Motion for Summary Judgment in Wilmer Cabrera as Administrator of the Estate of HENRY ESTEBAN SALINAS CERRATO v. United Parcel Service, Inc., Robert A. Kreitzer Jr., Creative Christmas, Inc., Lincoln Square Condominium, Altitude Equipment Rentals Llc| Trellis.Law

On April 01, 2015 a Motion-Secondary was filed involving a dispute between Wilmer Cabrera As Administrator Of The Estate Of Henry Esteban Salinas Cerrato, and Altitude Equipment Rentals Llc, Creative Christmas, Inc., Lincoln Square Condominium, Robert A. Kreitzer Jr., United Parcel Service, Inc., for Tort in the District Court of New York County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--------------------------------------------------------------------X
WILMER CABRERA, as ADMINISTRATOR
of the Estate of HENRY ESTEBAN SALINAS Index No.: 453205/2015
CERRATO, Deceased, (Cabrera Action)

Plaintiff, AFFIRMATION IN REPLY AND IN
FURTHER SUPPORT OF ALTITUDE’S
-against- MOTION FOR SUMMARY JUDGMENT

UNITED PARCEL SERVICE, INC., ROBERT A.
KREITZER, JR., CREATIVE CHRISTMAS, INC. and
LINCOLN SQUARE CONDOMINIUM, and ALTITUDE
EQUIPMENT RENTALS, LLC,

Defendants.
--------------------------------------------------------------------X
UNITED PARCEL SERVICE, INC. and
ROBERT A. KREITZER, JR.,

Third-Party Plaintiffs,

-against-

ALTITUDE EQUIPMENT RENTALS, LLC,

Third-Party Defendant.
--------------------------------------------------------------------X
--------------------------------------------------------------------X
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--------------------------------------------------------------------X
ALTERRA AMERICA INSURANCE COMPANY,

Plaintiff, Second Third-Party
Index No.: 152547/2015
-against- (Alterra Action)

CREATIVE CHRISTMAS, INC., d/b/a CREATIVE
CHRISTMAS DISPLAYS/DECORATORS and UNITED
PARCEL SERVICE GENERAL SERVICES CO., d/b/a
UPS, and UNITED PARCEL SERVICE, INC., d/b/a UPS,
and ROBERT KREITZER, JR.,

Defendants.
--------------------------------------------------------------------X
UNITED PARCEL SERVICE, INC. and
ROBERT KREITZER, JR.,

Third-Party Plaintiffs,

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-against-

ALTITUDE EQUIPMENT RENTALS, LLC and
LINCOLN SQUARE CONDOMINIUM,

Third-Party Defendants.
--------------------------------------------------------------------X
COUNSELORS:

Barry Gerstman, an attorney duly admitted to practice law before the Courts of

the State of New York, hereby affirms the following to be true under the penalties of

perjury:

1. I am a partner of the law firm of Haworth Barber & Gerstman, LLC,

attorneys for defendant/third-party defendant Altitude Equipment Rentals, LLC

(“Altitude”). As such, I am fully familiar with the facts and circumstances as set forth

herein.

2. This affirmation is submitted in reply to the oppositions filed by plaintiff

Wilmer Cabrera as Administrator of the Estate of Henry Esteban Salinas Cerrato

(“plaintiff”) and defendants/third-party plaintiffs United Parcel Service, Inc. (“UPS”) and

Robert A. Kreitzer, Jr. (“Kreitzer”) (together, the “UPS Defendants”) and in further

support of Altitude’s motion for summary judgment.

3. Summary judgment should be granted in favor of Altitude because there is

no evidence that the accident arose out of any act and/or omission by Altitude or that

Altitude had a duty to train the renter in the proper use of the lift or to monitor the renter

to insure its compliance with the rental agreement and its safety and training

instructions.

4. The Rental Agreement was expressly conditioned on the following terms:

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a. Creative assumed sole custody and exclusive control over Altitude’s
Boom Lift for the duration of the November 1, 2013 through
November 8, 2013 rental period (preamble, recitals and ¶ 2);

b. Creative had a duty to operate the Boom Lift in a safe and careful manner
and “in compliance with all operational and safety instructions provided on,
in or with the Equipment” and with all federal, state and local laws (¶¶ 2,
3);

c. Creative had an express duty to prohibit unauthorized or unqualified
individuals from operating the equipment and Creative expressly
acknowledged that the equipment might be dangerous ifused improperly
or by untrained personnel (¶¶ 2 - 4);

d. Creative represented that a designated and qualified person would receive
the equipment and undertake “full compliance of receiving [and]
familiarization of the specific model equipment” (¶ 3), including:

1. Identifying the weather-resistant compartment storing manuals;
2. Confirming that the manuals were on the Equipment;
3. Review of all control functions; and
4. Review of all safety devices;

e. Creative represented to Altitude that only properly trained personnel would
be permitted to operate the Boom Lift and further agreed that Altitude was
not responsible for providing operator or other training in connection with
this Boom Lift (¶¶ 2, 4);

f. Creative represented that it had all information necessary for the safe
operation of this equipment (¶ 2(d));

g. Creative had a duty to provide its operators with all of the requisite
personal protection equipment (¶ 2(g));

h. Creative had a duty to perform all routine maintenance during the rental
term and Creative assumed all responsibility or obligations to inspect or
perform any maintenance or repairs to the Boom Lift during the rental
period (¶ 5);

i. Creative “assume[d] all risks associated with the possession, custody, and
operation of and full responsibility for, the equipment, including but not
limited to, personal injury, death … damages and destruction to
property….” (¶ 6); and

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j. Creative assumed a duty to indemnify, release and hold Altitude harmless
for all liabilities arising out of Creative’s use, possession or control of the
equipment during the rental period (¶ 8).

See Rental Agreement and related correspondence, at Ex. P, and Levine Aff., ¶
12 at Ex. Y.

5. As set forth in Altitude’s motion, the evidence is uncontested that there

was no mechanical issue or maintenance issue with the lift that led to the accident (UPS

raises none), that Altitude acted reasonably in leasing the lift to plaintiff’s employer and

that Altitude lacked notice that the lift was not being operated in a safe manner prior to

the accident. Despite this evidence, plaintiff and UPS wrongfully seek to hold liable

equipment rental companies, like Altitude, for the acts and/or omissions of lessees.

6. In opposing Altitude’s motion, UPS argues that Altitude has failed to meet

its prima facie burden: (1) that there was no active negligence on the part of Altitude; (2)

that Altitude cannot be found vicariously liable, pursuant to New York Vehicle and

Traffic Law (“VTL”) § 388, for any alleged negligence attributable to decedent Henry

Salinas’ employer, Creative Christmas, because it was not an “owner” of the subject Lift

and because the subject Lift is not a “motor vehicle” within the meaning of the VTL; and,

if the Court deems the subject Lift to be a “motor vehicle,” (3) that Altitude is immune

from liability pursuant to the Graves Amendment, Federal Transportation Equity Act of

2005, 49 U.S.C. § 30106, which holds that an owner or affiliate of an owner that rents or

leases a motor vehicle to another person shall not be liable under the law of any state

by reason of being the owner/owner affiliate of that vehicle.

7. As set forth below, Altitude has met its prima facie burden of entitlement to

summary judgment on each of its arguments and against all adverse claims through its

offer of probative and reliable evidence. UPS and plaintiff have failed to raise a

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question of fact as to Altitude’s lack of liability and therefore, the Court should grant

Altitude’s motion for summary judgment as a matter of law.

ARGUMENT

I. ALTITUDE HAS SATISFIED ITS PRIMA FACIE BURDEN TO ALL MATERIAL
ADVERSE ALLEGATIONS BY SUBMITTING EVIDENCE IN PROPER FORM

A. The Court must consider the probative value of the
affidavit of fact witness Darren Levine

8. In support of its motion and entitlement to relief, Altitude has offered

evidence in proper form including the affidavits of Darren Levine and expert Peter Chen,

M.S.M.E., M.B.A., P.E., C.F.E.I. C.V.F.I.

9. In the First Department, a fact witness is not subject to the same

requirements as an expert witness pursuant to New York Civil Practice Law and Rules

(“CPLR”) § 3101(d)(1)(i) and, thus, may be permitted to testify notwithstanding an

earlier failure to disclose. See Sheppard v. Blitman/Atlas Building Corp., 288 A.D.2d 33,

35 (1st Dept. 2001) (Court properly admitted testimony of a fact witness despite failure to

disclose the identity of the witness prior to trial). On motions for summary judgment, the

Court may freely consider the affidavit of a previously undisclosed fact witness and a

request for the drastic remedy of preclusion is properly denied. Spitzer v. 2166 Bronx

Park East Corps., 284 A.D.2d 177 (1st Dept. 2001).

10. Attempts by the UPS Defendants and by plaintiff1 to argue the affidavit of

Darren Levine should not be considered by this Court, because Altitude allegedly failed

to disclose this fact witness during discovery and because his testimony somehow

contradicts the deposition testimony of Scott Robinson, are not in accord with the facts.
1
We note plaintiff joined in “all applicable arguments” made by the UPS Defendants, see
Affirmation of Raymond Maceira, Esq. dated July 26, 2019 (“Maceira Aff.”) at ¶ 7, and
further citations to this part of the Maceira Aff. will hereafter be omitted.

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As such, UPS Defendants’ reliance on Caraballo and Ravgnan to support this argument

is misplaced because the facts at bar are distinguishable.

11. In Caraballo, a plaintiff-pedestrian who was allegedly struck by a minibus

was precluded on motion for summary judgment from using the evidence of an

eyewitness due to that plaintiff’s failure to disclose the eyewitness’ identity. Caraballo v.

Rivas-Barzola, 90 A.D.3d 532 (1st Dept. 2012). In Ravagnan, plaintiff was precluded

because she failed to disclose any notice witness until she opposed defendants’ prima

facie showing, that they had neither created the alleged dangerous condition nor had

actual or constructive notice thereof, by offering her daughter’s affidavit as the sole

evidence of constructive notice. Ravagnan v. One Ninety Realty Co., 64 A.D.3d 481 (1st

Dept. 2009).

12. These cases are distinguishable, however, because, here, Darren Levine

was identified on the record at Scott Robinson’s deposition on May 4, 2017 as the

former Vice President who ran Altitude’s day to day operations prior to its closure. See

Robinson Dep. at ¶¶ 14:9-15 and 15:20-23. Unlike the facts of Caraballo and Ravgnan,

where the offending witness was identified for the first time in opposition to summary

judgment motions filed after discovery had completed, plaintiff and the UPS

Defendants have long had Mr. Robinson’s testimony as to Darren Levine’s

identity but took no steps to investigate further, locate this non-party or even

attempt to secure his deposition or testimony. Indeed, the relevant testimony of Mr.

Robinson omitted by the UPS Defendants in this regard confirms that the witness had

last spoken with Mr. Levine sometime in 2016 but only in passing on the street, had

never discussed this case with Mr. Levine and did not know Mr. Levine’s then-current

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employment. Id. at ¶ 15:3-19. Thus, the foregoing shows Mr. Robinson was not in

communication with Mr. Levine and had no further information to provide except the

witness’ name which he freely gave. The UPS Defendants, along with all other parties

to this action including Altitude, had access to the same information.

13. Whereas none of the other parties undertook any effort to locate this fact

witness, your movant took steps to try locating and obtaining Mr. Levine’s statement in

preparation for Altitude’s motion for summary judgment. Those efforts involved little

more than searching for Mr. Levine on Google and LinkedIn. As such, Altitude should

not be penalized for other parties’ failure to act on information which has been available

since May 2017.

14. Furthermore, the UPS Defendants themselves point out that Mr. Robinson

was unable to testify as to Altitude’s maintenance practices, rental procedures or

whether Altitude offered any equipment training to renters in the ordinary course of

Altitude’s rental business. See O’Connor Affirmation at ¶¶ 27-29. However, such

testimony does not raise a conflict because as testified to by Mr. Robinson, he was

employed by Altitude’s parent company, Platinum Maintenance Services Corp.

(“Platinum”) and Darren Levine ran the day to day business of Altitude. See Deposition

of Scott Robinson dated May 4, 2017 attached to Gerstman Affirmation at Exh. Q

(“Robinson Dep.”), at ¶ 9:11-18; 14:9-15 and 15:20-23. The fact that Robinson lacked

knowledge on the issue above does not somehow create a conflict with the statements

in Levine’s affidavit.

15. Darren Levine’s affidavit provides facts which establish, as sworn

testimony, his position and role with Altitude, his basis for knowledge as to Altitude’s

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day to day operations including the equipment rental business, Altitude’s

October/November 2013 and earlier dealings with Creative Christmas, maintenance

and inspection procedures, lack of any reported mechanical or safety issues with the

subject Lift, the contents of Altitude’s form contract for short-term equipment rentals,

and the scope of the respective duties as between Altitude and Creative Christmas.

See Levine Affidavit, sworn to April 6, 2019, attached to the Gerstman Affirmation as

Exh. Y.

16. As the Court can plainly see, the Levine Affidavit does not contradict, Mr.

Robinson’s testimony but rather very clearly supplements it. Notably, in the case cited

by the UPS Defendants to support the proposition that the Levine Affidavit creates an

issue of fact, the Beach Court references a conflict between deposition testimony and

an affidavit but does not expound on the substantive details of this conflict. Beach v.

Touradji Capital Mgt., LP, 144 A.D.3d 557, 561 (1st Dept. 2016). In the instant case,

however there is no conflict between Mr. Levine affidavit and Mr. Robinson’s testimony

and therefore, the holding in Beach does not apply,

17. As discussed above, Altitude was defunct after the accident and Mr.

Robinson of Platinum testified that he was not in communication with Mr. Levine. The

UPS Defendants, despite having known of Levine’s identity since May 2017, did not

make any efforts to secure Mr. Levine’s deposition. For these reasons, Hypercel Corp.

v. Stampede Presentation Prods., Inc., 158 A.D.3d 1237, 1237-1238 (1st Dept. 2018), is

inapposite.

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B. The Court must consider the probative value of
affidavits of expert engineer Peter Chen, M.S.M.E.,
M.B.A., P.E., C.F.E.I. C.V.F.I

18. New York Civil Practice Law and Rules (“CPLR”) § 3101(d)(1)(i) provided,

in pertinent part, as follows:

[W]here a party for good cause shown retains an expert an
insufficient period of time before the commencement of trial
to give appropriate notice thereof, the party shall not
thereupon by precluded from introducing the expert’s
testimony at the trial solely on grounds of noncompliance
with this paragraph. In that instance, upon motion of any
party, made before or at trial, or on its own initiative, the
court may make whatever order may be just.

19. Altitude’s position that this Court should consider the affidavit of its expert

witness is well-supported by the jurisprudence of the First Department. See Lissak v.

Cerabona, 10 A.D.3d 308 (1st Dept. 2004) (defendant was precluded for disclosing new

different experts to testify at trial after 5pm on the Friday before jury selection on the

following Monday); Martin v. Triborough Bridge and Tunnel Authority, 73 A.D.3d 481,

482 (1st Dept. 2010) (denying plaintiff’s motion to preclude expert testimony for failure to

give timely disclosure, as called for in CPLR 3101(d)(1)(i)); Gallow v. Linkow, 255

A.D.2d 113, 116-117 (1st Dept. 1998) (trial court’s preclusion of expert testimony for an

inadvertent delay is an inappropriately severe sanction when the failure to serve a

timely notice is neither willful nor prejudicial to the adversary).

20. Here, these matters are not on the eve of trial because no trial date has

been set and the UPS Defendants cannot therefore claim prejudice. In addition, Chen

was retained by Altitude’s prior counsel solely to conduct an inspection of the unit after

the accident. Altitude did not consider using him as an expert until the time that it

decided to move for summary judgment. As such, his disclosure is timely and given

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that the probative value of Mr. Chen’s informed opinions, his affidavit should be

considered.

21. Concerning the qualifications of Altitude’s expert engineer, Mr. Chen’s

qualifications are set forth at ¶¶ 1, 2, 3 and 17 of his affidavit along with his professional

curriculum vitae and the Lift’s manual and two (2) photographs previously produced on

November 11, 2016 showing the built-in, weather-proof compartment, attached thereto

as Exhibits “A” and “B”2, and his expert testimony based on his walk-around inspection

of the subject Lift. See Chen Affidavit at ¶¶ 4, 5 and 7.

C. There is no evidence that any violation of ANSI caused the accident.

22. The UPS Defendants reliance on Sawyer and Bradley for the proposition

that a violation of ANSI standards is evidence of negligence is misplaced and not

dispositive of the issues or standards involved in this action. Sawyer dealt with a

plaintiff who’s hand was crushed while using a press brake to shape sheet metal and

states that use of ANSI standards is not conclusive evidence of negligence but rather

only “some evidence of negligence if [the jury] first found that the standards set forth in

the booklet represented the general custom or usage in the industry.” See Sawyer v.

Dreis & Krump Mfg. Co., 67 N.Y.2d 328, 337 (1986). Sawyer does not stand for the

UPS Defendants’ asserted proposition that any alleged violation of ANSI standards

becomes conclusive proof of negligence. Bradley simply repeats the general theory of

Sawyer but fails to apply it to fact and further emphasizes its qualified nature. See

Bradley v. HWA 1290 IIILLC, 32 N.Y.3d 1010 (2018). Therefore, these cases do not

provide a basis to deny Altitude’s motion.

2
Exhibits “A” and “B” to the Chen Affidavit were inadvertently omitted at the time of filing
and this oversight has since been corrected.

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23. While the UPS Defendants attempt to deliberately misconstrue Altitude’s

moving papers and supporting evidence as an admission that all of the ANSI standards,

customs and practices are applicable to the instant matter at hand, this is not correct.

See O’Connor Affirmation at ¶ 78. The only applicable ANSI standard is A92.5

concerning boom-supported elevating work platforms. In this regard, Altitude has

demonstrated that it was not negligent through the relevant portions of the Levine

Affidavit, see ¶¶ 3, 4 and 7-29, and the Chen Affidavit, see ¶¶ 3-7 and 9-18.

24. More importantly, UPS’ argument as to ANSI is flawed because itis not

supported by expert testimony but rather the unsupported opinions of UPS’ counsel.

Notably, however, the UPS Defendants’ counsel is not a qualified expert in ANSI

standards and, as such, he is not qualified to advance an argument that Altitude

violated ANSI standards. In its opposition, UPS failed to submit an expert affidavit

opining that the standards cited by UPS are the general custom or usage in the

industry, that Altitude violated any ANSI standard and/or that any claimed violation

caused and/or contributed to the happening of the accident.

25. Accordingly, the Court should consider the probative value of affidavits

from fact witness Darren Levine and expert witness expert Peter Chen, M.S.M.E.,

M.B.A., P.E., C.F.E.I., C.V.F.I. and reject UPS’ arguments against Altitude to the extent

that they are related to an alleged violation of ANSI.

D. Altitude was not negligent

26. As a threshold matter, the UPS Defendants incorrectly argue that the

actions at bar “arise from Altitude’s rental of a self-propelled telescopic boom lift….”

See Affirmation of Thomas O. O’Connor dated June 21, 2019 (the “O’Connor

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Affirmation”), at ¶ 3. While the rental was a factual predicate to these events, it was not

the legal or proximate cause any more than the oncoming holiday season or nightfall. It

is beyond contest that the alleged proximate cause of Mr. Salinas’ death was a

traumatic collision which occurred when a UPS truck negligently operated by Kreitzer

collided with an aerial basket while the attached Boom Lift was in the exclusive custody

and control of Creative Christmas and its agents, namely, Mr. Salinas himself.

27. The evidence shows that Altitude rented the Lift to Creative Christmas on

this instance in October/November 2013, which as the record shows it had done on

numerous occasions in the past without incident.

28. It is also true that, in renting the subject Lift, Altitude and Creative

Christmas entered into the Hold Harmless Rental Agreement setting forth clear duties

on the part of Creative Christmas to undertake several duties including, but not limited

to, indemnification and procurement of insurance favoring Altitude, familiarization with

the equipment, manuals and other materials provided, performance of walk-around

inspections prior to use, maintenance procedures, proper training requirements,

undertaking only properly trained persons as authorized users, use of safety equipment

including lanyards and other protective gear and a long list of precautions and

responsibilities designed to protect the Altitude’s interests.

29. The UPS Defendants fail to demonstrate by admissible evidence why the

rental agreement was not valid as written or how Altitude assumed any duties greater

than those expressly set forth in the rental agreement.

30. Furthermore, the UPS Defendants fail to otherwise identify, again through

admissible evidence, any non-delegable duties on the part of Altitude to perform

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additional tasks or actions in the regular course of its business renting this type

equipment above or beyond its customs and practices. Indeed, the opposing parties fail

to offer any opposing expert testimony of such expanded duties.

31. The UPS Defendants set forth at length certain facts surrounding OSHA’s

investigation following this incident and its issuance of certain violations against

Creative Christmas. See O’Connor Affirmation at ¶¶ 48-51. It is incumbent upon the

Court to take judicial notice that no citations were issued by OSHA to Altitude.

32. Accordingly, Altitude has met its prima facie burden of showing that it was

not negligent and the Court must grant Altitude’s motion for summary judgment as a

matter of law and in its entirety.

II. ALTITUDE CANNOT OTHERWISE BE FOUND LIABLE AND THE COURT
SHOULD GRANT ITS SUMMARY JUDGMENT MOTION IN ITS ENTIRETY

33. Altitude has met its prima facie burden and the burden now shifts to

plaintiff and the UPS Defendants to raise a triable issue of fact, which they cannot do.

34. Preliminarily, the UPS defendants argue that Altitude cannot raise the

Grave’s amendment as a defense because i t failed to assert it as an affirmative defense

is its answer3.

35. Notably, UPS fails to cite any case law specifically holding that the Graves

Amendment must be raised as an affirmative defense. Moreover, even if that were the

case, Altitude, in its answer, raised the affirmative defense of failure to state a cause of

action which would encompass a defense under the Graves Amendment. However, to

the extent the Court finds that this was not specific enough, Altitude should be granted

leave to amend its answer to assert the defense and upon such amendment, grant

3
Your affirmant’s firm was substituted in as counsel for Altitude in October 2018 and
therefore was not involved in drafting Altitude’s answer.

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Altitude summary judgment in its favor. There would be no prejudice to the other

parties in granting this amendment.

A. Altitude is not the record owner of the Lift

36. The record clearly shows that Platinum, not Altitude, is the record owner.

See Ex. O to the Gerstman Affirmation, Gerstman Affirmation, at ¶ 24, and Robinson

Dep. ¶ 97:4-7.

37. Accordingly, Altitude cannot be held vicariously liable under VTL § 388 for

Creative Christmas’ alleged negligence.

B. The subject Lift is not a Motor Vehicle per VTL § 388

38. The UPS Defendants argue that the subject Lift is a motor vehicle in

reliance on excerpts from the Manual that it can be self-propelled, operated on a public

road and driven speeds up to 4mph. See O’Connor Affirmation at ¶¶ 12 and 80. Yet,

the opposition wholly fails to address the salient findings of Mangra pertaining to a

similar piece of equipment. Mangra v. China Airlines, Ltd., 790 N.Y.S.2d 370 (Civil Ct.,

Queens County 2005).

39. The Mangra Court determined that a forklift, which similarly can be self-

propelled, can be operated on public roads, does not require registration with the

Department of Motor Vehicles or special licensure to operate and can moreover reach

speeds in excess of 8 to 10mph, was not a “motor vehicle” in the meaning of the VTL.

40. Accordingly, the Court should find that the subject Lift does not meet the

criteria of a motor vehicle and, therefore, Altitude cannot therefore be found vicariously

liable for Creative Christmas’ alleged negligence.

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C. Altitude was engaged in the regular business of renting
equipment of this type and, should the Court find that
the subject Lift was a Motor Vehicle per VTL § 388, the
Court should also find that Altitude is entitled to the
statutory protections of the Graves Amendment.

41. In opposition, the UPS Defendants simply state that Altitude cannot enjoy

the protections of the Graves Amendment, despite being the precise situation for which

this statute was implemented, because Altitude was not “engaged in the trade or

business of renting or leasing motor vehicles that are manufactured primarily for use on

public streets, roads and highways.

42. UPS cannot have itboth ways. They cannot on the one hand argue that

the liftis a motor vehicle under VTL § 388 and then on the other hand argue that

Altitude cannot claim the benefit of the Graves Amendment because the liftis not a

motor vehicle.

43. Without admitting the characterization of the subject Lift as a qualifying

“motor vehicle,” Altitude has met this burden by offering the requisite proof. This pivotal

fact has been established time and again in the record. See Robinson Dep. at ¶ 13:23-

25; Levine Affidavit at ¶¶ 3, 9-16; and the Hold Harmless Rental Agreement, at Ex. P to

the Gerstman Affirmation.

44. Furthermore, the UPS Defendants failto contest the substantive facts as

to Altitude’s maintenance practices per the Levine Affidavit, “light usage” of the subject

Lift as established by discovery in these actions, the undisputable less than 2 years’

usage of the equipment or soundness of the engine, fluid and fuel levels, chassis,

motors and electrical systems and other components of the subject Lift which were not

directly impacted by UPS’ truck.

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45. Indeed, in oppositio

Case Info

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Case No.

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Document Filed Date

August 08, 2019

Case Filing Date

April 01, 2015

County

Parties

ALTITUDE EQUIPMENT RENTALS LLC Defendant
BASHAR, STEFANIE A Attorney for the Defendant
BASHAR, STEFANIE A Attorney for the Defendants
BYLINKIN, ALEXANDER Attorney for the Defendants
CRAFA, JOSEPH R. Attorney for the Defendant
CREATIVE CHRISTMAS, INC. Defendant
DANSKER, PAUL Attorney for the Plaintiff
GERSTMAN, BARRY L. Attorney for the Defendant
KONG, DAVID W Attorney for the Defendant
LINCOLN SQUARE CONDOMINIUM Defendant
O'CONNOR, THOMAS O Attorney for the Defendant
O'CONNOR, THOMAS O Attorney for the Defendants
Robert A. Kreitzer JR. Defendant
UNITED PARCEL SERVICE, INC. Defendant
Wilmer Cabrera as Administrator of the Estate of HENRY ESTEBAN SALINAS CERRATO Plaintiff
JOSEPH CAROFANO Attorney
KEVIN LOCKE Attorney
SALVATORE ASPROMONTE Attorneys for Plaintiffs
JAY MIN Attorney
JOSEPH ASARO Attorneys for Defendants
RAYMOND MACEIRA Attorneys for Plaintiffs
MARINA SPINNER Attorneys for Defendants
RALPH CRAFA Attorneys for Defendants
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Motion-Secondary: Wilmer Cabrera as Administrator of the Estate of HENRY ESTEBAN SALINAS CERRATO v. United Parcel Service, Inc., Robert A. Kreitzer Jr., Creative Christmas, Inc., Lincoln Square Condominium, Altitude Equipment Rentals Llc

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