Preview
FILED: NASSAU COUNTY CLERK 10/17/2018 06:49 PM INDEX NO. 603925/2013
NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 10/17/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
----------------X
WILLIAM FARBER and MARY FARBER, Index No.: 603925/2013
Plaintiffs, DECLARATION OF
JAY J. MASSARO, ESQ.
-against-
COUNTY OF NASSAU, COUNTY OF NASSAU
DEPARTMENT OF PUBLIC WORKS, NEW YORK
ISLANDERS HOCKEY CLUB, L.P., SMG,
Defendants.
X
MEMORANDUM OF LAW
DELL & DEAN, PLLC
Attorneys for Plaintiff
Jay J. Massaro
1225 Franklin Avenue, Suite 450
Garden City, New York 11530
Telephone: (516) 880-9700
Facsimile: (516) 880-9707
Email: jmassaro@d2triallaw.com
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Table of Contents
L EVIDENCE IN THE RECORD.............................................................1
AFFIDAVIT OF WILLIAM FARBER.....................................................................1
AFFIRMATION OF NATHAN I. ROTHMAN, M.D...................................................2
AFFIRMATION OF INDUSTRIAL HYGIENIST ROBERT C. BROWN...........................3
AFFIRMATION OF ENGINEER ANDREW R. YARMUS............................................5
SIXTEEN AFFIDAVIT-TESTIMONIALS BY COLISEUM WORKERS...........................6
IL SUMMARY OF RELEVANT NASSAU COLISEUM CONTRACTS/LEASES..6
a. 1972 County-Islanders Lease........................................................................6
b. 1979 County-Islanders Lease....................................................................... 7
c. 1979 SMG-County Contract..........................................................................9
d. Amendment to 1979 County-Islanders Lease.....................................................9
e. 1985 Tri-Party Lease between County, Islanders, & SMG....................................10
f. 2010 Islanders-SMG Lease........................................................................14
HI. SUMMARY OF DEPOSITIONS..........................................................15
ISLANDERS'
DEPOSITION OF SENIOR VICE PRESIDENT MICHAEL PICKER............15
ISLANDERS'
DEPOSITION OF DIRECTOR OF GAME ENTERTAINTMENT TIMOTHY
BEACH................................................................................................................17
ISLANDERS'
DEPOSITION OF DIRECTOR OF GAME ENTERTAINTMENT TIMOTHY
BEACH- FROM DOWD LITIGATION..................................................................19
DEPOSITION OF SMG'S MAINTENANCE MANAGER KEVIN MCCAFFREY..............21
DEPOSITION OF NASSAU COUNTY ASBESTOS MANAGER ROBERT EXNER...........24
DEPOSITION OF NASSAU COUNTY CHIEF DEPUTY COMMISSIONER RICHARD
MILLET................................................................................................................25
DEPOSITION OF NASSAU COUNTY BUILDING CONSTRUCTION ESTIMATOR
MICHAEL PULEO - FROM THE WASS LITIGATION..............................................27
DEPOSITION OF NASSAU COUNTY DEPUTY COMMISSIONER WILLIAM
NIMMO.......................................................................................................30
IV. LEGAL ARGUMENTS.....................................................................31
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DEFENDANTS'
1. SPECIFIC CAUSATION ARGUMENT PURSUANT TO
PARKER SHOULD BE REJECTED BECAUSE DEFENDANTS FAILED TO
PROVE,PRIMA FACIE, PLAINTIFF WAS NOT EXPOSED TO A SUFFICIENT
LEVEL OF TOXINS TO CAUSE AN ASBESTOS-RELATED
DISEASE............................................................................................31
2. ASSUMING DEFENDANTS SUBMITTED SUFFICIENT EVIDENCE TO
SUPPORT THEIR ARGUMENT THAT THE FRIABLE ASBESTOS WAS SAFE,
THEN PLAINTIFF HAS RAISED A QUESTION OF FACT...........................37
3. ASSUMING DEFENDANTS SHIFTED THE BURDEN ON THE ISSUE OF AN
ASBESTOS-RELATED DISEASE, PLAINTIFF HAS PRESENTED A QUESTION
OF FACT EXISTS.................................................................................45
4. THE ISLANDERS OWED A DUTY TO PLAINTIFF BECAUSE THE
ISLANDERS HAD A COMMON LAW DUTY AS A TENANT IN POSSESSION
WITH MAINTENANCE AND REPAIR RESPONSIBILITIES........................46
'DUTY'
5. THE ISLANDERS OWED A TO PLAINTIFF BECAUSE AS A SMG
BENEFICIARY'
EMPLOYEE PLANITIFF WAS AN 'INTENDED OF ALL THE
CONTRACTS/LEASES/LICENSES..........................................................50
6. DEFENDANTS FAILED TO PROVE, PRIMA FACIE, THAT A BATTERY DID
NOT OCCUR, AND IN ANY EVENT, PLAINTIFF RAISED A QUESTION OF
FACT.................................................................................................51
7. PLAINTIFF HAS A VALID NEGLIGENT INFLICTION OF DISTRESS CLAIM
BECAUSE PLAINTIFF'S DIAGNOSIS OF AN ASBESTOS-RELATED DIEASE
BASIS' ASBESTOS-
PROVIDES A 'RATIONAL FOR FEAR OF FURTHER
RELATED DISEASE AND/OR FEAR OF CANCER.....................................58
8. DEFENDANTS HAD A DUTY TO WARN..................................................61
9. PLAINTIFF HAS A MERITORIOUS FRAUDULENT CONCEALMENT CAUSE
OF ACTION........................................................................................67
10. THE COUNTY'S ARGUMENT THAT THE FRAUDULENT CONCEALMENT
AND BATTERY CLAIM ARE BARRED BY THE STATUTE OF LIMITATIONS
LACKS MERIT....................................................................................69
11. PLAINTIF HAS A VALID LABOR LAW 241(6) CLAIM...............................71
12. PLAINTIFF HAS A VALID CLAIM FOR PUNITIVE DAMAGES...................72
13. ASPECTS OF THE MOTION NOT BEING OPPOSED.................................73
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I. EVIDENCE IN THE RECORD
AFFIDAVIT OF WILLIAM FARBER ATTACHED AS EXHIBIT A-
Mr. William Farber was born in 1954. He owned his own business "Beautiful Homes
Company" Painting"
Painting in 1981. The company then changed its name to "Long Island in
around 1985 or 1986. Mr. Farber performed various painting jobs at various different locations
with his company and with the Union, Local 1486. Mr. Farber reported that he was a prior
smoker.
Mr. Farber was a painter who worked part-time at the Nassau Coliseum from 2000
Islanders'
through 2007. He reported that he worked before the games because he would be
hired to paint the ice for the games. He reported that he would paint the ice about 3-5 times a
year. He reported that painting the ice usually took 12 - 14 hours, but sometimes could take up
Islanders'
to 16 hours. His work activities included painting the ice in the Nassau Coliseum.
His work also including running the compressor through the loading dock and onto the ice.
painters' dungeon,"
Mr. Farber reported that the shop, which was nicknamed "the was
located in the loading dock. Mr. Farber reported that he was required to eat lunch in the
painters' painters'
shop. The shop was covered in dirt and dust and had no roof or ceiling above
painters'
it. Mr. Farber reported that the pipe wrapping from the pipes above the shop would
break off and fall onto the painters. He reported that the loading dock was always dusty and
dirty. Mr. Farber reported that trucks would drive through the loading dock and cause the dust
to become airborne. Mr. Farber reported that he asked why the loading dock looked like it was
never cleaned, but was never given an answer.
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Mr. Farber reported that he painted the interior of the Nassau Coliseum 2 - 3 times.
When he painted the interior of the Nassau Coliseum, he worked all over the Nassau Coliseum.
Mr. Farber reported that he painted the serving room, which was on one side of the
skyboxes. He reported that the serving room had stoves and heating devices for food held in this
room. He reported that as he was painting the serving room, he struck a large pole. He reported
that his striking the pole caused the padding from the pipes above his head to crumble and fall on
top of him. He then had to clean up the fallen padding. He reported that he was not given a
mask or any other protective equipment during this. He reported that he later learned that the
serving room was abated.
He reported that the dust he noticed in the Nassau Coliseum was frayed and white, but
some of the dust was darker colored, as though it had soot mixed in with it. He reported that he
was always covered in dirt and dust when he got home after working at the Nassau Coliseum.
Mr. Farber reported that he was never provided any mask or protective equipment when working
at the Nassau Coliseum, and therefore never wore a mask or protective equipment when working
in the Nassau Coliseum.
Mr. Farber reported that no one ever told him that there was asbestos inside the Nassau
Coliseum. Mr. Farber reported that Dr. Nathan Rothman has diagnosed him with an asbestos-
related disease.
AFFIRMATION OF NATHAN I. ATTACHED AS EXHIBIT C--
ROTHMAN, M.D.,
Nathan I Rothman, M.D., is a physician who is board-certified in internal medicine,
pulmonary medicine, and critical care medicine. He is Chief of Pulmonary and Critical Care
Division at St. John's Episcopal Hospital, Far Rockaway, New York. Dr. Rothman has provided
treatment to plaintiff, and based on same, he opines to a reasonable degree of medical certainty
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that plaintiff presents with an asbestos-related disease arising from plaintiff's work at the Nassau
Coliseum.
In his affirmation, Dr. Rothman opines to a reasonable degree of medical certainty that
Mr. Farber has an asbestos-related disease that arises from his work at the Nassau Coliseum,
namely asbestosis and occupational-induced asthma. Dr. Rothman's conclusions are based on
the totality of Mr. Farber's presentation. Yet, some of the medical factors related to Dr.
Rothman's diagnosis of asbestosis are (1) Mr. Farber's history of significant occupational
asbestos exposure; and (2) chest x-rays that confirmed the presence of interstitial markings; (3)
chest x-rays confirmed the presence of nodular changes in the lowr lung zones; (4) Chest CT
revealed scarring at the left lung base; (5) and Mr. Farber's pulmonary function testing results
were consistent with asbestosis.
Dr. Rothman opines that he fully disagrees with the opinion of Defense Expert Utell that
Mr. Farber does not suffer from asbestos-related diseases arising from his working at the
Nassau Coliseum. Dr. Rothman opines that Dr. Utell is mistaken when he opined that
radiological studies did not reveal interstitial lung disease. Dr. Rothman opines that Dr. Utell is
mistaken in asserting that the medical community has not determined a link exists between
asbestos-exposure and causing/exacerbating asthma.
AFFIRMATION OF INDUSTRIAL HYGIENIST ROBERT C. BROWN ATTACHED AS
EXHIBIT B--
Robert C. Brown is a board-certified Industrial Hygienist. He is a Certified Asbestos
Inspector, Certified Project Monitor, Certified Management Planner, and Certified Designer in
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Connecticut and New York. He is a former Director of Environmental Health and Laboratory
for the Greenwich Department of Health, Greenwich, CT.
In his affidavit, Industrial Hygienist Brown opines to a reasonable degree of certainty that
significant amounts of friable asbestos existed at the Coliseum, and same was hazardous and
dangerous and good and accepted environmental practice mandated that the hazards be removed
from the building as soon as possible. Industrial Hygienist Brown opines that the significant
friable asbestos that was documented in 2012 existed long before 2012, and the condition of
asbestos-containing materials in the Coliseum was allowed to deteriorate as the result of chronic
neglect and/or abuse of the building structure.
Industrial Hygienist Brown opines that the asbestos-related disease diagnosed by Dr.
Rothman arose from plaintiff's work at the Nassau Coliseum.
Industrial Hygienist Brown notes that Mr. Farber worked as a painter from 2000 through
2007 in a building that was neglected from a maintenance viewpoint and contained significant
amounts of friable asbestos, and studies have shown that exposing maintenance and janitorial
staff to friable asbestos in poorly maintained buildings, such as the Coliseum, can cause
asbestos-related diseases. Industrial Hygienist Brown discussed studies regarding similar
activities as Mr. Farber was performing while in the Coliseum, and the amount of estimated
asbestos inhalation from said tasks, and he cross compared same with Mr. Farber's activities.
Industrial Hygienist Brown opines that Dr. Poole mistakenly relied in his report on area
air-samples to assess the asbestos exposure Coliseum workers experienced while working. He
opines that for air-samples to accurately depict a worker's exposure, it is essential that the
sampling method represents the nature of the tasks being performed by the worker as well as the
conditions prevailing at the time sampling is conducted and the physical configuration of the area
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where the work takes place. He opines that the OSHA Asbestos Standard mandates that personal
air-sampling be conducted for all workers who are routinely exposed to asbestos, and failure to
carry out this simple, inexpensive procedure is negligent. He opines that there are no reports of
personal air-sampling for asbestos at the Nassau Coliseum occurring prior to 2012. Industrial
Hygienist Brown notes that in 2012 OSHA itself concluded that the air-monitoring occurring at
the Coliseum was inadequate to assess risk and prior exposure, and OSHA issued a citation for
same.
AFFIRMATION OF ENGINEER ANDREW R. YARMUS ATTACED AS EXHIBIT D--
Andrew R. Yarmus, P.E., is a Professional Engineer licensed to practice in the State of New
York. He is a New York State Certified Code Enforcement Official. He is a Licensed Asbestos
Inspector and Project Designer. Engineer Yarmus opines to a reasonable degree of certainty that
friable and damaged asbestos that existed in the Nassau Coliseum at work areas where it was
likely to be disturbed and/or where workers were exposed to debris from same was a hazardous
workers'
condition requiring abatement. He opines that records and testimonials indicate that
both friable and damaged asbestos was located in areas of the Coliseum in which workers were
working until such time that complete abatement was finally undertaken post-OSHA citations.
Engineer Yarmus opines that water intrusion and leaks that were present in the Coliseum were
exacerbated, if not caused by, the documented neglect of the Coliseum, and that said neglected
maintenance more likely than not contributed to exacerbated deterioration and damage of
asbestos-containing materials located in the Coliseum, thereby causing further asbestos fibers to
become airborne. Engineer Yarmus opines that 29 CFR § 1926.1101(f)(1)(i), (f)(2)(i), and
(f)(4)(ii) were applicable to work being performed at the Coliseum, and were violated during
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said work, which includes the failure to perform personal air-sampling and reasonable and
required asbestos exposure testing.
SIXTEEN AFFIDAVIT-TESTIMONIALS BY COLISEUM WORKERS ATTACHED AS
EXHIBIT O-
Attached are sixteen affidavits of former Coliseum workers. In total, the affidavits cover
the time period of 1972 until 2015. Each workers has unique experiences at the Coliseum, yet,
they all first-hand observed the neglected condition of the Coliseum, and they all describe
various events and work tasks that caused them caused them to inhale dust while working. Their
stories- in totality- present a complete picture of the toxic conditions that existed in the
working
Coliseum from 1972 until 2015.
II. SUMMARY OF RELEVANT NASSAU COLISEUM CONTRACTS/LEASES
a. 1972 County-Islanders Lease-
Section 41 of the 1972 County-Islanders lease stated that it was "expressly understood
that the relationship between the parties hereto is and shall remain at all times that of lessor and
lessee."
Page 1 stated that the Islanders were contracting for use of the Coliseum for 20 years.
Section 5(iv)(c) stated that the Islanders were permitted to erect a sign 'identifying the Coliseum
team.'
as the home of the hockey Section 5(iv)(e) stated that the County would provide janitorial
"shall"
and maintenance workers for the building, but the Islanders reimburse the County "for
the cost of providing such maintenance and building trades personnel who are required for the
events."
scheduled Section 9 stated that the Islanders agreed to indemnify the County for all
injuries arising from the negligence of the Islanders or "its agents, members, guests, visitors,
it."
opponents, supplier or persons for firms contracting with Section 10 stated that the Islanders
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would obtain and keep general liability insurance on which the County would be a named
insured.
b. 1979 County-Islanders Lease-
'lessee'
Page 1 of the County-Islanders 1979 lease deemed the Islanders a (not licensee).
'leasing'
Page 1 also stated that the Islanders were the demised property On Page 5, the
premises"
"demised was defined as (i) Sports Arena, (ii) locker rooms, (iii) storage space, (iv)
Islanders' Islanders'
office space, (v) ticket manager's space, and (vi) the Press Rooms.
occupy"
Section 4.1 stated that the Islanders "shall have the right to use and certain
Preview
FILED: NASSAU COUNTY CLERK 10/17/2018 06:49 PM INDEX NO. 603925/2013 NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 10/17/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ----------------X WILLIAM FARBER and MARY FARBER, Index No.: 603925/2013 Plaintiffs, DECLARATION OF JAY J. MASSARO, ESQ. -against- COUNTY OF NASSAU, COUNTY OF NASSAU DEPARTMENT OF PUBLIC WORKS, NEW YORK ISLANDERS HOCKEY CLUB, L.P., SMG, Defendants. X MEMORANDUM OF LAW DELL & DEAN, PLLC Attorneys for Plaintiff Jay J. Massaro 1225 Franklin Avenue, Suite 450 Garden City, New York 11530 Telephone: (516) 880-9700 Facsimile: (516) 880-9707 Email: jmassaro@d2triallaw.com 1 of 77 FILED: NASSAU COUNTY CLERK 10/17/2018 06:49 PM INDEX NO. 603925/2013 NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 10/17/2018 Table of Contents L EVIDENCE IN THE RECORD.............................................................1 AFFIDAVIT OF WILLIAM FARBER.....................................................................1 AFFIRMATION OF NATHAN I. ROTHMAN, M.D...................................................2 AFFIRMATION OF INDUSTRIAL HYGIENIST ROBERT C. BROWN...........................3 AFFIRMATION OF ENGINEER ANDREW R. YARMUS............................................5 SIXTEEN AFFIDAVIT-TESTIMONIALS BY COLISEUM WORKERS...........................6 IL SUMMARY OF RELEVANT NASSAU COLISEUM CONTRACTS/LEASES..6 a. 1972 County-Islanders Lease........................................................................6 b. 1979 County-Islanders Lease....................................................................... 7 c. 1979 SMG-County Contract..........................................................................9 d. Amendment to 1979 County-Islanders Lease.....................................................9 e. 1985 Tri-Party Lease between County, Islanders, & SMG....................................10 f. 2010 Islanders-SMG Lease........................................................................14 HI. SUMMARY OF DEPOSITIONS..........................................................15 ISLANDERS' DEPOSITION OF SENIOR VICE PRESIDENT MICHAEL PICKER............15 ISLANDERS' DEPOSITION OF DIRECTOR OF GAME ENTERTAINTMENT TIMOTHY BEACH................................................................................................................17 ISLANDERS' DEPOSITION OF DIRECTOR OF GAME ENTERTAINTMENT TIMOTHY BEACH- FROM DOWD LITIGATION..................................................................19 DEPOSITION OF SMG'S MAINTENANCE MANAGER KEVIN MCCAFFREY..............21 DEPOSITION OF NASSAU COUNTY ASBESTOS MANAGER ROBERT EXNER...........24 DEPOSITION OF NASSAU COUNTY CHIEF DEPUTY COMMISSIONER RICHARD MILLET................................................................................................................25 DEPOSITION OF NASSAU COUNTY BUILDING CONSTRUCTION ESTIMATOR MICHAEL PULEO - FROM THE WASS LITIGATION..............................................27 DEPOSITION OF NASSAU COUNTY DEPUTY COMMISSIONER WILLIAM NIMMO.......................................................................................................30 IV. LEGAL ARGUMENTS.....................................................................31 i 2 of 77 FILED: NASSAU COUNTY CLERK 10/17/2018 06:49 PM INDEX NO. 603925/2013 NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 10/17/2018 DEFENDANTS' 1. SPECIFIC CAUSATION ARGUMENT PURSUANT TO PARKER SHOULD BE REJECTED BECAUSE DEFENDANTS FAILED TO PROVE,PRIMA FACIE, PLAINTIFF WAS NOT EXPOSED TO A SUFFICIENT LEVEL OF TOXINS TO CAUSE AN ASBESTOS-RELATED DISEASE............................................................................................31 2. ASSUMING DEFENDANTS SUBMITTED SUFFICIENT EVIDENCE TO SUPPORT THEIR ARGUMENT THAT THE FRIABLE ASBESTOS WAS SAFE, THEN PLAINTIFF HAS RAISED A QUESTION OF FACT...........................37 3. ASSUMING DEFENDANTS SHIFTED THE BURDEN ON THE ISSUE OF AN ASBESTOS-RELATED DISEASE, PLAINTIFF HAS PRESENTED A QUESTION OF FACT EXISTS.................................................................................45 4. THE ISLANDERS OWED A DUTY TO PLAINTIFF BECAUSE THE ISLANDERS HAD A COMMON LAW DUTY AS A TENANT IN POSSESSION WITH MAINTENANCE AND REPAIR RESPONSIBILITIES........................46 'DUTY' 5. THE ISLANDERS OWED A TO PLAINTIFF BECAUSE AS A SMG BENEFICIARY' EMPLOYEE PLANITIFF WAS AN 'INTENDED OF ALL THE CONTRACTS/LEASES/LICENSES..........................................................50 6. DEFENDANTS FAILED TO PROVE, PRIMA FACIE, THAT A BATTERY DID NOT OCCUR, AND IN ANY EVENT, PLAINTIFF RAISED A QUESTION OF FACT.................................................................................................51 7. PLAINTIFF HAS A VALID NEGLIGENT INFLICTION OF DISTRESS CLAIM BECAUSE PLAINTIFF'S DIAGNOSIS OF AN ASBESTOS-RELATED DIEASE BASIS' ASBESTOS- PROVIDES A 'RATIONAL FOR FEAR OF FURTHER RELATED DISEASE AND/OR FEAR OF CANCER.....................................58 8. DEFENDANTS HAD A DUTY TO WARN..................................................61 9. PLAINTIFF HAS A MERITORIOUS FRAUDULENT CONCEALMENT CAUSE OF ACTION........................................................................................67 10. THE COUNTY'S ARGUMENT THAT THE FRAUDULENT CONCEALMENT AND BATTERY CLAIM ARE BARRED BY THE STATUTE OF LIMITATIONS LACKS MERIT....................................................................................69 11. PLAINTIF HAS A VALID LABOR LAW 241(6) CLAIM...............................71 12. PLAINTIFF HAS A VALID CLAIM FOR PUNITIVE DAMAGES...................72 13. ASPECTS OF THE MOTION NOT BEING OPPOSED.................................73 ii 3 of 77 FILED: NASSAU COUNTY CLERK 10/17/2018 06:49 PM INDEX NO. 603925/2013 NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 10/17/2018 I. EVIDENCE IN THE RECORD AFFIDAVIT OF WILLIAM FARBER ATTACHED AS EXHIBIT A- Mr. William Farber was born in 1954. He owned his own business "Beautiful Homes Company" Painting" Painting in 1981. The company then changed its name to "Long Island in around 1985 or 1986. Mr. Farber performed various painting jobs at various different locations with his company and with the Union, Local 1486. Mr. Farber reported that he was a prior smoker. Mr. Farber was a painter who worked part-time at the Nassau Coliseum from 2000 Islanders' through 2007. He reported that he worked before the games because he would be hired to paint the ice for the games. He reported that he would paint the ice about 3-5 times a year. He reported that painting the ice usually took 12 - 14 hours, but sometimes could take up Islanders' to 16 hours. His work activities included painting the ice in the Nassau Coliseum. His work also including running the compressor through the loading dock and onto the ice. painters' dungeon," Mr. Farber reported that the shop, which was nicknamed "the was located in the loading dock. Mr. Farber reported that he was required to eat lunch in the painters' painters' shop. The shop was covered in dirt and dust and had no roof or ceiling above painters' it. Mr. Farber reported that the pipe wrapping from the pipes above the shop would break off and fall onto the painters. He reported that the loading dock was always dusty and dirty. Mr. Farber reported that trucks would drive through the loading dock and cause the dust to become airborne. Mr. Farber reported that he asked why the loading dock looked like it was never cleaned, but was never given an answer. 4 of 77 FILED: NASSAU COUNTY CLERK 10/17/2018 06:49 PM INDEX NO. 603925/2013 NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 10/17/2018 Mr. Farber reported that he painted the interior of the Nassau Coliseum 2 - 3 times. When he painted the interior of the Nassau Coliseum, he worked all over the Nassau Coliseum. Mr. Farber reported that he painted the serving room, which was on one side of the skyboxes. He reported that the serving room had stoves and heating devices for food held in this room. He reported that as he was painting the serving room, he struck a large pole. He reported that his striking the pole caused the padding from the pipes above his head to crumble and fall on top of him. He then had to clean up the fallen padding. He reported that he was not given a mask or any other protective equipment during this. He reported that he later learned that the serving room was abated. He reported that the dust he noticed in the Nassau Coliseum was frayed and white, but some of the dust was darker colored, as though it had soot mixed in with it. He reported that he was always covered in dirt and dust when he got home after working at the Nassau Coliseum. Mr. Farber reported that he was never provided any mask or protective equipment when working at the Nassau Coliseum, and therefore never wore a mask or protective equipment when working in the Nassau Coliseum. Mr. Farber reported that no one ever told him that there was asbestos inside the Nassau Coliseum. Mr. Farber reported that Dr. Nathan Rothman has diagnosed him with an asbestos- related disease. AFFIRMATION OF NATHAN I. ATTACHED AS EXHIBIT C-- ROTHMAN, M.D., Nathan I Rothman, M.D., is a physician who is board-certified in internal medicine, pulmonary medicine, and critical care medicine. He is Chief of Pulmonary and Critical Care Division at St. John's Episcopal Hospital, Far Rockaway, New York. Dr. Rothman has provided treatment to plaintiff, and based on same, he opines to a reasonable degree of medical certainty 2 5 of 77 FILED: NASSAU COUNTY CLERK 10/17/2018 06:49 PM INDEX NO. 603925/2013 NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 10/17/2018 that plaintiff presents with an asbestos-related disease arising from plaintiff's work at the Nassau Coliseum. In his affirmation, Dr. Rothman opines to a reasonable degree of medical certainty that Mr. Farber has an asbestos-related disease that arises from his work at the Nassau Coliseum, namely asbestosis and occupational-induced asthma. Dr. Rothman's conclusions are based on the totality of Mr. Farber's presentation. Yet, some of the medical factors related to Dr. Rothman's diagnosis of asbestosis are (1) Mr. Farber's history of significant occupational asbestos exposure; and (2) chest x-rays that confirmed the presence of interstitial markings; (3) chest x-rays confirmed the presence of nodular changes in the lowr lung zones; (4) Chest CT revealed scarring at the left lung base; (5) and Mr. Farber's pulmonary function testing results were consistent with asbestosis. Dr. Rothman opines that he fully disagrees with the opinion of Defense Expert Utell that Mr. Farber does not suffer from asbestos-related diseases arising from his working at the Nassau Coliseum. Dr. Rothman opines that Dr. Utell is mistaken when he opined that radiological studies did not reveal interstitial lung disease. Dr. Rothman opines that Dr. Utell is mistaken in asserting that the medical community has not determined a link exists between asbestos-exposure and causing/exacerbating asthma. AFFIRMATION OF INDUSTRIAL HYGIENIST ROBERT C. BROWN ATTACHED AS EXHIBIT B-- Robert C. Brown is a board-certified Industrial Hygienist. He is a Certified Asbestos Inspector, Certified Project Monitor, Certified Management Planner, and Certified Designer in 3 6 of 77 FILED: NASSAU COUNTY CLERK 10/17/2018 06:49 PM INDEX NO. 603925/2013 NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 10/17/2018 Connecticut and New York. He is a former Director of Environmental Health and Laboratory for the Greenwich Department of Health, Greenwich, CT. In his affidavit, Industrial Hygienist Brown opines to a reasonable degree of certainty that significant amounts of friable asbestos existed at the Coliseum, and same was hazardous and dangerous and good and accepted environmental practice mandated that the hazards be removed from the building as soon as possible. Industrial Hygienist Brown opines that the significant friable asbestos that was documented in 2012 existed long before 2012, and the condition of asbestos-containing materials in the Coliseum was allowed to deteriorate as the result of chronic neglect and/or abuse of the building structure. Industrial Hygienist Brown opines that the asbestos-related disease diagnosed by Dr. Rothman arose from plaintiff's work at the Nassau Coliseum. Industrial Hygienist Brown notes that Mr. Farber worked as a painter from 2000 through 2007 in a building that was neglected from a maintenance viewpoint and contained significant amounts of friable asbestos, and studies have shown that exposing maintenance and janitorial staff to friable asbestos in poorly maintained buildings, such as the Coliseum, can cause asbestos-related diseases. Industrial Hygienist Brown discussed studies regarding similar activities as Mr. Farber was performing while in the Coliseum, and the amount of estimated asbestos inhalation from said tasks, and he cross compared same with Mr. Farber's activities. Industrial Hygienist Brown opines that Dr. Poole mistakenly relied in his report on area air-samples to assess the asbestos exposure Coliseum workers experienced while working. He opines that for air-samples to accurately depict a worker's exposure, it is essential that the sampling method represents the nature of the tasks being performed by the worker as well as the conditions prevailing at the time sampling is conducted and the physical configuration of the area 4 7 of 77 FILED: NASSAU COUNTY CLERK 10/17/2018 06:49 PM INDEX NO. 603925/2013 NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 10/17/2018 where the work takes place. He opines that the OSHA Asbestos Standard mandates that personal air-sampling be conducted for all workers who are routinely exposed to asbestos, and failure to carry out this simple, inexpensive procedure is negligent. He opines that there are no reports of personal air-sampling for asbestos at the Nassau Coliseum occurring prior to 2012. Industrial Hygienist Brown notes that in 2012 OSHA itself concluded that the air-monitoring occurring at the Coliseum was inadequate to assess risk and prior exposure, and OSHA issued a citation for same. AFFIRMATION OF ENGINEER ANDREW R. YARMUS ATTACED AS EXHIBIT D-- Andrew R. Yarmus, P.E., is a Professional Engineer licensed to practice in the State of New York. He is a New York State Certified Code Enforcement Official. He is a Licensed Asbestos Inspector and Project Designer. Engineer Yarmus opines to a reasonable degree of certainty that friable and damaged asbestos that existed in the Nassau Coliseum at work areas where it was likely to be disturbed and/or where workers were exposed to debris from same was a hazardous workers' condition requiring abatement. He opines that records and testimonials indicate that both friable and damaged asbestos was located in areas of the Coliseum in which workers were working until such time that complete abatement was finally undertaken post-OSHA citations. Engineer Yarmus opines that water intrusion and leaks that were present in the Coliseum were exacerbated, if not caused by, the documented neglect of the Coliseum, and that said neglected maintenance more likely than not contributed to exacerbated deterioration and damage of asbestos-containing materials located in the Coliseum, thereby causing further asbestos fibers to become airborne. Engineer Yarmus opines that 29 CFR § 1926.1101(f)(1)(i), (f)(2)(i), and (f)(4)(ii) were applicable to work being performed at the Coliseum, and were violated during 5 8 of 77 FILED: NASSAU COUNTY CLERK 10/17/2018 06:49 PM INDEX NO. 603925/2013 NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 10/17/2018 said work, which includes the failure to perform personal air-sampling and reasonable and required asbestos exposure testing. SIXTEEN AFFIDAVIT-TESTIMONIALS BY COLISEUM WORKERS ATTACHED AS EXHIBIT O- Attached are sixteen affidavits of former Coliseum workers. In total, the affidavits cover the time period of 1972 until 2015. Each workers has unique experiences at the Coliseum, yet, they all first-hand observed the neglected condition of the Coliseum, and they all describe various events and work tasks that caused them caused them to inhale dust while working. Their stories- in totality- present a complete picture of the toxic conditions that existed in the working Coliseum from 1972 until 2015. II. SUMMARY OF RELEVANT NASSAU COLISEUM CONTRACTS/LEASES a. 1972 County-Islanders Lease- Section 41 of the 1972 County-Islanders lease stated that it was "expressly understood that the relationship between the parties hereto is and shall remain at all times that of lessor and lessee." Page 1 stated that the Islanders were contracting for use of the Coliseum for 20 years. Section 5(iv)(c) stated that the Islanders were permitted to erect a sign 'identifying the Coliseum team.' as the home of the hockey Section 5(iv)(e) stated that the County would provide janitorial "shall" and maintenance workers for the building, but the Islanders reimburse the County "for the cost of providing such maintenance and building trades personnel who are required for the events." scheduled Section 9 stated that the Islanders agreed to indemnify the County for all injuries arising from the negligence of the Islanders or "its agents, members, guests, visitors, it." opponents, supplier or persons for firms contracting with Section 10 stated that the Islanders 6 9 of 77 FILED: NASSAU COUNTY CLERK 10/17/2018 06:49 PM INDEX NO. 603925/2013 NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 10/17/2018 would obtain and keep general liability insurance on which the County would be a named insured. b. 1979 County-Islanders Lease- 'lessee' Page 1 of the County-Islanders 1979 lease deemed the Islanders a (not licensee). 'leasing' Page 1 also stated that the Islanders were the demised property On Page 5, the premises" "demised was defined as (i) Sports Arena, (ii) locker rooms, (iii) storage space, (iv) Islanders' Islanders' office space, (v) ticket manager's space, and (vi) the Press Rooms. occupy" Section 4.1 stated that the Islanders "shall have the right to use and certain