV-0052451 Thompson, Harry Fayne III vs. Rose, Steven Leon et al
No appearance required. CMC is continued to 10/14/24 at 2pm in Dept. 6.
Complaint is not at issue - Need responsive pleading, default or dismissal as to
Defendant(s): Grossman, Marilyn Joy
Additionally, no proof of service has been filed as to Defendant(s): Rose, Steven
Leon
Ruling
TODD BERTRANG, ET AL. VS IVORY HOLDINGS, LLC, A LIMITED LIABILITY COMPANY, ET AL.
Jul 09, 2024 |
21STCV42736
Case Number:
21STCV42736
Hearing Date:
July 9, 2024
Dept:
S25 Procedural Background Plaintiffs, Todd Bertrang (Bertrang) and Ophie Beltran (Beltran) (collectively, Plaintiffs) sued Defendants, Lido Sailing Club, Inc. (Lido), Ivory Holdings, LLC (Ivory), and Scott Vollero (Vollero) based on injuries Plaintiffs allege they sustained from Bertrangs exposure to hazardous chemicals. Plaintiffs filed their original complaint on November 18, 2021, and filed a First Amended Complaint (FAC) on May 4, 2022. Notably, Plaintiffs did not serve any party prior to filing their FAC, and no party responded to the original complaint. On September 8, 2022, the Court sustained Lido Sailing Club, LLCs demurrer to the FAC with leave to amend. (September 8, 2022 Minute Order.) On September 30, 2022, Plaintiffs filed their Second Amended Complaint (SAC). On October 5, 2022, Lido filed a demurrer to the SAC. Shortly thereafter, the personal injury hub court found the case complicated and transferred it to Long Beach for all further proceedings. On January 12, 2023, Lido re-filed its demurrer to the SAC in Department S27. On June 27, 2023, the Court continued the hearing on the demurrer, finding the parties had not adequately met and conferred prior to filing their papers. On July 27, 2023, the Court sustained the demurrer with leave to amend. On September 20, 2023, rather than amending the SAC, Plaintiffs dismissed Lido from the case. On December 21, 2023, Defendants Ivory Holdings and Vollero filed a demurrer with the motion to strike portions of the SAC. On January 23, 2024, the Court sustained the demurrer with leave to 20 days amend as to the NIED cause of action and alter ego liability cause of action and overruled the strict liability for ultrahazardous activity cause of action, the violation of Health and Safety Code, § 25359.7, cause of action and the IIED cause of action; the Court also granted the motion to strike without leave to amend as to punitive damages and related allegations. (January 23, 2024 Minute Order.) On April 24, 2024, Plaintiffs filed a Third Amended Complaint (TAC) more than two months after the Courts January 23 order. Meet and Confer Defendant Volleros counsel states that he sent a meet and confer letter to Plaintiffs counsel on May 17, 2024 detailing issues with the TAC and his availability for a telephonic meet and confer at least 5 days prior to filing the instant motions. (Rasmussen Decl.1, ¶ 5, Exh. B.) Defendant Volleros counsel states that Plaintiffs counsel did not respond to the meet and confer attempt. (Id., at ¶ 6.) In opposition, Plaintiffs counsel argues Defendant Volleros counsel failed to meet and confer because the issues were not discussed in person or by telephone as required under Code Civ. Proc., §§ 430.41, 435.5. Notwithstanding the parties conflicting ideas of meet and confer, it is very likely an informal attempt to resolve the matter would have been unsuccessful. Analysis 1. Delay in Filing of Third Amended Complaint Code Civ. Proc., § 472b, states that: [w] hen a demurrer to any pleading is sustained or overruled, and time to amend or answer is given, the time so given runs from the service of notice of the decision or order, unless the notice is waived in open court, and the waiver entered in the minutes. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2024) ¶ 7:145; Cano v. Glover (2006) 143 Cal.App.4th 326, 329-330.) After expiration of the time in which a pleading can be amended as a matter of course, the pleading can only be amended by obtaining the permission of the court. (Leader v. Health Indus. of Am., Inc. (2001) 89 Cal. App. 4th 603, 613.) While a court has discretion to require a noticed motion before permitting a plaintiff to file an amended complaint late, a court also has the discretion to accept a filing without a noticed motion. (Harlan v. Dep't of Transportation (2005) 132 Cal. App. 4th 868, 873.) The Court exercises its discretion and accepts Plaintiffs untimely filed Third Amended Complaint without a noticed motion. 2. Second Amended Complaint Holding (Alter Ego) On January 23, 2024, Judge Mark Kim sustained Defendant Volleros Demurrer to the Second Amended Complaint with leave to amend. Judge Kim ruled: All claims against Volero are plead on an alter ego theory. Plaintiffs alter ego allegations are found at ¶6 of the SAC, and merely allege that each defendant was acting as the alter ego of each other defendant. Relying on Rutherford Holdings, LLC v. Playa del Rey (2014) 223 Cal.App. 221, 236, Judge Kim held: Plaintiffs herein failed to allege any of the ultimate facts showing alter ego liability. They failed to allege unity of interest, domination and control, inadequate capitalization, etc. Voleros demurrer is therefore sustained with leave to amend. Plaintiffs must allege ultimate facts showing imposition of liability against Volero would be proper. (See January 23, 2024 Minute Order, Legal Standard on Demurrer, Alter Ego Liability, 3(h)). 3. Demurrer to the Third Amended Complaint (Alter Ego) A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing partys pleading. It is error for the trial court to sustain a demurrer if the plaintiff has stated a cause of action under any possible legal theory, and it is an abuse of discretion for the court to sustain a demurrer without leave to amend if the plaintiff has shown there is a reasonable possibility a defect can be cured by amendment. California Logistics, Inc. v. State of California (2008) 161 Cal. App. 4th 242, 247. The burden is on the complainant to show in what manner and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Plaintiffs allegations of alter ego in the TAC are found at ¶ 3 and 6. These allegations are identical to the alter ego allegations found at ¶ 3 and ¶6 of the SAC. No additional facts or allegations have been added by Plaintiffs. As discussed, Judge Kim found those allegations deficient as Plaintiff failed to allege any of the ultimate facts showing alter ego liability and failed to allege unity of interest, domination and control, inadequate capitalization. (January 23, 2024 Minute Order). In sum, Plaintiffs completely failed to amend or modify their operative pleading in any manner or in compliance with Judge Kims ruling. In Plaintiffs opposition, Plaintiffs request leave to amend by suggesting three new facts, previously unknown, support the theory of alter ego between Vollero and Ivory Holdings. These facts are: (1) and (2) on August 16, 2016, two separate Deeds of Trust were recorded against the subject premises with Vollero as the Beneficiary and (3) Vollero, as an individual, performed the alleged remediation of the toxic chemicals which are alleged to have harmed Plaintiffs. Assuming the new facts found in Plaintiffs Opposition are true, Plaintiffs have not met their burden demonstrating how or in what manner these new allegations support of finding that a reasonable possibility exist for Plaintiffs to cure the defects and successfully pled a theory of alter ego. (Reeder v. Specialized Loan Servicing LLC (2020) 52 Cal.App.5th 795, 805.) These additional facts show no connection between Vollero and Ivory Holdings. Even with the inclusion of those three allegations, Plaintiffs operative pleading would fail to allege any of the ultimate facts showing an alter ego theory as set forth in Rutherford (e.g. allegations of unity of interest, domination and control, inadequate capitalization). 4. Ruling The Court sustains Defendant Volleros Demurrer without leave to amend. Defendant Volleros motion to strike is now moot.
Ruling
Luis Kutz, et al vs Jennifer Fribourgh, et al
Jul 11, 2024 |
23CV01711
23CV01711
KUTZ et al. v. FRIBOURGH et al.
(UNOPPOSED) PLAINTIFFS’ MOTIONS TO BE RELIEVED
The unopposed motions are denied without prejudice. Counsel must refile to reflect
correct upcoming hearing dates in the declarations and proposed orders.
Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal order
incorporating, verbatim, the language of any tentative ruling – or attaching and incorporating the
tentative by reference - or an order consistent with the announced ruling of the Court, in
accordance with California Rule of Court 3.1312. Such proposed order is required even if the
prevailing party submitted a proposed order prior to the hearing (unless the tentative is
simply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition of
sanctions following an order to show cause hearing, if a proposed order is not timely filed.
Page 1 of 1
Ruling
Dryden, Donna vs Tri Counties Bank
Jul 10, 2024 |
23CV03115
23CV03115 Dryden, Donna et al. v. Tri Counties Bank
EVENT: Plaintiffs’ Motion to Consolidate and Appoint Interim Class Counsel
Plaintiffs’ Motion to Consolidate and Appoint Interim Class Counsel is GRANTED. Defendant
shall file a responsive pleading within 60 days of the date of this order. The Court will sign the
proposed order with the noted modification.
Document
Patrick Strickland v. W.I.P. Club, Inc., Barry Mullineaux, Collective Hardware, Inc., John Bakhishi, Lina Kay, Hirukuni Sai, John C. Best, Frank Porco, Merlin Bobb-Willis, 150 Rft Varick Corp., 150 Rft Varick Basement Llc, W. & M. Operating, L.L.C., Aubrey Graham Drake a/k/a DRAKE, Allstar Security & Consulting, Inc., Christopher Maurice Brown a/k/a CHRIS BROWN
Apr 08, 2013 |
Anil Singh
|
Tort |
Tort |
153185/2013
Document
Melania Rodriguez and RYAN LUNT, as Parents and Natural Guardians of Z.L, Melania Rodriguez, Ryan Lunt Individually v. Nicholas James Buffin M.D., Valerie Lewis-Morris M.D., Emily Schmidt-Beuchat M.D., Hope S. Langer M.D., Youyin Choy M.D., Lois Brustman M.D., Susan Rothenberg M.D., Helaine Worrell M.D., Mount Sinai West, West Care Medical, P.C.,, Faculty Practice Associates-Mount Sinai Hospital,, Midtown Ob/Gyn
Mar 15, 2021 |
John J. Kelley
|
Torts - Medical, Dental, or Podiatrist Malpractice |
Torts - Medical, Dental, or Podiatrist Malpractice |
805086/2021
Preview
FILED: NEW YORK COUNTY CLERK 10/08/2018 09:01 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/08/2018 PROCEEDINGS 1455 1 MR. FODEMAN: Thank you, Judge. 2 DIRECT EXAMINATION OF MR. COSBAN 3 BY MR. FODEMAN 4 Q: Mr. Cosban, good morning. 5 A: Good morning. 6 Q: What do you do for a living? 7 A: I'm a crane operator. 8 Q: And just make sure that mic is close enough so we can 9 all hear. Great. How long have you been a crane operator, sir? 10 A: Thirty years. 11 Q: Were you operating a mobile crane in the vicinity of 261 12 Madison Avenue on May 31, 2015? 13 A: Yes, I was. 14 Q: I'm going to talk to you, obviously, about that 15 incident, but before we get there, I want to talk to you a little 16 bit about your background -- 17 A: Okay. 18 Q: -- experience. Alright? 19 A: Yes. 20 Q: How old are you, sir? 21 A: Fifty. 22 Q: And how was it that you came to become a crane operator? 23 A: Through my family. My family, uncles, and cousins are 24 all crane operators. 25 Q: Do you hold any licenses or certifications? Geneva Worldwide, Inc. 256 W 38 t h Street, 10 t h Floor, New York, NY 10018 SFM 007775 FILED: NEW YORK COUNTY CLERK 10/08/2018 09:01 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/08/2018 COSBAN - DIRECT - FODEMAN 1456 1 A: Yes. Numerous. 2 Q: Can you just tell us some of the licenses and 3 certifications that you currently hold? 4 A: Yes. I have a, a Class B unlimited license from New 5 York City. I have -- 6 Q: Is that a crane operator's license? 7 A: Yes, it is. I have NCCO, all six certifications. I've 8 a state license, New York State crane license unlimited, and OSHA 9 40, 40 hour OSHA card also. 10 Q: Okay. I'm going to sh-, you might have the exhibits in 11 front of you, but do you have Respondent's Exhibit 69 in front of 12 you? 13 A: This one. The licensing? 14 Q: Yes. Is Respondent's 69 a copy of your current 15 licenses? 16 A: Yes, it is. 17 MR. FODEMAN: Your Honor, at this time, I'd offer 18 Respondent's 69 into evidence. 19 ALJ GARCIA: Any objections? 20 MS. PENA: No objections. 21 ALJ GARCIA: Without objection, Respondent's 69 is 22 admitted into evidence. 23 [Respondent's Exhibit 69 admitted into evidence.] 24 MR. FODEMAN: Thank you, Judge. 25 Q: In respect to some of these, have you taken safety Geneva Worldwide, Inc. 256 W 38 t h Street, 10 t h Floor, New York, NY 10018 SFM 007776 FILED: NEW YORK COUNTY CLERK 10/08/2018 09:01 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/08/2018 COSBAN - DIRECT - FODEMAN 1457 1 courses and training courses? 2 A: Yes, I have. 3 Q: Describe just some of the courses you've taken over 4 time. 5 A: I've taken refresher courses, OSHA. I've taken my state 6 license, my city license, and the NCCO certifications. 7 Q: Are you certified or have you received specific training 8 with respect to any particular types of cranes? 9 A: Yes, I have. 10 Q: And is the Liebherr 1500 mobile crane one of the types 11 of cranes that you've received training and certification on? 12 A: Yes, it is. 13 Q: Was that the type of crane you were operating on May 31, 14 2015 at 261 Madison Avenue? 15 A: Yes. 16 Q: If you know, do you know approximately how many people 17 in New York City crane operators are certified to operate that 18 specific crane? 19 A: Probably five, five guys. 20 Q: Okay. And who was the first? 21 A: Myself. 22 Q: How long have you been operating that crane? 23 A: Since 2002. 24 Q: That was when the first one was brought to New York 25 City? Geneva Worldwide, Inc. 256 W 38 t h Street, 10 t h Floor, New York, NY 10018 SFM 007777 FILED: NEW YORK COUNTY CLERK 10/08/2018 09:01 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/08/2018 COSBAN - DIRECT - FODEMAN 1458 1 A: Yes. 2 Q: And can you estimate how many times you've operated the 3 crane since 2002? 4 A: I would say thou- thousands -- 5 Q: Thousands. 6 A: -- of hours, yes. 7 Q: Thousands of hours. And with respect to -- well, let me 8 take a step back. Can you estimate for us the number of crane 9 rigging operations you've participated in in your, what, 30 years 10 of crane operator experience? 11 A: I would say thousands of rigging. Yes, definitely 12 thousands. 13 Q: Mostly here in New York City? 14 A: Yes. And, you know, out of the state too. 15 Q: I know you're modest, but can you describe some of the 16 more significant operations you've participated in over your 17 experience? 18 A: Just a lot of rigging in the City. 19 Q: Any specific jobs that we would all know about? 20 A: Just, I did the Concord, did the Concord, the space 21 shuttle. I've done lifts, Ground Zero lifts -- 22 Q: What's the tallest crane you've operated? 23 A: Was the, was 507 for the boom, the, on a crawler crane. 24 Q: That's 507 feet tall? 25 A: Yes. Geneva Worldwide, Inc. 256 W 38 t h Street, 10 t h Floor, New York, NY 10018 SFM 007778 FILED: NEW YORK COUNTY CLERK 10/08/2018 09:01 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/08/2018 COSBAN - DIRECT - FODEMAN 1459 1 Q: That's like 50 stories? 2 A: Yes. 3 Q: And was that at the time the tallest crane ever operated 4 in New York City? 5 A: Yes, it was. 6 Q: Am I correct that the job on May 31, 2015 involved 7 lifting HVAC machinery into an existing high rise building? 8 A: Yes. 9 Q: Is that something that you'd done prior to May 31, 2015? 10 A: Yes, numerous times. 11 Q: Can you give us an estimate of how many times you've 12 been involved in an operation such as that? 13 A: Probably on an everyday basis doing riggings, stuff like 14 that. I was rigging obstacles into a building on a roof. 15 Q: You mean articles? 16 A: Yes. 17 Q: Okay. Are you familiar with the various rules and 18 regulations governing crane operators and the operations of cranes 19 in New York City? 20 A: Yes, I am. 21 Q: What are some of the agencies that operate, that 22 regulate crane operators here in New York? 23 A: Department of Buildings, DOT, OSHA. 24 Q: As a crane operator, what sorts of companies hire you to 25 do work for them? Geneva Worldwide, Inc. 256 W 38 t h Street, 10 t h Floor, New York, NY 10018 SFM 007779 FILED: NEW YORK COUNTY CLERK 10/08/2018 09:01 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/08/2018 COSBAN - DIRECT - FODEMAN 1460 1 A: Old rigging companies, regular construction companies in 2 the City, mostly rigging. 3 Q: And what are some of the rigging companies that you have 4 been hired to do work for? 5 A: They're Alco, Able Rigging, GTI, Brothers Rigging, 6 Pedowitz Machinery Movers, Tishman, Turner, you know -- 7 Q: Those are construction. 8 A: Well, those are construction, but numerous rigging 9 companies. I can't think of them all on top of my head. 10 Q: Okay. And have you worked for Skylift as a rigging 11 company? 12 A: Oh, yes, Skylift, yes. 13 Q: Okay. And was the Skylift the company you were working 14 for on May 31, 2015? 15 A: Yes, it was. 16 Q: And just to be clear, that list of companies you gave 17 us, those were all different rigging companies, except for the 18 last couple. Right? Those last two were construction companies? 19 A: Yes. 20 Q: Had you ever worked for Skylift prior to May 31, 2015? 21 A: Yes, I have. 22 Q: Can you estimate how many times you've been hired by 23 them? 24 A: Probably since I started in my, my career, from that 25 point, again, thousands of times, you know. The rigging companies Geneva Worldwide, Inc. 256 W 38 t h Street, 10 t h Floor, New York, NY 10018 SFM 007780 FILED: NEW YORK COUNTY CLERK 10/08/2018 09:01 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/08/2018 [09:57:49] COSBAN - DIRECT - FODEMAN 1461 1 with Skylift every year numerous times. 2 Q: Do you know who the owners of Skylift are? 3 A: Yes. Frank Allecia and Brad. 4 Q: Brad Allecia. 5 A: Brad Allecia. 6 Q: How long have you worked with Frank Allecia? 7 A: Since I started my career. It's when I met Frank. 8 Q: So that's 30 years or so? 9 A: Yes. 10 Q: And how long have you know Brad Allecia? 11 A: Brad, must be 20 years. 12 Q: Since he started in the industry? 13 A: Yes. 14 Q: And have you worked personally with both those men? 15 A: Yes, I have. 16 Q: What types of jobs have you done with Skylift over the 17 years? 18 A: Numerous rigging jobs. Chillers, which, you know, go 19 into machinery rooms, whether it's on top of the building or 20 inside, you know, the building. Just numerous rigging jobs. 21 Q: Did, are you familiar with the term master rigger? 22 A: Yes. 23 Q: Do you know if anyone at Skylift is a master rigger? 24 A: Yes. Brad. 25 Q: Have you worked with other master riggers over the years Geneva Worldwide, Inc. 256 W 38 t h Street, 10 t h Floor, New York, NY 10018 SFM 007781 FILED: NEW YORK COUNTY CLERK 10/08/2018 09:01 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/08/2018 COSBAN - DIRECT - FODEMAN 1462 1 aside from Brad? 2 A: Yes, I have. 3 Q: From other companies. 4 A: Yes. 5 Q: And based on your personal observation, how does Brad 6 compare with the other master riggers with whom you've worked in 7 terms of competence and knowledge and character? 8 A: I would say he's the top one that I've worked with. 9 Q: Have you ever seen Brad Allecia do anything you 10 considered unsafe or careless? 11 A: No, not at all. 12 Q: Would you work with a master rigger or a rigging company 13 you considered to be careless or unsafe? 14 A: No, 'cause it would be detrimental to my career. 15 Q: Why, why do you say that? 16 A: If a master rigger, you know, did something, if he was 17 doing things that were wrong or unsafe, then it could affect my 18 license, you know, affect me. 19 Q: How about your life? 20 A: Well, yeah, affects my life, of course. 21 Q: Are you familiar with Skylift's rigging equipment that 22 they use in connection with their rigging operations? 23 A: Yes, I am. 24 Q: How would you generally describe that equipment that 25 Skylift uses? Geneva Worldwide, Inc. 256 W 38 t h Street, 10 t h Floor, New York, NY 10018 SFM 007782 FILED: NEW YORK COUNTY CLERK 10/08/2018 09:01 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/08/2018 COSBAN - DIRECT - FODEMAN 1463 1 A: State of the art. 2 Q: Have you ever seen then hesitate to take a piece of 3 equipment out of service? Have they ever hesitated to do that? 4 A: Oh, yes. 5 Q: When you say that, what do you mean? 6 A: If, if any piece was old or, you know, an old piece or 7 something that doesn't look like they would just take out of 8 service, you know, and -- 9 Q: Never hesitated. Never, never thought twice about it. 10 A: Correct. 11 Q: You told us you were the op-, crane operator at 261 12 Madison Avenue that day? Is that correct? 13 A: Yes. 14 Q: And, again, just in your own words, describe what the 15 nature of that rigging operation was. 16 A: It was to set the crane up and to hoist machinery into 17 the building. 18 Q: Okay. And that's an existing high rise building? 19 A: Yes, it is. 20 Q: And what type of, generally, what type of machinery are 21 we talking about? 22 A: It would be air conditioning, cooling, you know, towers, 23 chillers. 24 Q: And was that to go on top of the building or into the 25 side of the building? Geneva Worldwide, Inc. 256 W 38 t h Street, 10 t h Floor, New York, NY 10018 SFM 007783 FILED: NEW YORK COUNTY CLERK 10/08/2018 09:01 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/08/2018 COSBAN - DIRECT - FODEMAN 1464 1 A: Inside the building on the side to the machinery room. 2 Q: Was this type of job unusual for you as a crane 3 operator? 4 A: No. 5 Q: Was it unusual for Skylift? 6 A: Nope. 7 Q: Is it unusual to occur, based on your experience of 30 8 years, is it unusual type of job that hap- happening in New York 9 City? 10 A: No. 11 Q: Were you involved in the planning of the job? 12 A: Well, not, not planning, but I would see the plans and 13 go over them at the day of the setup. 14 Q: Is that the crane placement drawing? 15 A: Yes. 16 Q: Okay. Is that something, who, do you know who prepared 17 that in this case? 18 A: It would be the engineer and, and Brad. 19 Q: And do you know who the engineer was on this, on this 20 job? 21 A: I believe it was Delgado Engineering. 22 Q: In addition to reviewing those plans, the crane 23 placement drawing, did you have any other role prior to May 31, 24 2015 in connection with this rigging operation? 25 A: I believe I, I did, months before pick that piece off Geneva Worldwide, Inc. 256 W 38 t h Street, 10 t h Floor, New York, NY 10018 SFM 007784 FILED: NEW YORK COUNTY CLERK 10/08/2018 09:01 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/08/2018 COSBAN - DIRECT - FODEMAN 1465 1 the truck when it got delivered to the yard. They would hire me 2 to go to their yard and, you know, take the pieces off. And then 3 Thursday before, I repacked it again and loaded it on the trailer 4 to go to the job. 5 Q: Okay. So you went to Skylift to ready the units that 6 were going to be hoisted on May 31st onto the delivery truck. 7 A: Yes. 8 Q: Did, I assume you used a crane to do that. Is that 9 correct? 10 A: Yes, a smaller crane, a cherry picker, yep. 11 Q: Okay. Was that crane that you utilized, you think it was 12 the Thursday prior? 13 A: Yes, 'cause they usually load out before the weekend and 14 it's usually Thursday. 15 Q: And this incident happened on a weekend. 16 A: Yes, sir. 17 Q: And the crane that you were using, that cherry picker, 18 did it have a scale? Was it equipped with a scale? 19 A: Yes, it is. 20 Q: And how accurate is that scale? 21 A: It's got to be accurate. It's 100 percent accurate. 22 Q: And did you obtain a weight on that Thursday? 23 A: Yes. It was 23,000 pounds. 24 Q: Is that consistent with the -- well, let me ask you 25 this. Do you, did you, would you have obtained a weight when the Geneva Worldwide, Inc. 256 W 38 t h Street, 10 t h Floor, New York, NY 10018 SFM 007785 FILED: NEW YORK COUNTY CLERK 10/08/2018 09:01 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/08/2018 COSBAN - DIRECT - FODEMAN 1466 1 unit was delivered? 2 ALJ GARCIA: Hold on. Let's clean up the 3 questioning. Did he obtain a weight of what? 4 MR. FODEMAN: Yeah. Thank you, Judge. 5 Q: I'm focused on the unit that actually fell that day. 6 You're familiar with that unit? 7 A: Yes. 8 Q: Okay. There were a number of pieces to be rigged into 9 the building that day? 10 A: Yes, I believe six pieces. 11 Q: And the last one was the one that fell. Is that 12 correct? 13 A: Correct. 14 Q: And so we can know what we're talking about. Can we 15 agree, we'll call that the chiller. 16 A: Okay. 17 Q: Is that a fair characterization of what fell? 18 A: Yes. 19 Q: Okay. The, the item that you, one of the items that you 20 lifted onto the, lifted off the delivery truck months before was, 21 did that include the chiller? 22 A: Yes, it did. 23 Q: Okay. And did you obtain a weight when the item was 24 initially delivered to Skylift's yard months prior? 25 A: Yes. And when I lifted it, it was already marked the Geneva Worldwide, Inc. 256 W 38 t h Street, 10 t h Floor, New York, NY 10018 SFM 007786 FILED: NEW YORK COUNTY CLERK 10/08/2018 09:01 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/08/2018 COSBAN - DIRECT - FODEMAN 1467 1 weight and when I lifted it, it did confirm the weight that was 2 already marked on the piece. 3 Q: Okay. And the same holds true for Thursday, prior to 4 the lift, you were able to obtain a weight of the chiller? 5 A: Yes. 6 Q: And, again, what was the weight of the chiller? 7 A: 23,000. 8 Q: And that was marked on the chiller itself in what, chalk 9 or something? 10 A: Magic marker, yep. 11 Q: Okay. When you lifted -- withdrawn. Are you familiar 12 with a term called center of gravity? 13 A: Yes, I am. 14 Q: And in your words, what is, what do you understand 15 center of gravity to mean? 16 A: It's where the piece would be the, the center of the 17 weight to make it, to make the piece, to find its center of 18 gravity so the lift would be stable. 19 Q: And were you able to ascertain the center of gravity 20 when you picked it up in Skylift's yard? 21 A: Yes. We picked it with no incident. It picked up 22 straight. It wasn't leaning any way. 23 Q: And what did that tell you? And we're talking about the 24 chiller. 25 A: Yes. Geneva Worldwide, Inc. 256 W 38 t h Street, 10 t h Floor, New York, NY 10018 SFM 007787 FILED: NEW YORK COUNTY CLERK 10/08/2018 09:01 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/08/2018 COSBAN - DIRECT - FODEMAN 1468 1 Q: What did that tell you about where the center of gravity 2 was for the chiller? 3 A: That it would be in the center of the piece. There was 4 no opposing force pulling it in a certain way so it seemed stable 5 in the middle. 6 Q: And, and just to make sure we're clear on this, if you 7 had lifted it off the truck bed or onto the truck bed and it was 8 tilted, that would tell you what about the center of gravity? 9 A: That the center of gravity is off. 10 Q: Meaning not in the middle. 11 A: Oh, correct, yes. 12 Q: Did the, did the piece pick level each time you picked 13 it up in Skylift's yard? 14 A: Yes. 15 Q: If it didn’t, would you have conveyed that information 16 to Brad Allecia? 17 A: Or, yes, or one of his men. 18 Q: Would one of his, would his men be present when you did 19 that, when you lifted the items? 20 A: Yes. They're the ones that rig it in the yard. 21 Q: Understood. I want to take you to the day of the actual 22 incident, May 31st. Can you tell the Court how that day actually 23 began for you? 24 A: Yes. We left the crane's yard, it must have been 3:00 25 a.m. Bring the crane to the City. We would pull up. At that Geneva Worldwide, Inc. 256 W 38 t h Street, 10 t h Floor, New York, NY 10018 SFM 007788 FILED: NEW YORK COUNTY CLERK 10/08/2018 09:01 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/08/2018 COSBAN - DIRECT - FODEMAN 1469 1 point, Brad would meet Brad's guys and Brad or Frank, whoever's 2 there, and we'd go over the plan, over the placement of where the 3 crane would be. 4 Q: Let me stop you there. On this particular day, did you 5 have an understanding of who would be in charge of the rigging 6 operation? 7 A: When I, yes, when I got there, yes. 8 Q: And who, who, what was your understanding of who was in 9 charge that day? 10 A: It was Frank. 11 Q: Okay. Was it unusual that Frank would be in charge? 12 A: No. 13 Q: Who, when you said, we would go to the street, who, 14 who'd you travel with or who were you with? 15 A: I have a partner in the crane, it would be my oiler. He 16 would drive the crane and assist me in the building of the crane 17 and the placement and assist me. 18 Q: And you said the term is oiler? Is that correct? 19 A: Yes. 20 Q: O-I-L-E-R? 21 A: Yes. 22 Q: Do you recall, not exactly, but approximately what time 23 it was that you got to the, the area of Madison Avenue where this 24 incident happened? 25 A: I believe it was about 4:00 a.m. Geneva Worldwide, Inc. 256 W 38 t h Street, 10 t h Floor, New York, NY 10018 SFM 007789 FILED: NEW YORK COUNTY CLERK 10/08/2018 09:01 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/08/2018 COSBAN - DIRECT - FODEMAN 1470 1 Q: And who was present when you got there? 2 A: It was Frank, Skylift's, Skylift's guys and DOB. 3 Q: And you say, DOB. A specific individual from DOB? 4 A: Yes. John Moran, the inspector. 5 Q: He's an inspector for the Cranes and Derricks Division? 6 A: Yes. 7 Q: Did you know John Moran prior to this? 8 A: Yes. 9 Q: Had you been on sites where he was serving as the DOB's 10 inspector? 11 A: Yep, a lot of times. 12 Q: What happened when you arrived and the others arrived? 13 What was the first step? 14 A: We'd meet and then we look at the plans of, like I said, 15 the placement of the crane would show where the center pin would 16 be, you know, the building of the crane. We had to put our 17 outriggers down so we had to put steel mats for the outriggers so 18 -- 19 Q: Of the crane, of the crane? 20 A: -- of the crane, yes. So there's a lot of planning and 21 it's all on Delgado's plans. And we take measurements to make 22 sure the placement of the crane is correct. 23 Q: Okay. And was the inspector there for that part of the 24 operation? 25 A: Yes. He's the one that make