Preview
FILED: KINGS COUNTY CLERK 07/26/2023 10:43 PM INDEX NO. 523020/2020
NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 07/26/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
--------------------------------------------------------------------------X
SARAH M. LANZA, Memorandum of Law in
Response (Opposition)
Plaintiff, Index No. 523020/2020
-against-
SANTO MERCEDES BAEZ and GUMA CONSTRUCTION,
Defendants.
--------------------------------------------------------------------------X
The Plaintiff’s counsel hereby submits this Memorandum of Law in response (opposition) to the
defendants movants’ memorandum of law.
Defendants’ memorandum of law is an unsworn affirmation laden with misstatements of
fact and misrepresentations as to the content of the record before the court. It was written in the
hope of my filing an insufficient opposition full of deficiencies which defendants’ memorandum
of law would end up addressing, even though the defendants’ memorandum of law was written
months before the filing of plaintiff’s opposition.
Defendants set forth: “Plaintiff has not made a showing of any injury that satisfies either
of these two categories of §5102(d) of the New York Insurance Law”.
Technically, as I didn’t file anything, or even know about the defendants’ motion when
their memorandum of law was drafted, I suppose it is more of a misstatement, but, regardless,
that contention of defendants’ is wholly without merit.
Then there is this statement from defendants’ memorandum of law:
“Furthermore, plaintiff’s claimed orthopedic injuries to her left shoulder, lumbar spine, cervical
spine, left hip, and left knee, lack the requisite proof that the alleged injuries are permanent,
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significant, and not slight, and are therefore insufficient to establish that the alleged injuries
constitute either a permanent consequential limitation of use or a significant limitation of use.”
Supporting the merits section of my affirmation in opposition are the affirmations and
records of an orthopedic surgeon, a biomechanical expert’s sworn and sworn to before a notary
public report, clearly showing causal relation, seriousness, the differentiation of new and old
injuries, 2 prognosis, and an address of a purported gap of treatment (March 11th, 2020 to
5/4/2020, during the height of the Covid crises).
In addition, the submissions of the defendants’ have raised triable issues of fact on their
own, such as by including these examples:
“Her performance on neurobehavioral status examination was within normal or non-clinical
limits with the exception of a deficit for comprehension of tasks requiring simple reasoning.” Per
the defendants purported psychologists inadmissible report.
The defendants’ radiologist writes in his report regarding the plaintiff’s left shoulder:
“These aforementioned internal derangements are indeterminate for chronicity and causality.”
That means he doesn’t know when the shoulder injuries occurred or what caused them.
Also, the defendants radiologist completely contradicts the defendants theory that the plaintiff’s
claimed brain injuries pre-dated her accident.
He further writes:
“In conclusion, the MRI of the brain performed on 12/03/2018 reveals no significant intracranial
abnormality. THIS EXAMINATION PREDATES THE ACCIDENT ON 03/11/2020”
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But, that is not it, he affirms that several other prior brain scans don’t show trauma either, and
writes:
“In conclusion, the MR spectroscopy of the brain performed on 12/03/2018 reveals major
metabolite ratios to be within normal limits within the deep white matter of the cerebral
hemispheres, when accounting for technical errors. THIS EXAMINATION PREDATES THE
ACCIDENT ON 03/11/2020.”
and,
“In conclusion, the MR venogram of the brain performed on 12/03/2018 reveals no evidence of
posttraumatic injury to the major dural venous sinuses of the brain. THIS EXAMINATION
PREDATES THE ACCIDENT ON 03/11/2020.”
and,
“In conclusion, the DTI study of the brain performed on 12/03/2018 is within normal limits and
reveals no evidence of significant white matter microstructural disruption, when accounting for
technical error regarding ROI selection involving the right centrum semiovale deep white matter.
THIS EXAMINATION PREDATES THE ACCIDENT ON 03/11/2020”
Four times he contradicted the defendants’ theory of pre-existing brain damage, which is
more than sufficient to create a triable issue of fact.
Regarding the post-accident report, he attempts to mislead everyone who would read his
report by stating: “In conclusion, the DTI study of the brain performed on 05/18/2020 is within
normal limits and reveals no evidence of significant white matter microstructural disruption.”
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How is it that a radiologist can determine what is and is not “Significant” white matter
disruption?
He obviously noted evidence of white matter microstructural disruption, and tried to
trick the court into believing that he found none, by slipping in the word “significant” which he
is not qualified to do in any event.
Accordingly, defendants’ motion should not even reach its purported merits.
However, even if the Court found that the defendants met their burdens, which it
shouldn’t for the reasons extensively addressed in the affirmation in opposition, the plaintiff’s
have raised material issues of fact via the affirmations of an Orthopedic surgeon, the sworn
report of a Biomechanic expert, and a recent affirmation of the Plaintiff’s.
Some of the law that shows why that is true is set forth below.
A defendant seeking summary judgment must establish prima facie entitlement to such
relief as a matter of law by affirmatively demonstrating, with admissible evidence, the merits of
their defense, and not merely by pointing to gaps in plaintiff's proof. See Mondello v DiStefano,
16 AD3d 637, 638 [2d Dept 2005]; Peskin v New York City Transit Authority, 304 AD2d 634,
634 [2d Dept 2003]).
As set forth by the Court of Appeals of the State of New York:
"As we have stated frequently, the 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 absence of any material issues of
fact (Winegrad v New York Univ. Med. Center, 64 N.Y.2d 851,
853; Zuckerman v City of New York, 49 N.Y.2d 557, 562;
Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395,
404). Failure to make such prima facie showing requires a denial
of the motion, regardless of the sufficiency of the opposing papers
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(Winegrad v New York Univ. Med. Center, supra, at p 853)."
Zuckerman v City of New York, 68 NY2d 322, 324 [1980]).
The safeguards afforded at trials are to be employed in summary judgment motion practice.
As well and succinctly stated by one court, albeit one of lesser jurisdiction: "Summary judgment
is the functional equivalent of a trial". Katz v Board of Mgrs., One Union Sq. E. Condominium,
NY, N.Y. 2009 NY Slip Op 52477(U), 25 Misc 3d 1238 (2009.)
Without the preservation of trial safeguards in summary judgment motion litigation, due process
would be obviously jeopardized.
As comprehensively summed up by one court in the Second Department:
“Summary judgment is a drastic remedy that deprives a litigant of his
or her day in court and should only be employed when there is no
doubt as to the absence of triable issues of material fact (Kolivas v
Kirchoff, 14 AD3d 493, 787 N.Y.S.2d 392 [2d Dept 2005]; see also
Andre v Pomeroy, 35 NY2d 361, 364, 320 N.E.2d 853, 362 N.Y.S.2d
131 [1974]). "[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 [*6] to demonstrate the absence of
any material issues of fact" (Manicone v City of New York, 75 AD3d
535, 537, 905 N.Y.S.2d 640 [2d Dept 2010], quoting Alvarez v Prospect
Hosp., 68 NY2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d 923 [1986]; see
also Zuckerman, 49 NY2d at 562; Winegrad v New York Univ. Med.
Ctr., 64 NY2d 851, 853, 476 N.E.2d 642, 487 N.Y.S.2d 316 [1985];
Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404, 144
N.E.2d 387, 165 N.Y.S.2d 498 [1957], rearg denied 3 N.Y.2d 941
[1957]). The motion should be granted only when it is clear that no
material and triable issue of fact is presented (Di Menna & Sons v
City of New York, 301 NY 118, 92 N.E.2d 918 [1950]). If the existence
of an issue of fact is even arguable, summary judgment must be
denied (Phillips v Kantor & Co., 31 NY2d 307, 291 N.E.2d 129, 338
N.Y.S.2d 882 [1972]; Museums at Stony Brook v Vill. Patchogue Fire
Dep't, 146 A.D.2d 572, 536 N.Y.S.2d 177 [2d Dept 1989]).
Furthermore, in determining the outcome of the motion, the court is
required to accept the opponents' contentions as true and resolve all
inferences in the manner most favorable to the opponents (Pierre-
Louis v DeLonghi America, Inc., 66 AD3d 859, 862, 887 N.Y.S.2d 628
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[2d Dept 2009], citing Nicklas v Tedlen Realty Corp., 305 A.D.2d 385,
759 N.Y.S.2d 171 [2d Dept 2003]; Henderson v City of New York, 178
AD2d 129, 130, 576 N.Y.S.2d 562 [1st Dept 1991]; see also
Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgmt., L.P.,
7 N.Y.3d 96, 105-106, 850 N.E.2d 653, 817 N.Y.S.2d 606 [2006];
Akseizer v Kramer, 265 AD2d 356, 696 N.Y.S.2d 849 [2d Dept 1999];
McLaughlin v. Thaima Realty Corp., 161 AD2d 383, 384, 555 N.Y.S.2d
125 [1st Dept 1990]; [**6] Gibson v American Export Isbrandtsen
Lines, 125 AD2d 65, 74, 511 N.Y.S.2d 631 [1st Dept 1987]; Strychalski
v Mekus, 54 AD2d 1068, 1069, 388 N.Y.S.2d 969 [4th Dept 1976]).
Moreover, a party seeking summary judgment has the burden of
establishing prima facie entitlement to judgment as a matter of law by
affirmatively demonstrating the merit of a claim or defense and not
by simply pointing to gaps in the proof of an opponent (Nationwide
Prop. Cas. v Nestor, 6 AD3d 409, 410, 774 N.Y.S.2d 357 [2d Dept
2004]; Katz v PRO Form Fitness, 3 AD3d 474, 475, 769 N.Y.S.2d 903
[2d Dept 2004]; Kucera v Waldbaums Supermarkets, 304 AD2d 531,
532, 758 N.Y.S.2d 133 [2d Dept 2003]). Lastly, "[a] motion for
summary judgment 'should not be granted where the facts are in
dispute, where conflicting inferences may be drawn from the evidence,
or where there are issues of credibility" (Ruiz v Griffin, 71 AD3d 1112,
1115, 898 N.Y.S.2d 590 [2d Dept 2010], qungoting Scott v Long Is.
Power Auth., 294 AD2d 348, 741 N.Y.S.2d 708 [2d Dept 2002]; see also
Benetatos v Comerford, 78 AD3d 750, 751-752, 911 N.Y.S.2d 155 [2d
Dept 2010]; Lopez v Beltre, 59 AD3d 683, 685, 873 N.Y.S.2d 726 [2d
Dept 2009]; Baker v D.J. Stapleton, Inc., 43 AD3d 839, 841 N.Y.S.2d
382 [2d Dept 2007]).”(Fulmore v Palash, 2020 NY Slip Op 30653[U],
*5-6 [Sup Ct, Kings County 2020])”
As demonstrated above, the defendants’ contentions, and their evidentiary presentations,
are not consistent with the state of the law in New York State, and their motion must therefore be
denied.
Wherefore, may the motion of the defendants’ be denied in all respects.
Mark Getzoni
_______________________
Mark Peter Getzoni, Esq.
Dated: Forest Hills, NY
July 26th, 2023
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WORD COUNT CERTIFICATION
I Mark P. Getzoni, Esq., an attorney licensed to practice law before the Courts of
New York State, affirm the following under the penalties of perjury:
The forgoing sworn and notarized report of James Pugh is 1,698 words, exclusive of the
signature block, date, and caption. Counted with a word processor word count function. It is in a
12 point Times Roman serified double spaced font, except for single spaced quoting.
The forgoing affirmation in opposition is therefore compliant with Part 202 Uniform Civil Rules
for the Supreme Court & the County Court, Rule 202.5-a and to Uniform Rules §202.8-b
MaRK GETZONI
_________________________
Mark Peter Getzoni, Esq.
Dated: Forest Hills, NY
July 26th, 2023
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Preview
FILED: KINGS COUNTY CLERK 07/26/2023 10:43 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 07/26/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS --------------------------------------------------------------------------X SARAH M. LANZA, Memorandum of Law in Response (Opposition) Plaintiff, Index No. 523020/2020 -against- SANTO MERCEDES BAEZ and GUMA CONSTRUCTION, Defendants. --------------------------------------------------------------------------X The Plaintiff’s counsel hereby submits this Memorandum of Law in response (opposition) to the defendants movants’ memorandum of law. Defendants’ memorandum of law is an unsworn affirmation laden with misstatements of fact and misrepresentations as to the content of the record before the court. It was written in the hope of my filing an insufficient opposition full of deficiencies which defendants’ memorandum of law would end up addressing, even though the defendants’ memorandum of law was written months before the filing of plaintiff’s opposition. Defendants set forth: “Plaintiff has not made a showing of any injury that satisfies either of these two categories of §5102(d) of the New York Insurance Law”. Technically, as I didn’t file anything, or even know about the defendants’ motion when their memorandum of law was drafted, I suppose it is more of a misstatement, but, regardless, that contention of defendants’ is wholly without merit. Then there is this statement from defendants’ memorandum of law: “Furthermore, plaintiff’s claimed orthopedic injuries to her left shoulder, lumbar spine, cervical spine, left hip, and left knee, lack the requisite proof that the alleged injuries are permanent, 1 1 of 7 FILED: KINGS COUNTY CLERK 07/26/2023 10:43 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 07/26/2023 significant, and not slight, and are therefore insufficient to establish that the alleged injuries constitute either a permanent consequential limitation of use or a significant limitation of use.” Supporting the merits section of my affirmation in opposition are the affirmations and records of an orthopedic surgeon, a biomechanical expert’s sworn and sworn to before a notary public report, clearly showing causal relation, seriousness, the differentiation of new and old injuries, 2 prognosis, and an address of a purported gap of treatment (March 11th, 2020 to 5/4/2020, during the height of the Covid crises). In addition, the submissions of the defendants’ have raised triable issues of fact on their own, such as by including these examples: “Her performance on neurobehavioral status examination was within normal or non-clinical limits with the exception of a deficit for comprehension of tasks requiring simple reasoning.” Per the defendants purported psychologists inadmissible report. The defendants’ radiologist writes in his report regarding the plaintiff’s left shoulder: “These aforementioned internal derangements are indeterminate for chronicity and causality.” That means he doesn’t know when the shoulder injuries occurred or what caused them. Also, the defendants radiologist completely contradicts the defendants theory that the plaintiff’s claimed brain injuries pre-dated her accident. He further writes: “In conclusion, the MRI of the brain performed on 12/03/2018 reveals no significant intracranial abnormality. THIS EXAMINATION PREDATES THE ACCIDENT ON 03/11/2020” 2 2 of 7 FILED: KINGS COUNTY CLERK 07/26/2023 10:43 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 07/26/2023 But, that is not it, he affirms that several other prior brain scans don’t show trauma either, and writes: “In conclusion, the MR spectroscopy of the brain performed on 12/03/2018 reveals major metabolite ratios to be within normal limits within the deep white matter of the cerebral hemispheres, when accounting for technical errors. THIS EXAMINATION PREDATES THE ACCIDENT ON 03/11/2020.” and, “In conclusion, the MR venogram of the brain performed on 12/03/2018 reveals no evidence of posttraumatic injury to the major dural venous sinuses of the brain. THIS EXAMINATION PREDATES THE ACCIDENT ON 03/11/2020.” and, “In conclusion, the DTI study of the brain performed on 12/03/2018 is within normal limits and reveals no evidence of significant white matter microstructural disruption, when accounting for technical error regarding ROI selection involving the right centrum semiovale deep white matter. THIS EXAMINATION PREDATES THE ACCIDENT ON 03/11/2020” Four times he contradicted the defendants’ theory of pre-existing brain damage, which is more than sufficient to create a triable issue of fact. Regarding the post-accident report, he attempts to mislead everyone who would read his report by stating: “In conclusion, the DTI study of the brain performed on 05/18/2020 is within normal limits and reveals no evidence of significant white matter microstructural disruption.” 3 3 of 7 FILED: KINGS COUNTY CLERK 07/26/2023 10:43 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 07/26/2023 How is it that a radiologist can determine what is and is not “Significant” white matter disruption? He obviously noted evidence of white matter microstructural disruption, and tried to trick the court into believing that he found none, by slipping in the word “significant” which he is not qualified to do in any event. Accordingly, defendants’ motion should not even reach its purported merits. However, even if the Court found that the defendants met their burdens, which it shouldn’t for the reasons extensively addressed in the affirmation in opposition, the plaintiff’s have raised material issues of fact via the affirmations of an Orthopedic surgeon, the sworn report of a Biomechanic expert, and a recent affirmation of the Plaintiff’s. Some of the law that shows why that is true is set forth below. A defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively demonstrating, with admissible evidence, the merits of their defense, and not merely by pointing to gaps in plaintiff's proof. See Mondello v DiStefano, 16 AD3d 637, 638 [2d Dept 2005]; Peskin v New York City Transit Authority, 304 AD2d 634, 634 [2d Dept 2003]). As set forth by the Court of Appeals of the State of New York: "As we have stated frequently, the 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 absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 N.Y.2d 851, 853; Zuckerman v City of New York, 49 N.Y.2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers 4 4 of 7 FILED: KINGS COUNTY CLERK 07/26/2023 10:43 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 07/26/2023 (Winegrad v New York Univ. Med. Center, supra, at p 853)." Zuckerman v City of New York, 68 NY2d 322, 324 [1980]). The safeguards afforded at trials are to be employed in summary judgment motion practice. As well and succinctly stated by one court, albeit one of lesser jurisdiction: "Summary judgment is the functional equivalent of a trial". Katz v Board of Mgrs., One Union Sq. E. Condominium, NY, N.Y. 2009 NY Slip Op 52477(U), 25 Misc 3d 1238 (2009.) Without the preservation of trial safeguards in summary judgment motion litigation, due process would be obviously jeopardized. As comprehensively summed up by one court in the Second Department: “Summary judgment is a drastic remedy that deprives a litigant of his or her day in court and should only be employed when there is no doubt as to the absence of triable issues of material fact (Kolivas v Kirchoff, 14 AD3d 493, 787 N.Y.S.2d 392 [2d Dept 2005]; see also Andre v Pomeroy, 35 NY2d 361, 364, 320 N.E.2d 853, 362 N.Y.S.2d 131 [1974]). "[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 [*6] to demonstrate the absence of any material issues of fact" (Manicone v City of New York, 75 AD3d 535, 537, 905 N.Y.S.2d 640 [2d Dept 2010], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d 923 [1986]; see also Zuckerman, 49 NY2d at 562; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853, 476 N.E.2d 642, 487 N.Y.S.2d 316 [1985]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404, 144 N.E.2d 387, 165 N.Y.S.2d 498 [1957], rearg denied 3 N.Y.2d 941 [1957]). The motion should be granted only when it is clear that no material and triable issue of fact is presented (Di Menna & Sons v City of New York, 301 NY 118, 92 N.E.2d 918 [1950]). If the existence of an issue of fact is even arguable, summary judgment must be denied (Phillips v Kantor & Co., 31 NY2d 307, 291 N.E.2d 129, 338 N.Y.S.2d 882 [1972]; Museums at Stony Brook v Vill. Patchogue Fire Dep't, 146 A.D.2d 572, 536 N.Y.S.2d 177 [2d Dept 1989]). Furthermore, in determining the outcome of the motion, the court is required to accept the opponents' contentions as true and resolve all inferences in the manner most favorable to the opponents (Pierre- Louis v DeLonghi America, Inc., 66 AD3d 859, 862, 887 N.Y.S.2d 628 5 5 of 7 FILED: KINGS COUNTY CLERK 07/26/2023 10:43 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 07/26/2023 [2d Dept 2009], citing Nicklas v Tedlen Realty Corp., 305 A.D.2d 385, 759 N.Y.S.2d 171 [2d Dept 2003]; Henderson v City of New York, 178 AD2d 129, 130, 576 N.Y.S.2d 562 [1st Dept 1991]; see also Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgmt., L.P., 7 N.Y.3d 96, 105-106, 850 N.E.2d 653, 817 N.Y.S.2d 606 [2006]; Akseizer v Kramer, 265 AD2d 356, 696 N.Y.S.2d 849 [2d Dept 1999]; McLaughlin v. Thaima Realty Corp., 161 AD2d 383, 384, 555 N.Y.S.2d 125 [1st Dept 1990]; [**6] Gibson v American Export Isbrandtsen Lines, 125 AD2d 65, 74, 511 N.Y.S.2d 631 [1st Dept 1987]; Strychalski v Mekus, 54 AD2d 1068, 1069, 388 N.Y.S.2d 969 [4th Dept 1976]). Moreover, a party seeking summary judgment has the burden of establishing prima facie entitlement to judgment as a matter of law by affirmatively demonstrating the merit of a claim or defense and not by simply pointing to gaps in the proof of an opponent (Nationwide Prop. Cas. v Nestor, 6 AD3d 409, 410, 774 N.Y.S.2d 357 [2d Dept 2004]; Katz v PRO Form Fitness, 3 AD3d 474, 475, 769 N.Y.S.2d 903 [2d Dept 2004]; Kucera v Waldbaums Supermarkets, 304 AD2d 531, 532, 758 N.Y.S.2d 133 [2d Dept 2003]). Lastly, "[a] motion for summary judgment 'should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" (Ruiz v Griffin, 71 AD3d 1112, 1115, 898 N.Y.S.2d 590 [2d Dept 2010], qungoting Scott v Long Is. Power Auth., 294 AD2d 348, 741 N.Y.S.2d 708 [2d Dept 2002]; see also Benetatos v Comerford, 78 AD3d 750, 751-752, 911 N.Y.S.2d 155 [2d Dept 2010]; Lopez v Beltre, 59 AD3d 683, 685, 873 N.Y.S.2d 726 [2d Dept 2009]; Baker v D.J. Stapleton, Inc., 43 AD3d 839, 841 N.Y.S.2d 382 [2d Dept 2007]).”(Fulmore v Palash, 2020 NY Slip Op 30653[U], *5-6 [Sup Ct, Kings County 2020])” As demonstrated above, the defendants’ contentions, and their evidentiary presentations, are not consistent with the state of the law in New York State, and their motion must therefore be denied. Wherefore, may the motion of the defendants’ be denied in all respects. Mark Getzoni _______________________ Mark Peter Getzoni, Esq. Dated: Forest Hills, NY July 26th, 2023 6 6 of 7 FILED: KINGS COUNTY CLERK 07/26/2023 10:43 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 07/26/2023 WORD COUNT CERTIFICATION I Mark P. Getzoni, Esq., an attorney licensed to practice law before the Courts of New York State, affirm the following under the penalties of perjury: The forgoing sworn and notarized report of James Pugh is 1,698 words, exclusive of the signature block, date, and caption. Counted with a word processor word count function. It is in a 12 point Times Roman serified double spaced font, except for single spaced quoting. The forgoing affirmation in opposition is therefore compliant with Part 202 Uniform Civil Rules for the Supreme Court & the County Court, Rule 202.5-a and to Uniform Rules §202.8-b MaRK GETZONI _________________________ Mark Peter Getzoni, Esq. Dated: Forest Hills, NY July 26th, 2023 7 7 of 7