Kinzelberg v St. Catherine of Siena Med. Ctr.

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Kinzelberg v St. Catherine of Siena Med. Ctr. 2017 NY Slip Op 33489(U) December 15, 2017 Supreme Court, Suffolk County Docket Number: Index No. 15-610904 Judge: Thomas F. Whelan Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. - INDEX NO. 610904/2015 FILED: SUFFOLK COUNTY CLERK 12/19/2017 11:37 AM NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 12/19/2017 SHORT ..oRM ORDER SHORT N)RM ORDER ORIGINALORIGINAL INDEX No. INDEX No. l 5-610904 15.610904 CAL. No. CAL No. 17-002790T 17-002790T SUPRElvtE NEW YORK YORK SUPREME COURTCOURT - STATE STATE OF OF NEW lAS. PART SUFFOLK COUNTY COUNTY l.AS. PART 33 - SUFFOLK PRESENT: PRESENT: Hon, Hon. THOMAS \\i'HELAN WHELAN THOMAS MOTION DATE 7-13-17 fl.--10TION ADJ. DATE 8-21-17 ADJ. 8-21-!7 Mol. Seq. Seq. # 002 lvloL 002 - MD J\.HJ -----=---"'-="'----'.:.=-a=---'--'---'---"-"='~a:,,;._:_~_ _ Justice of of the the Suprcm~ Suprem~ Court Court Justice -----------------------------------~--------------------------X ------------------------------------.--------------------------J( i'vlORTON 'YN MORTON KlNZELBERG KINZELBERG AND AND rvLi\RIL MARILYN KINZELBERG, KINZELBERG, GRUENBERG KELLY DELL\ GRUENBERG KELLY DELLA Attorney for for Plaintiffs Attorney Plaintiffs 700 Koehler Koehler Avenue 700 A venue Ronkonkoma, New 11779 R<:lnkonkoma, New York York 11779 PlaintifTs, Plaintiffs, against. ~ - againsl BO\VER \V P.C. BOWER LA LAW P.C Attorney Attorney for for Defendant De fondant 1220 RXR RXR Plaza l220 Plaza Uniondale. Uniondale. New New York York 11556 l 1556 ST. CA CATHERINE or SlENA SIENA i'v1EDICAL MEDICAL ST. THERINE Of CENTER. CENTER, Defrndant. Defendant. --------------------------------._-----------------------------x ---------------------------------T-----------------------------X Upon the followi following road Oil on thi~ thi, e-filcd .-filod moti\~tl motion for for summm:y summary iud.menl Upon • g papers papers mad judQtnen( ; NOliee Notice ofMotioni oflv1oti(ln/ Order Order to Show Show Cause Cause snpponing papers defendan!, uploaded 20 17 ; Notice of Cross Cross f\foliori Motion and <upponing and supporting papers by de fen da11 l. up !(laded June 14, 2017 Notice of ~upporting p.pers p11pers _; _; Amwering An 5wering Affidavits and supporting, 5upporting p'pe" bv pl.intiffs, d.te<l Au August 20 17 ~; Replying Affida i,•its Md pap~rs hv p lai ntiffa, dated gust 3, 2017 Rep lying Affidavit, A lltdav its and a11 d ,upporting supporti 11 g p.pers p.lpers bv defendant, defetidant, . dated {:md ng c.""",01 1'.ltlll~d j" it, ~l:l'p;}Ot"I n11,tion) it is, dated August August 91 201 20177 ; Other_; Olhor_, (Ulld 11fter .lk, h-ee1ri I,e•• i"s '''P~"tt Md and oppo~ed o~~o"d to the "'otio,,) ORDERED that that the the motion motion by defondant defendant St. Catherine Catherine of of Siena Siena Medical Medical Center ORDERED Center for summary summary judgmenl ils favor favor is denied, denied. judgment in its This is an an action action to 10 recover recover damages damages for for injuries injuries allegedly allegedly sustained sustained by plainliffMorton · This plaintiff J\forton Kinzelberg berg, derivatively, derivatively, on 2013; when when he slipped slipped and and Kinzelberg and and his his v.-ife, wife, Marilyn Marilyn Kinzel Kinzelberg, on January January 24; 24, 2013, fellI due due to ice at at the the premises o",ned by defendant defendant St. Catherine Catherine of of Siena Siena Medical Center CSt. ("Sl. fel premises o\\-ned Medical Center Catherine's"), in Smithtown, Smilhlovm, New York. The The accident aeeidenl allegedly allegedly occulTed occulTed in the the ambulance ambulance bay bay '"·hen when Catherine's"), New York. plainliff was exiting exiting the the hospital. hospilal, Plaintiff Plainliff claims claims that that defendant defendant was was negligent. negligent, among among other olher things, Ihings, in plaintiff was removing snow snow and and ice, ice, and and infailing infailing to 10 place place saJt salt and and sand sand on on the the ground. ground. removing According to 10 the the deposition deposition testimony testimony of of plaintitT, he presented the emergency emergency room roOm at St. St, plaintiff, he presented to the According Catherine's in in the the late late aftcmoon afternoon on on {he the day day of of the the subject subject accident accident after after falling falling down down stairs stairs in his his home. home. Catherine·s He \\--as "\'lISdischarged four or or five five hours hours later, later, around around 9:00 9:00 or Or 10:00 10;00 p.m. p,m, Plaintiff Plainti ff testified lesti fied that that there there was was He discharged four snow on on the the ground. ground, but but not not more more than Ihan a foot. foot. As As he exited exiled the the building building and and entered entered the Ihe ambulance ambulance bay, bay, snow [* 1] • • 1 of 4 .,. ,. FILED: SUFFOLK COUNTY CLERK 12/19/2017 11:37 AM NYSCEF DOC. NO. 66 INDEX NO. 610904/2015 RECEIVED NYSCEF: 12/19/2017 Kin,-:elbcrg Kin7.elberg v St. 51. Calherinc Catherine of of Siena Siena 5-610904 Index No. l15-610904 Page 2 ?Iaintiff hcld held his wi!e's wife's Ieft left hand ?laintiff hand "ith ,\,ith his right right hand. hand_ Plaintiff Plaintiff furthcr further testified testified that he then then slipped slipped on ICe, v whICh after he hc fell, and that his wife fell next ~ce, . .foch he saw atter next to him. Plaintiff Plaintiff hcard heard an unknown uiiknov,n person person yell veil ... thai that happened happened again" again" from .."~h C~h ... from the doorway. dooricvay The accident accident occurred occurred right outside outside of of the emergency emergcn~y eXIt where he entered entered the building buildmg earlier ex It ,vhere ea.r!ier in the day. A security security guard guard picked picked plaintiff plaintiff up from the ground, walked to their their car. PlaintifTwas Plaintiff ,vas not given any anv further fimher treatment treatment that night, night ground, <1nd and he and his \vifc wife walked but early the next next morning. morning. • · ~- ' hut returned returned to St SI. Catherine's Catherine's early Marilyn Kinzelberg Kinzelberg testified tcstified that St. I\.farilyn that shc she accompanied accompanied plaintiff pl::iintiff to thc the emergency emergency room room at St Catherine Hospital early evening Catherine Hospitat in the early evening after after he fell down down stairs stc1irs at ilt homc. home. It Was v..-~ dark d;;i.;k and cold at ut the time of there may been snow sno\V on the ground, ground, bm but it was ,vc1s not actively actively raining raining or of the accident accident and and there may have been sno,ving. inzeiberg testified testified that that she noticed notkcd ··grayish" colored ice under under her when when she fell outside outside snowing. Ms_ M,. K Kinzelberg "grayish" colored emergency room room entrance entrance where the emf:'.rgency \vhere she entered entered the hospital hospital earlier, earlier. While While Ms. Jvls. Kinzelberg Kinzelberg was ahle to own, a security security guard get up on her O\Vn, guard and woman \.Voman wearing wearing scrubs scrubs helped hclpt>d plaintiff phi.inti ff up. Ms. r-.fa. Kinzelberg Kim:elbcrg and plaintiff were not offered offered any medical plaintifhvere medical treatment treatment immediately immediately following following the Lhe accident; accident; however, hov,;evcr, plaintiff plaintiff returned to the hospital the following morning by ambulance. returned h~l!ipital fr-i-llowing morning ambulance. James Drevas, director of 51. Catherine's, 16 out of 18 James Drevas, the director of plant pl:lnl operations operations at St. Catherine's, testified testified that that 16 of 18 employees within within the plant plant operations employees operations department departrnent were responsiblc responsible for snow sno,v and and ice removal removal throughout throughout other departments departments Were were recruited recruited to plant plant operations operations to ro assist in the hospital hospital premises. premises. Employees Employees from other snow removal, removal, as needed. needed. The shift "on watch" snow shift employee employee "on watch" would v..-ould be responsible responsible for inspecting inspecting for ice i<.:e near the main entrance, entrance, emergency emergency department nearthe department entrance, entrance, and sidewalks sidewalks in the immediate immedinte area area of of the however, all plant plant operations facility; however, operations employees employees were responsible responsible for periodically periodically inspecting inspecting the premises srnl\V and ice. The procedurc procedure for clearing clearing snow snow in !he ambulance bay would \a,'ould be to remove remove premises for snow the ambulance snow from the area. SnO\v Snow or ice remediation the snow remediation would \i,,'ould be recorded recorded in a logbook. logbook. Kevin Kuzo\v, Kuzow, a security security omccr SI. Catherine's, Kevin officer at St Catherine'sj te,tified testified that he was \\'as alerted alerted that that a man had fallcn in the ambulance ambulance hay, bay, responded fallen respond~d to the scene, S(.::ene, and helped helped plaintiff ph:iintiff to his feet along along with \"lith emergency room room staff staff and Marilyn emergency r.farilyn Kinzelberg, Kinzclbcrg. Plaintifffcll Plaintiff fell were ambulances rimbulances pull up to the curb to unload patients. patients. 1\-fr. Mr. Kuzow Kuzow testi testified unload fie<l that plaintiff plain1i ff Was was brollght brought back into the emergency emergency room room to be he reevaluated. Plaintiff told Me. K U7.0W that he misstepped on his right foot and fell to the grollnd. reevaluated- Plaintiff t'l,,fr_ Kumv,., thut misstepped foot foll ground. Defendant St. SI. Catherine's Catherine's now Defendant now moves moves for summary summary judgment judgment dismissing dismissing the complaint compluint on the grounds that plaintiff's plaintiffs injuries injuries \•.-ere were nO! grounds not caused cau~ed by the ,uhject subject accident accident and that that it neither neither created creuted the alleged icy condition condition nor nor had had actual actual or con8tructive constructive notice notice of of the icy condition. condition_ Defendant Defendant submits, submits, in alleged support of of the motion, motion, copies copies of of the pleadings: pleadings: the note support note of of iS8ue; issue; the transcripts transcripts of of the deposition deposition testimony of of plaintiff. plaintiff, Mari]yn Marilyn Kinzelberg, Kinzelberg, James James Drevas, Drevas, and Kevin Kevin Kuzow; Kuzow; various various medical medical records; records; testimony the incident incident report; report; and Jogbook logbook maintenance maintcnanec records. records. The Court Court initiaUy initially notes notes that the the ]ogbook logbook maintenance records records are inadmissible, inadmissible, as Lhey they were were not authenticated authenticated as business business records records (see CPLR CPLR maintenance 4518 raJ). In opposition, plaintiff argues that defendant failed to demonstrate that it did not have 45 l 8 [aJ). opposition, p1ainti fT argues defendant demonstrate thal not constructive notice notice of of the the icy condition. condition. Plaintiff Plaintiff submits, submits, in opposition, opposition, the the transcripts transcripts of of the deposition deposition constructive testimony ofpJaintift: of plaint ill; Marilyn Marilyn Kim:elberg, Kim:elberg, James James Dreva:s, Drevas, and Kevin Kevin Kuzow. Kuzow, testimony [* 2] 2 of 4 FILED: SUFFOLK COUNTY CLERK 12/19/2017 11:37 AM NYSCEF DOC. NO. 66 INDEX NO. 610904/2015 RECEIVED NYSCEF: 12/19/2017 Kinzclbcrg St. Catherine Catherine of of Si Siena Kinzc 1berg v St en a 15-610904 Index No. 15-610904 Page 3 of a summary summary judgment motion make a prima facie shov,,·ing showing of of erititlement entitlement proponent of judgment mo lion must make prima facie The proponent matter of of la\.v law by tendering tendering evidence evidence in admissible admissible fom1 form sufficient sufficient to eliminate eliminate any to judgment judgment as a matter material issues issues of offact 320, 508 NYS2d material fact from the case (see AIl'llrez Alvarez••v Prospect Prospect Hasp., Hosp., 68 NY2d NY2d 320, NYS2d 923 [1986]; JJ'iuegratl Willegradv •• New York Vlliv. Med. Or., 64 NY2d 851, 487 NYS2d 316 [1985]). movant Nen• York U11il'. ,Ued. Ctr., N)'2d N'{S2d [ J985] }. The movant initial burden of proving cntitlement to summary summary judgment ,. l'•lew New York York Univ. Vniv. 1,.,ed. MM. has the initial burden of proving entitlement judgment ((Winegrad Jf"inegfiul •· Ctr., supra). Failure Clr., supra), Failure to make make such a sho,,,,.'ing showing requires requires denial of of the motion, motion, regardless regardless of of the sufficienn' sufficiency of papers ((Winegrad Jl'inegrad IIv lVew proof has been · of the opposing opposing papers New l'orh York U1liv. UII"'. ;1,led. Med. Ctr., .suprt1)_ supra). Once Once such such proofhas offered, the burden then shifts shifts to the opposing opposing party who must proffer evidence in admissib1e admissible fom1 form and burden then party \V}m proffer evidence offered, must shmv show facts sufficient sufficient to require require a trial of of any issue issuc of offact defeat the motion motion for summary summary must fact to defeat judgment (CPLR 3212 3212 [b]; Alvarez Hasp., supra; of New judgment (CPLR Alvarez i'v Prospect Prospect llOJ;p., supra~ Zuckerman Zuckt.~,-m~tn v City of New York, 49 NY2d NY2d 557,427 NYS2d [1980]). As the Ihe court's court's function function on such a motion motion is to determine determine whether whether issues issues 557,427 NYS2d 595 [1980]). of to resorv€;" be viewed of fact exist, not nOIto resolve issues issues of of fact or to determine determine matters maUers nf of credibility, credibi lity, evidence evidence must mUSIbe viewed party (see Chimho Bolfrar, 142 AD3d NYS3d in the Jight light most favorable favorable to the nonmoving nonmoving party Chimbo v BOU"lIr, AU3d 944, 37 NYS3d 2016]; Pearson McBride, LLC, AD3d 895, 895. 883 NYS2d 2009J; 339 [2d Dept 20161 Pearson v Db: l'ttcBride. LLC. 63 AD3d NYS2d 53 [2d Dept 2009]; Ko/ivll.' 14 AD3d AD3d 493, 493, 787 NYS2d 2005]), Ko/i.,.·a.t v Kirchoff, Kirchoff, 14 NYS2d 392 [2d Dept 2005]). The owner owner or possessor of real rcal property to maintain maintain the property reasonably safe possessor of property has a duty lo property in a reasonably condition so as to prcvent OCCurrenCeof of foreseeable foreseeable injurie.s injuries (see Peralta condition prevent the occurrence Pera/tQ \'v Henriquez, Henriquez, l100 00 NY2d NY2d 139,760 [2003]; Nalllln 507, 429 NYS2d 139, 760 NYS2d NYS2d 741 [2003]; Nallan ••v He/msley-Spear, Helmsley-Spear, Inc., Inc., 50 NY2d NY2d 507,429 NYS2d 606 [1980J; Basso Miller, 40 NY2d [1976]; Put/llIlIl AD2d 812. 812, 361 NYS2d Basso i•v lUiller, NY2d 233, 386 NYS2d NYS2d 564 [1976]; Putnam vvS/out, Stout, 46 AD2d N)rS2d 205 j2d Dept 1974], 1974J, affi.l afJd 38 NY2d 607, 381 :NYS2d Frallk v JS JS Hemps/ead Realty, LLC LLC 136 f2d NY2d 607,381 NYS2d 848 [1976J; Fnmk Hempstead Realty. ADJd 742, 24 NYS3d Dept 2015]; 2015]; Guz.mun Guzman ••v State State of of New York, 129 AD3d AD3d 775, 10 NYS3d ADJd N''S3d 714 [2d Dept New YorA, NYS3d JJ,'a.,·hington Mut., Jfut., 1I1C., Inc., 88 AD3d NYS2d 336 [2d Dept 598 (2d [2d Dept 2015}~ 2015}; tlfi/ewdi Milew..ki 1v1 Wa,,'hing/on AD3d 853,931 853, 931 NYS2d Dcpt 2011]). establish liability liability in a slip and fall fall case invoiving involving snm,v snow or ice~ ice, a plaintiffmusl establish that a 2011 J). To establish plaintiff must establish dangerous or defective defective condition condition caused caused his or her injuries, injuries, and that the defendant defendant mmer owner or Or possessor dangerous possessor crealI'd the condition or had aerna! or constructive notice of it (see Del'lin v Sefimllj, 116 AD3d 730, 986 created condition acrual constrnctive notice of f)e~'lin 1• Selimaj, AD3d 730~ NYS2d Dept 2014]; 2014]; Viera v Rymllzionek, Amd 915,977 915, 977 NYS2d 2013]; Rymdzionek, l112 12 AD3d NYS2d 390 [2d Dept 2013t NYS2d 149 [2d Dept Cruz v Rampersad, 110 AD3d 669, 972 NYS2d 302 [2d Dept 2013]; Morreafe v !'.:"sposito,109 ADJd Cruz Rampersad. AD3d NYS2d 2013]; .Morreale~• Esposito, 109 AD3d 800,971 [2d Dept 2013]; 2013]; Denardo AD3d 929,943 929, 943 NYS2d 591l [2d Dept 971 NYS2d NYS2d 209 l2d Denardo vvZilltyk, Ziatyk, 95 AD3d NYS2d 59 800, 2012]; Flores Corp., 94 AD3d AD3d 945, 942 NYS2d Dept 2012]; 2012]; Medina 2012t Flores••v BAJ BAJ Holdillg Holding Corp., NYS2d 202 [2d Dept Afedina v La Fiura Corp., 69 AD3d AD3d 686, 895 NYS2d [2d Dept 2010]; 2010]; see Gordon v American Fiura Dev. Corp., NYS2d 98 f2d see also Gordon American Muuum Afuieum of Na/ural 836, 501 501 NYS2d constitute constructive constructive notice, notice, the of Natural History, History, 67 NY2d NY2d 836, NYS2d 646 [[1986]). 1986]). To constitute condition must be visible visible and apparent, apparent, and mu.st must exist exist for a sut11cicnt sufficient length length of of time time before accident condition before the aci;:ident defcndant to discover discover and remedy remedy it (Gordon (Gordon vAmeric,m v American Museum ofNaturllf Hi<tory. to permit permit the defcndan{ Mu..-.eum o/Natural.Hb,tory. ,<upra;see Stewart v Sherwif Sherwil Holding Corp., 94 AD3d AD3d 977, 942 NYS2d Dept 2012)~ 2012]; Mellina :mpra; see Stewart Holding Corp., NYS2d 1174 74 [2d Dept Medina v La Fiura Dev. Corp., Corp., supra). supra). A defendant defendant moving moving for summary ,;ummary judgment fall case case La Fiura judgment in a slip and fo.11 involving snow snow or ice has: has the initial inilial burden of making making a prima facie shoVl-'ing shol'>,ng that it neither ncither created created the Ihe involving burden of prima fade condition nor had actual actual or constructive constructive notice notice of oftbe condition (see Samekll 151 the condition Somek/1 v Valley Na/f. Natl. Bank, Bank, 151 condition AD3d 783, 57 NYS3d 487 [2d Dept 2017]; Burniston ,. Ranric En/ers. Corp., 134 AD3d 973, 21 ADJd NYS3d Dept 2017]; Burni.5ton •· Ranric E11ters. Corp., AD3d 21 NYS3d 2015J; Cruz Cruz v Rampersad, supra; McCurlly Inc., 109 AD3d NYS3d 694 [2d Dept 2015]; Rampersad, .supra; McCurdy v KYMA KYMA Holdings, Holdings, inc., 971 NYS2d 1377 [2d Dept 20 2013]; Smith v Cl,rist's Christ's First Church of of Hempstead, 799, 971 NYS2d 13 l 3 J; Smit/1 Fitst Presbyterian Presbyterian Church Hempstead, 93 AD3d 83 839, 2111 pd [2d Dcpl Dept 2012]). 2012]). AD3d 9, 941 NYS2d NYS2d 21 [* 3] 3 of 4 _ - .., FILED: SUFFOLK COUNTY CLERK 12/19/2017 11:37 AM • NYSCEF DOC. NO. 66 INDEX NO. 610904/2015 "F RECEIVED NYSCEF: 12/19/2017 Kinzel berg v St Kinzelberg 51. Catherine Catherine of of Siena Siena Index No. 15-610904 lndex 1'10.15-610904 Page Page 4 St prim a facic, SI. Catherine's Catherine's failed lo to establish, establish, prima facie, that it did Jid TI()t n"t have actual aetual or constructive constructive notice of condition in the ambulance ambulance hay. The deposition deposition testimony testimony of of t'v1r. Mr. Drcvas Drevas and r,_.fr. Mr. Kuz.ov,..Kurow the alleged icy condition \.Vas insufficient to satisfy St. Cathcrlnc"s initial burden as they daimcd they did not have personal was insufficientt" Catherine's burden as claimed kno\,;ledgc knowledge as to any inspection inspection or as to the condition condition of of the s.uhject suhject ambulance amhulance bay the day before or the of plaintift's accident (.re.i:~ (see Martinez Khaimov, 74 AD3d 1031, 1031,906 2010]; day of plaintiff's accident Alartinez l'v Klu1imm>, 906 NYS2d N YS2d 274 [2d Dept 20 l Ot Baines AD3d 528, 883 NYS2d 2009); Taylor Tay/or v Rochdale Vi/., Baiiles l' G & D Ventures, J.,'entures, lac., Inc., 64 AD3d NYS2d 256 [2d Dept 2OO9J; Rochdale Vil., Inc., 60 A AD3d 561 [2d Dept 2009]). 2009]). Reference RetCrcnee io to general general cleaning cleaning and inspection inspection D3d 930, 875 NYS2d NYS2d 561 practices insufficient to estab1ish establish lack of of constructive constructive notice notice v.ithout "ithout specificity specificity as to cleaning cleaning or practices is insufficient inspection Ansari l'v ll1B LLC. 137 AD3d 28 NYS3d N"YS3d 397 [2d inspection of of the subjed subject area area (set~ (see Allsari MB H,,mpfons, Hamptoll .•, LLC, AD3d 1174, 1174,28 Dept 2016]; 2016]; Garda-"Jf Garda-Monsalve v J1'e/lington Welling/on Leasing, loP., 123 J\D3d AD3d 1085, 1 NYS3d Dept Dept onsaf-ve •t Lea.'f;ing, L.P., NYS3d 228 [2d Dept 2014J; .•, Inc., AD3d 923, 989 NYS2d Dept 2014]; 2014]; 2014 J; Rodriguez Rodriguez 1•v Shoprite Shoprite Supermarket Supetmarlt.et.'i, Inc., 119 }JJ3d NYS2d 855 [2d Dept Kferman AD3d 907,946 907, 946 NYS2d Dept 2012)). 2012]). Neither bas Kferman l'v Fine Fine Fare Fare Supermarket, Supermarket, 96 AD3d N)'S2d 506 [2d Dept Neither has defendant submitted submitted "any "any evidence evidence sho showing allegedly dangerous dangerous condition condition existed existed for an defendant ....~ng that the alkgcdly insufficient length length of of time for for them them to h~ve have discovered discovered and rcmcditd temcdied il, it, as is its burden'. (Raju v burden" (Raju insufficient Cortlalldt Town TOWIlClr., AD3d 874_, 874, 874-875, 874-875, 834 NYS2d Dept 2007]). 2007]). As St. Catherine's Catherine's Cortlandt Ctr., 38 AD3d NYS2d 211, 213 [2d Dept facie burden, m"tion frir for summary summary judgment regardless of of the did not meet its prIma prima facic burden, the motion judgment must be denied regardless sufficiency of of plaintiffs' oppositi"n papers (see IVi11egrad Willegrad •tv l't'ew New York York Unfr. Univ. 1'-fed. Med. Ctr Clr•. supra). ~ufficiency plaintiffs' opposition •. supra). Accordingly, the motion motion by defendant defendant St. SI. Cf:ltherine's Catherine's for summary summary judgment Its favor is Accordingly, judgment in its denied. denied. Dated: f:J-h d 17 FINAL DISPOSITION DISPOSITION FlNAL [* 4] 11. X L .. '"""'"B NON-FINAL DISPOSITION 4 of 4

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