Preview
FILED: ERIE COUNTY CLERK 02/03/2021 12:12 PM INDEX NO. 809591/2020
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 02/03/2021
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
UTICA NATIONAL INSURANCE COMPANY OF
OHIO AS SUBROGEE OF SPRINGVILLE-GRIFFITH
INSTITUTE CENTRAL SCHOOL DISTRICT, AFFIDAVIT
Plaintiff, Index No. 809591/2020
-vs-
CONCEPT CONSTRUCTION CORP.,
ARRIC CORP.,
GUARD CONTRACTING CORP., and
STROMECKI ENGINEERS, P.C.,
Defendants.
STATE OF NEW YORK)
COUNTY OF ERIE ) SS.:
CITY OF BUFFALO )
RICHARD A. CLACK, being duly sworn, deposes and says:
1. I am an attorney at law, duly authorized to practice in the State of New
York, and am the attorney for the defendant, Guard Contracting Corp. ("Guard").
2. I make this affidavit in support of Guard's motion for:
a. An order, pursuant to CPLR §§3211 and 3212, granting summary
judgment dismissing the plaintiff's Complaint as against Guard, with prejudice;
b. An order, pursuant to CPLR §§3211 and 3212, granting summary
co-defendants'
judgment dismissing the cross-claims against Guard, with prejudice;
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c. An order granting Guard such other, further and different relief as
to the Court seems just, proper and equitable, together with the costs and
disbursements of this motion.
BRIEF BACKGROUND
3. of brief background, the plaintiff, Utica National Insurance
By way
Company of Ohio ("Utica National"), brought this subrogation to recover alleged
damages it claims to have paid to its insured, the Springville-Griffith Institute Central
School District ("Springville-Griffith"), arising out of an incident that occurred on or
about July 4, 2019, wherein a portion of a building collapsed while undergoing work in
connection with a public construction project ("the Incident"). Springville-Griffith was
the owner of the project, which was known as, "Springville-Griffith Institute Central
School District - Capital Project - PTECH located at 307 Newman in
Academy", Street,
Springville, New York ("the Project").
4. Springville-Griffith had contracted with the defendant, Concept
Construction Corp. ("Concept"), to perform the general construction work for the
Project. Concept then subcontracted certain portions of its work to the defendant, Arric
Corp. ("Arric"). Arric, in turn, subcontracted certain portions of its work to Guard, and
Guard hired the defendant, Stromecki Engineers, P.C. ("Stromecki"), to perform certain
engineering work in connection with Guard's work on the Project. (Ex. A, Guard Aff.,
¶5)
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PROCEDURAL POSTURE
5. Utica National commenced this action by electronically filing a Summons
and an uverified Complaint in the Erie County Clerk's Office on August 31, 2020. The
Summons and Complaint was then served upon Guard, and Utica National's attorneys
gave extensions to Guard and to Arric to answer or otherwise move with respect to the
Complaint that currently extend through February 5, 2021. Guard and Arric have not
filed answers to the Complaint, but Concept and Stromecki have both filed answers.
Both of their answers contain cross-claims against Guard. (A true copy of Utica
National's Summons and Complaint is annexed hereto as Exhibit B, and true copies of
Concept's and Stromecki's answers to the Complaint are annexed hereto as Exhibits C
and D, respectively.)
6. There has been no the parties to date.
discovery among
UTICA NATIONAL'S COMPLAINT
7. According its Complaint (Ex. B), Utica National issued a policy of
insurance to Springville-Griffith which insured against damages to Springville-Griffith's
property at 307 Newman Street, Springville, New York. (Ex. B, 14) Utica National
further alleges that it paid Springville-Griffith $152,558.88 under its policy for the
damages to Springville-Griffith's property at that address as a result of the Incident.
(Ex. Utica National brought this as subrogee of Springville-
B, ¶¶20, 23-24) action,
Griffith, to recover the amount it paid to Springville-Griffith, alleging that the Incident
was caused by the negligence of the defendants. (Ex. B, ¶¶20-25)
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GUARD'S MOTION
8. Guard is making this motion because, under the contractual documents
among and governing the parties herein for the Project, Utica National had no right to
bring this action. The contract documents for the Project were, upon information and
belief, prepared on behalf of Springville-Griffith its Architect or Construction
by
Manager. contain a broad waiver of subrogation provision wherein Springville-
They
Griffith and Concept and all other parties involved in the Project were required to
waive, and did, in fact, waive, their rights of subrogation against all other parties. Thus,
Utica National, which stands in the shoes of Springville-Griffith in asserting its claim
herein (Blue Cross and Blue Shield of N.]., Inc. v. Phillip Morris USA, Inc., 3 N.Y.2d 200, 785
N.Y.S.2d 399, 818 N.E.2d 1140 (2004)), is bound by these provisions and is barred and
precluded from proceeding with this action.
9. Annexed hereto as Exhibit A is an affidavit of Christopher C. Guard, the
President of Guard. In paragraphs 5 and 6 his affidavit, Mr. Guard identifies and
annexes as exhibits various contracts among the parties. Annexed as Exhibit E is a copy
of Springville-Griffith's contract with Concept, and attached as Exhibit F is a copy of the
general conditions to that contract. A copy of Concept's contract with Arric is annexed
as Exhibit G, and a copy of Arric's contract with Guard is annexed as Exhibit H. Guard
did not have a written contract with Stromecki. Guard hired Stromecki on a "time and
materials"
basis, wherein it requested Stromecki to perform certain engineering work,
and Stromecki billed Guard for the time it spent and materials it utilized in performing
that work.
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10. Springville-Griffith's contract with Concept consisted of an American
Institute of Architects ("AIA") Standard Form of Agreement Between Owner and
Contractor (Ex. E) and a set of General Conditions of the Contract of
("Agreement")
Construction ("General Conditions") (Ex. F). Article 9 of the Agreement (Ex. E)
enumerates the contract documents, and states that they include the General Conditions
(Ex. F), General Conditions, if any, Specifications, Drawings and
Supplementary
various enumerated Addenda. There were no General Conditions on
Supplementary
the Project. I have reviewed all of the contract documents, and the only contract
documents that are relevant to the issues involved in this motion are the Agreement
(Ex. E) and General Conditions (Ex. F).
11. Article 11 of the General Conditions (Ex. F), relating to "Insurance and
Bonds", contains the following provision:
11.3.7 Waivers of Subrogation. The Owner and Contractor
waive all rights against (1) each other and any of their
respective subcontractors, sub-subcontractors, agents and
employees, and (2) the Construction Manager, Construction
Manager's consultants, Architect, Architect's consultants,
separate contractors described in Article 6, if any, and any of
their respective subcontractors, sub-subcontractors, agents,
and employees, for damages caused fire or other causes
by
of loss to the extent of proceeds under property insurance
obtained pursuant to this Section 11.3 or other property
insurance applicable to the Work, except such rights as the
Owner and Contractor may have to the proceeds of such
insurance held by the Owner. The Owner or Contractor, as
appropriate, shall require of the Construction Manager,
Construction Manager's consultants, Architect, Architect's
consultants, Owner's separate contractors described in
Article 6, if any, and any of their respective subcontractors,
sub-subcontractors, agents, and employees, by appropriate
written agreements, similar waivers each in favor of other
parties enumerated in this Section 11.3.7. The policies must
provide such waivers of subrogation endorsement or
by
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otherwise. A waiver of subrogation is effective as to a
person or even though that person or entity would
entity
otherwise have a duty of indemnification, contractual or
otherwise, did not pay the insurance premium directly or
indirectly, and whether or not the person or entity has an
insurable interest in the property damaged.
12. As the Court can see from the first sentence of Section 11.3.7, "The
Owner"
(Springville-Griffith) has clearly and unequivocally waived its subrogation
"Contractor" sub-
rights against the (Concept) and all of its subcontractors and
subcontractors, which include Arric, Guard and Stromecki. This is obviously a very
broad provision which is intended to be binding upon every type of party involved in
the Project and to accomplish a complete waiver of rights of subrogation by all of them
as against each other with respect to property damage claims covered by insurance. It
binds the owner and contactor, and all of their subcontractors, sub-subcontractors
construction managers, architects and consultants involved in the Project. (See, Hodgson
v. Isolatek Int'l Corp., 300 A.D.2d 1051, 752 N.Y.S.2d 767 (4th Dept. 2002), wherein the
Fourth Department held that a very similar waiver of subrogation provision barred and
precluded subrogation against not the general contractor, its subcontractors and
only
sub-subcontractors, but also hired consultants that were not contractors or
subcontractors.)
13. Section 11.3.7 is unambiguous and thus this Court can decide the
construction of Section 11.3.7 as a question of law, because it is well settled that, "On a
motion for summary judgment, the construction of an unambiguous contract is a
question of law for the court to pass on (Mallad Constr. Corp. v. County Fed. Sau. & Loan
96)."
Assn, 32 N.Y.2d 285, 291, 344 N.Y.S.2d 925, 298 N.E.2d Lake Construction &
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Development Corporation v. City of New York, 211 A.D.2d 514, 515, 621 N.Y.S.2d 337 (1st
Dept. 1995).
14. Section 11.3.7 is mirrored in Concept's contract with Arric (Ex. G) and in
Arric's contract with Guard (Ex. H). In Concept's contract with Arric (Ex. G), the terms
and conditions of the prime contract between Springville-Griffith and Concept are
incorporated by reference. (Ex. G., at pp. 1 and 11) In addition, a waiver of subrogation
rights is contained in Section 13.7 of the General Conditions for Subcontract and is also
required in the page of insurance requirements that are attached to and part of the
contract. In Arric's contract with Guard (Ex. H), the prime contract between
Springville-Griffith and Concept and the other contract documents enumerated in that
contract are enumerated as part of the contract between Arric and Guard. (Ex. H.,
Article 16) In addition, a waiver of subrogation rights is contained in Section 13.8 and is
also required on page 2 of the Insurance Requirements that are attached and part of the
contract.
15. Under Section 11.3.7, if any insurance carrier for any of the parties
involved in the Project pays amounts for covered property damage, it cannot assert a
subrogation claim or bring an action against any other party involved in the Project.
The insurance carrier must absorb the loss itself.
16. As a consequence of the foregoing, Utica National is barred and precluded
from bringing this subrogation action as subrogee of Springville-Griffith, because
Springville Griffith waived its rights of subrogation against all other parties involved in
the Project. Utica National stands in the shoes and is bound Springville-
Again, of, by,
Griffith's contractual obligations with respect to the Project. Moreover, Utica National
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did not disclose in its Complaint (Ex. B) whether its policy of insurance with
Springville-Griffith that it is basing this action upon contains a waiver of subrogation
provision as required by Section 11.3.7.
17. Accordingly, Guard is entitled to an order, pursuant to CPLR §§3211 and
3212, judgment the plaintiff's Complaint as against
granting summary dismissing
Guard, with prejudice.
18. In addition, for the same reasons, Guard is entitled to an order, pursuant
co-defendants'
to CPLR §§3211 and 3212, granting summary judgment dismissing the
cross-claims asserted against with prejudice. As shown the co-
Guard, herein,
defendants were also parties involved in the Project, and also waived their rights
they
of subrogation against all other parties involved in the Project for the type of claim
asserted in this action. Thus, are barred and precluded from asserting cross-claims
they
against Guard.
CONCLUSION
19. In view of the foregoing, I respectfully request this Honorable Court to
grant:
a. An order, pursuant to CPLR §§3211 and 3212, granting summary
judgment dismissing Utica National's Complaint as against Guard, with prejudice;
b. An order, pursuant to CPLR §§3211 and 3212, granting summary
co-defendants'
judgment the cross-claims against Guard, with prejudice;
dismissing
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c. An order
granting Guard such other, further and different relief as
to the Court seems just, proper and equita le, together with the costs and
disbursements of this motion.
RICHARD A. CLACK
Sworn to before me this
3rd of 2021
day February,
A)Mo
ot'ary P lÍc
RENEEBODENBURG
Public, State of New York
Notary
Qualified in Erie County
Commission expires January21,2
My
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Preview
FILED: ERIE COUNTY CLERK 02/03/2021 12:12 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 02/03/2021 STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE UTICA NATIONAL INSURANCE COMPANY OF OHIO AS SUBROGEE OF SPRINGVILLE-GRIFFITH INSTITUTE CENTRAL SCHOOL DISTRICT, AFFIDAVIT Plaintiff, Index No. 809591/2020 -vs- CONCEPT CONSTRUCTION CORP., ARRIC CORP., GUARD CONTRACTING CORP., and STROMECKI ENGINEERS, P.C., Defendants. STATE OF NEW YORK) COUNTY OF ERIE ) SS.: CITY OF BUFFALO ) RICHARD A. CLACK, being duly sworn, deposes and says: 1. I am an attorney at law, duly authorized to practice in the State of New York, and am the attorney for the defendant, Guard Contracting Corp. ("Guard"). 2. I make this affidavit in support of Guard's motion for: a. An order, pursuant to CPLR §§3211 and 3212, granting summary judgment dismissing the plaintiff's Complaint as against Guard, with prejudice; b. An order, pursuant to CPLR §§3211 and 3212, granting summary co-defendants' judgment dismissing the cross-claims against Guard, with prejudice; 1 of 9 FILED: ERIE COUNTY CLERK 02/03/2021 12:12 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 02/03/2021 c. An order granting Guard such other, further and different relief as to the Court seems just, proper and equitable, together with the costs and disbursements of this motion. BRIEF BACKGROUND 3. of brief background, the plaintiff, Utica National Insurance By way Company of Ohio ("Utica National"), brought this subrogation to recover alleged damages it claims to have paid to its insured, the Springville-Griffith Institute Central School District ("Springville-Griffith"), arising out of an incident that occurred on or about July 4, 2019, wherein a portion of a building collapsed while undergoing work in connection with a public construction project ("the Incident"). Springville-Griffith was the owner of the project, which was known as, "Springville-Griffith Institute Central School District - Capital Project - PTECH located at 307 Newman in Academy", Street, Springville, New York ("the Project"). 4. Springville-Griffith had contracted with the defendant, Concept Construction Corp. ("Concept"), to perform the general construction work for the Project. Concept then subcontracted certain portions of its work to the defendant, Arric Corp. ("Arric"). Arric, in turn, subcontracted certain portions of its work to Guard, and Guard hired the defendant, Stromecki Engineers, P.C. ("Stromecki"), to perform certain engineering work in connection with Guard's work on the Project. (Ex. A, Guard Aff., ¶5) 2 of 9 FILED: ERIE COUNTY CLERK 02/03/2021 12:12 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 02/03/2021 PROCEDURAL POSTURE 5. Utica National commenced this action by electronically filing a Summons and an uverified Complaint in the Erie County Clerk's Office on August 31, 2020. The Summons and Complaint was then served upon Guard, and Utica National's attorneys gave extensions to Guard and to Arric to answer or otherwise move with respect to the Complaint that currently extend through February 5, 2021. Guard and Arric have not filed answers to the Complaint, but Concept and Stromecki have both filed answers. Both of their answers contain cross-claims against Guard. (A true copy of Utica National's Summons and Complaint is annexed hereto as Exhibit B, and true copies of Concept's and Stromecki's answers to the Complaint are annexed hereto as Exhibits C and D, respectively.) 6. There has been no the parties to date. discovery among UTICA NATIONAL'S COMPLAINT 7. According its Complaint (Ex. B), Utica National issued a policy of insurance to Springville-Griffith which insured against damages to Springville-Griffith's property at 307 Newman Street, Springville, New York. (Ex. B, 14) Utica National further alleges that it paid Springville-Griffith $152,558.88 under its policy for the damages to Springville-Griffith's property at that address as a result of the Incident. (Ex. Utica National brought this as subrogee of Springville- B, ¶¶20, 23-24) action, Griffith, to recover the amount it paid to Springville-Griffith, alleging that the Incident was caused by the negligence of the defendants. (Ex. B, ¶¶20-25) 3 of 9 FILED: ERIE COUNTY CLERK 02/03/2021 12:12 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 02/03/2021 GUARD'S MOTION 8. Guard is making this motion because, under the contractual documents among and governing the parties herein for the Project, Utica National had no right to bring this action. The contract documents for the Project were, upon information and belief, prepared on behalf of Springville-Griffith its Architect or Construction by Manager. contain a broad waiver of subrogation provision wherein Springville- They Griffith and Concept and all other parties involved in the Project were required to waive, and did, in fact, waive, their rights of subrogation against all other parties. Thus, Utica National, which stands in the shoes of Springville-Griffith in asserting its claim herein (Blue Cross and Blue Shield of N.]., Inc. v. Phillip Morris USA, Inc., 3 N.Y.2d 200, 785 N.Y.S.2d 399, 818 N.E.2d 1140 (2004)), is bound by these provisions and is barred and precluded from proceeding with this action. 9. Annexed hereto as Exhibit A is an affidavit of Christopher C. Guard, the President of Guard. In paragraphs 5 and 6 his affidavit, Mr. Guard identifies and annexes as exhibits various contracts among the parties. Annexed as Exhibit E is a copy of Springville-Griffith's contract with Concept, and attached as Exhibit F is a copy of the general conditions to that contract. A copy of Concept's contract with Arric is annexed as Exhibit G, and a copy of Arric's contract with Guard is annexed as Exhibit H. Guard did not have a written contract with Stromecki. Guard hired Stromecki on a "time and materials" basis, wherein it requested Stromecki to perform certain engineering work, and Stromecki billed Guard for the time it spent and materials it utilized in performing that work. 4 of 9 FILED: ERIE COUNTY CLERK 02/03/2021 12:12 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 02/03/2021 10. Springville-Griffith's contract with Concept consisted of an American Institute of Architects ("AIA") Standard Form of Agreement Between Owner and Contractor (Ex. E) and a set of General Conditions of the Contract of ("Agreement") Construction ("General Conditions") (Ex. F). Article 9 of the Agreement (Ex. E) enumerates the contract documents, and states that they include the General Conditions (Ex. F), General Conditions, if any, Specifications, Drawings and Supplementary various enumerated Addenda. There were no General Conditions on Supplementary the Project. I have reviewed all of the contract documents, and the only contract documents that are relevant to the issues involved in this motion are the Agreement (Ex. E) and General Conditions (Ex. F). 11. Article 11 of the General Conditions (Ex. F), relating to "Insurance and Bonds", contains the following provision: 11.3.7 Waivers of Subrogation. The Owner and Contractor waive all rights against (1) each other and any of their respective subcontractors, sub-subcontractors, agents and employees, and (2) the Construction Manager, Construction Manager's consultants, Architect, Architect's consultants, separate contractors described in Article 6, if any, and any of their respective subcontractors, sub-subcontractors, agents, and employees, for damages caused fire or other causes by of loss to the extent of proceeds under property insurance obtained pursuant to this Section 11.3 or other property insurance applicable to the Work, except such rights as the Owner and Contractor may have to the proceeds of such insurance held by the Owner. The Owner or Contractor, as appropriate, shall require of the Construction Manager, Construction Manager's consultants, Architect, Architect's consultants, Owner's separate contractors described in Article 6, if any, and any of their respective subcontractors, sub-subcontractors, agents, and employees, by appropriate written agreements, similar waivers each in favor of other parties enumerated in this Section 11.3.7. The policies must provide such waivers of subrogation endorsement or by 5 of 9 FILED: ERIE COUNTY CLERK 02/03/2021 12:12 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 02/03/2021 otherwise. A waiver of subrogation is effective as to a person or even though that person or entity would entity otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly, and whether or not the person or entity has an insurable interest in the property damaged. 12. As the Court can see from the first sentence of Section 11.3.7, "The Owner" (Springville-Griffith) has clearly and unequivocally waived its subrogation "Contractor" sub- rights against the (Concept) and all of its subcontractors and subcontractors, which include Arric, Guard and Stromecki. This is obviously a very broad provision which is intended to be binding upon every type of party involved in the Project and to accomplish a complete waiver of rights of subrogation by all of them as against each other with respect to property damage claims covered by insurance. It binds the owner and contactor, and all of their subcontractors, sub-subcontractors construction managers, architects and consultants involved in the Project. (See, Hodgson v. Isolatek Int'l Corp., 300 A.D.2d 1051, 752 N.Y.S.2d 767 (4th Dept. 2002), wherein the Fourth Department held that a very similar waiver of subrogation provision barred and precluded subrogation against not the general contractor, its subcontractors and only sub-subcontractors, but also hired consultants that were not contractors or subcontractors.) 13. Section 11.3.7 is unambiguous and thus this Court can decide the construction of Section 11.3.7 as a question of law, because it is well settled that, "On a motion for summary judgment, the construction of an unambiguous contract is a question of law for the court to pass on (Mallad Constr. Corp. v. County Fed. Sau. & Loan 96)." Assn, 32 N.Y.2d 285, 291, 344 N.Y.S.2d 925, 298 N.E.2d Lake Construction & 6 of 9 FILED: ERIE COUNTY CLERK 02/03/2021 12:12 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 02/03/2021 Development Corporation v. City of New York, 211 A.D.2d 514, 515, 621 N.Y.S.2d 337 (1st Dept. 1995). 14. Section 11.3.7 is mirrored in Concept's contract with Arric (Ex. G) and in Arric's contract with Guard (Ex. H). In Concept's contract with Arric (Ex. G), the terms and conditions of the prime contract between Springville-Griffith and Concept are incorporated by reference. (Ex. G., at pp. 1 and 11) In addition, a waiver of subrogation rights is contained in Section 13.7 of the General Conditions for Subcontract and is also required in the page of insurance requirements that are attached to and part of the contract. In Arric's contract with Guard (Ex. H), the prime contract between Springville-Griffith and Concept and the other contract documents enumerated in that contract are enumerated as part of the contract between Arric and Guard. (Ex. H., Article 16) In addition, a waiver of subrogation rights is contained in Section 13.8 and is also required on page 2 of the Insurance Requirements that are attached and part of the contract. 15. Under Section 11.3.7, if any insurance carrier for any of the parties involved in the Project pays amounts for covered property damage, it cannot assert a subrogation claim or bring an action against any other party involved in the Project. The insurance carrier must absorb the loss itself. 16. As a consequence of the foregoing, Utica National is barred and precluded from bringing this subrogation action as subrogee of Springville-Griffith, because Springville Griffith waived its rights of subrogation against all other parties involved in the Project. Utica National stands in the shoes and is bound Springville- Again, of, by, Griffith's contractual obligations with respect to the Project. Moreover, Utica National 7 of 9 FILED: ERIE COUNTY CLERK 02/03/2021 12:12 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 02/03/2021 did not disclose in its Complaint (Ex. B) whether its policy of insurance with Springville-Griffith that it is basing this action upon contains a waiver of subrogation provision as required by Section 11.3.7. 17. Accordingly, Guard is entitled to an order, pursuant to CPLR §§3211 and 3212, judgment the plaintiff's Complaint as against granting summary dismissing Guard, with prejudice. 18. In addition, for the same reasons, Guard is entitled to an order, pursuant co-defendants' to CPLR §§3211 and 3212, granting summary judgment dismissing the cross-claims asserted against with prejudice. As shown the co- Guard, herein, defendants were also parties involved in the Project, and also waived their rights they of subrogation against all other parties involved in the Project for the type of claim asserted in this action. Thus, are barred and precluded from asserting cross-claims they against Guard. CONCLUSION 19. In view of the foregoing, I respectfully request this Honorable Court to grant: a. An order, pursuant to CPLR §§3211 and 3212, granting summary judgment dismissing Utica National's Complaint as against Guard, with prejudice; b. An order, pursuant to CPLR §§3211 and 3212, granting summary co-defendants' judgment the cross-claims against Guard, with prejudice; dismissing 8 of 9 FILED: ERIE COUNTY CLERK 02/03/2021 12:12 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 02/03/2021 c. An order granting Guard such other, further and different relief as to the Court seems just, proper and equita le, together with the costs and disbursements of this motion. RICHARD A. CLACK Sworn to before me this 3rd of 2021 day February, A)Mo ot'ary P lÍc RENEEBODENBURG Public, State of New York Notary Qualified in Erie County Commission expires January21,2 My 9 of 9