Cortes v Westchester County

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Cortes v Westchester County 2017 NY Slip Op 33510(U) December 20, 2017 Supreme Court, Westchester County Docket Number: Index No. 50037/2016 Judge: Lawrence H. Ecker 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. FILED: WESTCHESTER COUNTY CLERK 12/22/2017 10:35 AM NYSCEF DOC. NO. 85 INDEX NO. 50037/2016 RECEIVED NYSCEF: 12/20/2017 To commence commence the the statutory statutory time time for for appeals appeals as of of right right (CPLR 5513[a]), 5513[a)), you you are advised advised to to serve serve a copy copy of of this this order, order, with with notice notice of of entry, entry, upon upon all parties. parties. SUPREME SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK YORK COUNTY COUNTY OF WESTCHESTER WESTCHESTER ------------------X ---------------------------------------------------------------------------)( BARBARA BARBARA CORTES CORTES and BARBARA BARBARA CORTES CORTES AS TEMPORARY TEMPORARY GUARDIAN GUARDIAN OF THE THE PROPERTY PROPERTY AND AND PERSON OF DENNIS DENNIS A. CORTES, CORTES, PERSON INDE)( NO. 50037/2016 50037/2016 INDEX DECISION/ORDER DECISION/ORDER Plaintiffs, Plaintiffs, Motion Date: Date: 9/13/17 9/13/17 Motion Motion Seqs. Seqs. 4, 5 Motion -against-againstWESTCHESTER WESTCHESTER COUNTY, COUNTY, and KATHLEEN KATHLEEN O'CONNOR, O'CONNOR, COMMISSIONER COMMISSIONER OF WESTCHESTER WESTCHESTER COUNTY COUNTY DEPARTMENT DEPARTMENT OF PARKS, PARKS, RECREATION, RECREATION, AND AND CONSERVATION, CONSERVATION, Defendants. _ Defendants. ---------X ~C;~-~-~--J---------------------------------------------------------------)( ECKER,, J.. The The following following papers papers numbered numbered 1 through through 44 were were read on the the motion motion of of WESTCHESTER WESTCHESTER COUNTY, COUNTY, and KATHLEEN KATHLEEN O'CONNOR, O'CONNOR, COMMISSIONER COMMISSIONER OF WESTCHESTER COUNTY COUNTY DEPARTMENT DEPARTMENT OF PARKS, PARKS, RECREATION, RECREATION, AND AND WESTCHESTER CONSERVATION ("defendants"), ("defendants"), made made pursuant pursuant to CPLR CPLR 3212, 3212, for for an order order granting granting CONSERVATION summary judgment dismissal of of the the complaint, complaint, as against against BARBARA BARBARA CORTES CORTES and summary judgment dismissal BARBARA CORTES CORTES AS AS TEMPORARY TEMPORARY GUARDIAN GUARDIAN OF THE THE PROPERTY PROPERTY AND AND BARBARA PERSON OF DENNIS DENNIS A. CORTES CORTES (collectively (collectively "plaintiff'') "plaintiff') (Mot (Mot Seq. 4); and on the PERSON cross-motion cross-motion of of plaintiff, plaintiff, made made pursuant pursuant to CPLR CPLR 3212, 3212, for for an order order granting granting plaintiff's plaintiff's summary judgment of summary judgment of liability liability as against against defendants defendants (Mot (Mot Seq 5): NUMBERED NUMBERED PAPERS PAPERS Motion Sequence Sequence 4 Motion Notice of of Motion, Motion, Affirmation, Affirmation, Exhibits Exhibits A-Y A-Y Notice Affirmation in Opposition, Opposition, Exhibits Exhibits A-F A-F 11 Affirmation Reply Reply Affirmation Affirmation 11 1 - 27 28-34 28 - 34 35 Part Part rules rules require require plaintiff plaintiff to use numbered numbered exhibit exhibit tabs. tabs. -1- [* 1] 1 of 6 FILED: WESTCHESTER COUNTY CLERK 12/22/2017 10:35 AM NYSCEF DOC. NO. 85 INDEX NO. 50037/2016 RECEIVED NYSCEF: 12/20/2017 Motion Sequence Sequence 5 Motion Notice of of Cross-Motion, Cross-Motion, Exhibits Exhibits A-G A-G Notice Affirmation in Opposition Opposition Affirmation 36 --43 43 44 44 Upon the foregoing foregoing papers, papers, the court court determines determines as follows: Upon follows: this action action for for personal personal injuries, injuries, plaintiff plaintiff alleges alleges on the afternoon afternoon of August 24,2014, In this August 24, 2014, Dennis Cortes Cortes fell off off the Derby Derby Racer Racer ride 22 at Rye Playland Playland Amusement Amusement Park ("Playland") (UPlayland") Dennis located in "Rye (Westchester County), County), New New York. Barbara Barbara Cortes, Cortes, sues sues derivatively derivatively as located Rye (Westchester Dennis's mother. mother. Defendants Defendants move, move, pursuant pursuant to CPLR CPLR 3212, 3212, to dismiss dismiss the complaint, complaint, and Dennis's plaintiff cross-moves, cross-moves, pursuant pursuant to CPLR CPLR 3212, 3212, for liability. plaintiff for summary summary judgment judgment as to liability. November 10, 2014, 2014, plaintiffs plaintiffs served served a Notice Notice of Claim Claim on defendants. defendants. [Deft. Ex. On November The Notice Notice of of Claim Claim states states in relevant relevant part: A]. The 2. 3. The nature nature of the claim: The Tort/Negligence Tort/Negligence The time time when, place where where and the manner manner in which The when, the place which the claim arose: the claim arose: approximately 12:30 12:30 P.M. on August 2014, while while At approximately August 24, 2014, Derby Racer Racer at Rye Playland Playland Amusement Amusement Park, riding the the Derby DENNIS A. CORTES CORTES was caused caused to fall off off the ride due to DENNIS lack of of proper proper safety equipment and negligent negligent supervision safety equipment supervision of lack Playland Personnel. Personnel. At time and place place stated herein Playland At the time stated herein DENNIS A. CORTES CORTES was lawfully permitted permitted upon upon aforesaid aforesaid DENNIS was lawfully area when negligence on his part, the claimant claimant area when without without any negligence was caused caused to fall headlong headlong to the floor boards of the Derby Derby was floor boards Racer ride with great force, due due to the negligence negligence of Racer great force, of the County of Westchester, Westchester, their agents, servants, servants, and/or and/or their agents, County employees in the ownership, ownership, operation operation maintenance, maintenance, employees management, construction construction and control control of the Rye Playland Playland management, Amusement Park. Amusement February, 2015, 2015, defendants defendants conducted GML 50-h hearings hearings of of Dennis Dennis In February, conducted GML Cortes and his parents, parents, Barbara Barbara Cortes Cortes and Daniel Daniel Cortes. The complaint, complaint, filed Cortes Cortes. The Bronx Supreme Supreme Court Court on October October 8, 2015, 2015, alleges alleges causes causes of of action action for for in Bronx negligence based based on numerous numerous theories theories against Westchester County County and negligence against Westchester Kathleen O'Connor, O'Connor, Commissioner Commissioner of of Parks. as defendants. defendants. On December December 24, Kathleen 2015, defendants defendants filed their their answer. answer. By Decision/Order Decision/Order of this court, dated dated May 2015, 17,2016, action was was removed removed from from the Bronx Bronx to Westchester County. On 17, 2016, the action Westchester County. 22 merry-go-round ride where where the patron patron sits on a simulated simulated horse. horse. A merry-go-round -2-2- [* 2] 2 of 6 FILED: WESTCHESTER COUNTY CLERK 12/22/2017 10:35 AM NYSCEF DOC. NO. 85 INDEX NO. 50037/2016 RECEIVED NYSCEF: 12/20/2017 July 6, 6,2016, plaintiffs served served defendants defendants with the the Verified Verified Bill of of Particulars. Particulars. July 2016, plaintiffs Following depositions depositions conducted conducted between between October, October, 2016, 2016, and January, January, 2017, 2017, Following plaintiffs filed filed the the note note of of issue issue on May May 23, 23,2017. Defendants' motion motion and 2017. Defendants' plaintiffs plaintiff's cross-motion cross-motion were were filed on July July 7, 7,2017. 2017. plaintiffs support of of their their motion motion for for summary summary judgment, defendants initially initially judgment, defendants In support argue the the causes causes of of action action cannot cannot be maintained maintained against against Kathleen Kathleen O'Connor, O'Connor, as argue she had no personal personal involvement involvement in the day-to-day day-to-day operations operations of of Playland, Playland, and she such, the the complaint complaint against against her her should should be dismissed. dismissed. Defendants Defendants further further as such, argue the the court court lacks lacks subject subject matter matter jurisdiction over the the causes causes of of action action pied pled in argue jurisdiction over the complaint complaint and Bill of of Particulars Particulars because because they they were were not originally originally pied pled in the the Notice of of Claim; Claim; that that the the causes causes of of action action in the the Notice Notice of of Claim Claim should should be Notice dismissed against against the the defendants; defendants; that that as a matter matter of of law, the the County County did not dismissed breach its duty; duty; and that that plaintiff plaintiff assumed assumed the risk of of riding the the Derby Derby Racer Racer such breach that defendants defendants owed owed no duty duty of of care care to plaintiff. plaintiff. that Summary judgment is a drastic Summary judgment drastic remedy remedy that that deprives deprives a litigant litigant of of his or day in court, court, and it should should be granted granted only only where where the the moving moving party party "has "has her day tender[ed] sufficient sufficient evidence evidence to demonstrate demonstrate the the absence absence of of any any material material issues issues tender[ed] of fact" fact" Alvarez Prospect Hosp., Hosp., 68 NY2d 320 [1986]; [1986]; Andre Pomeroy, 35 of Alvarez v Prospect Andre v Pomeroy, NY2d 361, 364 [1974]. [1974]. To To grant grant summary summary judgment, must clearly clearly appear appear that that NY2d judgment, it must material and and triable triable issue issue of of fact fact is presented. presented. Issue Issue finding, finding, rather rather than than issue issue no material determination, is the the key to the the procedure. procedure. Matter Matter of of Suffolk Suffolk Co. Dept. of of Social Social determination, Services v James James M., 83 NY2d NY2d 178 [1994]; [1994]; Sillman Sillman v Twentieth Twentieth Century-Fox Century-Fox Services NY2d 395, 404 404 [1957]. [1957]. In making making this this determination, determination, the the court court must must Film Corp, 3 NY2d view the the evidence evidence in the the light light most most favorable favorable to the the party party opposing opposing the the motion, motion, view must give give that that party party the the benefit benefit of of every every inference inference which which can be drawn drawn from from and must the evidence. evidence. Jenack Jenack Estate Estate Appraisers Rabizadeh, 22 the Appraisers & Auctioneers, Auctioneers, Inc. v Rabizadeh, NY3d 470, 470, 475 475 [2013]; [2013]; Nash Nash v Port Port Washington Washington Union Union Free Free School School District, District, 83 NY3d AD3d 136; 146 [2d Dept Dept 2011]; 2011]; Pearson Pearson v Dix McBride, McBride, LLC, 63 AD3d AD3d 895 [2d AD3d Dept 2009]. 2009]. Every Every available available inference inference must must be drawn drawn in the [non-moving] [non-moving] party's party's Dept favor. De Lourdes Lourdes Torres Torres v Jones, Jones, 26 NY3d 742, 763 [2016]. [2016]. favor. The moving moving party party is entitled entitled to summary summary judgment only if it tenders tenders The judgment only evidence sufficient sufficient to eliminate eliminate all material material issues issues of of fact fact from from the the case. evidence Winegrad v New New York York University University Medical Medical Center, Center, 64 NY2d 851, 853 [1985]; [1985]; Winegrad Zuckerman v City City of of New New York, 49 NY2d 557, 562 [1980]. [1980]. Failure Failure to make make such such Zuckerman prima facie facie "showing "showing requires requires denial denial of of the the motion, motion, regardless regardless of of the the sufficiency sufficiency prima of the opposing opposing papers." papers." Pullman Pullman v Silverman, Silverman, 28 NY3d 1060 1060 [2016]; [2016]; Winegrad Winegrad of New York University University Medical Medical Center, supra. Put another v New another way, in order order to obtain obtain summary judgment, must be no triable issue of fact presented ... ...even summary judgment, there there must triable issue fact presented even the color of of a triable triable issue issue of of fact remedy. In re Cuttitta Cuttitto Family fact forecloses forecloses the remedy. Family Trust, color 3d 656 656 [2d Dept Dept 2004], 10 AD AD3d 2004], quoting quoting LNL Constr. v MTF MTF Indus., Indus., 190 AD2d AD2d 714, Dept 1993]. 1993]. If a party party makes makes a prima prima facie showing showing of its entitlement entitlement to 715 [2d Dept summary Judgment, Judgment, the opposing party bears bears the burden burden of establishing summary opposing party establishing the -3-3- [* 3] 3 of 6 FILED: WESTCHESTER COUNTY CLERK 12/22/2017 10:35 AM NYSCEF DOC. NO. 85 INDEX NO. 50037/2016 RECEIVED NYSCEF: 12/20/2017 supra; New York, supra; of New existence issue of City of Zuckerman, v City fact. Zuckerman, of fact. triable issue of a triable existence of Alvarez supra. Hosp., supra. Prospect Hosp., Alvarez v Prospect cannot be maintained action cannot of action causes of Addressing maintained the causes that the argument that the argument Addressing the of operations of day-to-day operations as against not involved involved in the the day-to-day was not she was since she O'Connor since against O'Connor be may employer an superior, Playland, pursuant employer may respondeat superior, of respondeat doctrine of the doctrine pursuant to the Playland, liable when the employee negligently or intentionally, intentionally, so long as the tortious tortious acts negligently employee acts when the liable the employment. conduct is generally generally foreseeable incident of of the employment. Scott Scott natural incident foreseeable and a natural conduct the of Commissioner of the 3d 885 Dept 2016]. County Commissioner 2016]. As County 885 [2d Dept AD3d Lopez, 136 AD v Lopez, of operation of the operation overseeing the Department of Parks, Recreation Recreation and Conservation Conservation overseeing of Parks, Department proffered her Playland, all County parks and recreation facilities, including Playland, her proffered including facilities, recreation County parks the operation defense that lack of of day-to-day day-to-day involvement involvement in the operation of Playland Playland lacks lacks that a lack defense declines the court Accordingly, the merit under under the respondeat superior. court declines superior. Accordingly, of respondeat doctrine of the doctrine merit claims the claims of the dismissal of judgment dismissal to grant motion for summary judgment for summary defendants motion grant defendants O'Connor. against against O'Connor. the the complaint Defendants next next argue argue the causes of action action pied pled in the complaint and the the causes Defendants the originally included were not originally they were Particulars should included in the dismissed as they should be dismissed of Particulars Bill of Claim of Notice the that Notice of Claim. response, plaintiffs aver that the Notice of Claim aver plaintiffs response, In Claim. of Notice later filed the later of the requirements defendants of alerted defendants adequately alerted satisfied, adequately were satisfied, requirements were Notice of the Notice deficiency with the negligence claims, claims, and that any technical of Claim Claim did technical deficiency that any negligence not prejudice prejudice defendant. defendant. not the describes the the notice when the met when The notice describes statute are met the statute of the requirements of The requirements a conduct defendant the enable to incident with sufficient particularity enable the defendant to conduct as so incident with sufficient particularity proper investigation investigation and to assess assess the merits of of the claim. claim. Davis Davis v City City of of New New the merits proper the that the 153 AD3d Dept 2017]. legislature did not not intend intend that The legislature 2017]. The 658 [2d Dept AD3d 658 York, 153 action and legal of action causes of claimant have the burden of pleading causes legal of pleading additional burden the additional claimant have 250 NY 332 theories Notice of City of New York, 250 of New Schwartz v City Claim. Schwartz of Claim. the Notice theories in the the verba in the haec verba action in haec [1929]. A claimant claimant need need not state precise cause cause of action state a precise [1929]. 140 and Hospitals notice of claim." Se Dae New York City City Health Health and Hospitals Corp., Dae Yang v New of claim." notice claim of claim the notice finds the court finds AD3d Dept 2016]. Hence, the court notice of 2016). Hence, AD3d 1051 [2d Dept liability impose seek plaintiffs adequately apprises the defendants that plaintiffs will seek to impose liability that adequately apprises the defendants under multiple multiple theories of recovery. recovery. theories of under sustained as noticed Defendants argue noticed because because cannot be sustained claims cannot the claims that the argue that Defendants supervision. was no negligent there was proper safety place, and there negligent supervision. was in place, equipment was safety equipment proper support submitted in support papers submitted other papers Upon review transcripts, and other deposition transcripts, the deposition of the review of Upon record the in of defendants' defendants' motion, motion, the the court court finds conflicting evidence evidence the record there is conflicting finds there of was proper there was before it sufficient sufficient to raise raise issues issues of proper safety safety whether there fact as to whether of fact before negligent. was ride the of equipment, and whether the supervision of the was negligent. supervision the whether equipment, breach Def~ndants further County did not breach of law, the County matter of contend as a matter further contend Defendants possible of examples its duty duty of of care. care. However, However, the court finds there examples of possible are there finds the court were given to riders breaches of namely whether instructions given riders were safety instructions whether safety duty, namely of duty, breaches -4-4- [* 4] 4 of 6 FILED: WESTCHESTER COUNTY CLERK 12/22/2017 10:35 AM NYSCEF DOC. NO. 85 INDEX NO. 50037/2016 RECEIVED NYSCEF: 12/20/2017 feet of a rider's adequate and whether pegs placed placed on the placement of rider's feet the ride to aid placement whether pegs adequate the risk assumed the that Dennis argue that were improperly placed. placed. Lastly, Lastly, defendants Dennis assumed defendants argue were improperly care to him. duty of care owed no duty of riding riding the derby derby racer racer ride so that that defendants defendants owed when an the risk, when of the According primary assumption assumption of of primary doctrine of the doctrine According to the she or she activity, recreational sport individual voluntarily participates in a sport or recreational activity, he individual voluntarily participates arise out inherent in and arise that are inherent consents to those commonly appreciated appreciated risks that out those commonly consents therein. Morgan from participation of nature of participation therein. Morgan v flow from generally and flow sport generally the sport of the the nature of the High Magnus High Albertus Magnus State of of New New York, 90 NY2d NY2d 471, 471,484 [1997]; Siegel Siegel v Albertus 484 [1997]; State Educ., Dept. of City Dept. New York City School, 153 AD3d Dept 2017]; of Educ., Perez v New 2017]; Perez AD3d 572 [2d Dept School, AD2d Y., N. of City of Educ. of 115 AD 3d 921 [2d Dept 2014]; Board of of City of Y., 272 AD2d Board v Welch 2014]; Dept AD3d construction the construction with the 469 [2d Dept Dept 2000]; 2000]; "This associated with encompasses risks associated "This encompasses 469 Safon v playing field, open and obvious obvious conditions conditions on it." Safon any open field, and any the playing of the the 2015]. "If the AD3d 1008 Bellmore-Merrick High Sch. Dist., Disf., 134 AD3d 1008 [2d Dept Dept 2015]. Bellmore-Merric k Cent. High she has or she the participant, known by or perfectly perfectly obvious obvious to the participant, he or risks are known of duty its discharged consented to them the property owner discharged duty of care care by has owner property the and them consented City York New v Perez appear to be." Perez New making the City they appear safe as they conditions as safe the conditions making 439 [1986]. of Educ., supra at 921; Turcotte Turcotte v Fell, 68 NY2d NY2d 432, 439 [1986]. " 'It is not Educ., supra Dept. of which his exact manner the exact necessary ... that injured plaintiff plaintiff have have foreseen manner in which foreseen the the injured that the necessary of injury for injury of the potential of the aware of or her her injury injury occurred, potential for she is aware occurred, so long as he or she Rental, Inc., Bob's Canoe Ferrari v Bob's the mechanism mechanism from injury results. results. Ferrari Canoe Rental, the injury which the from which 66 York, New of City v Maddox 3d 937, 938 [2d Dept 2016], quoting quoting Maddox City of New Dept 2016], AD3d 143 AD NY2d 270, 278 [1985]. 278 [1985]. NY2d placed on the were pegs there were evidence in the record record that that there pegs placed the there is evidence Here, there they may the rider's of the horses on the placement of rider's feet, and they may have have been been the ride to aid placement horses should whether Dennis fact as to whether of fact improperly placed. placed. Hence, Hence, there issue of Dennis should there is an issue improperly likewise is foot pegs. This have foreseen the potential potential for injury by using This likewise an using the foot for injury foreseen the have of fact. trier of the trier for the issue of fact for of fact issue does not plaintiff does the plaintiff for the judgment for The court court similarly similarly finds that summary summary judgment finds that The signs warning signs the warning are issues issues of Dennis heeded heeded the whether Dennis fact as to whether of fact There.are lie. There in the negligently acted employees which were present, and whether defendants' employees acted negligently defendants' whether which were present, specific required to resolve duty and care care they they owed owed to him. Thus, resolve the the specific Thus, a trial is required duty defendants. issues raised raised by plaintiffs plaintiffs and defendants. issues parties not specifically The court court has considered considered the additional contentions contentions of of the the parties specifically the additional The by the addressed not was party either by addressed herein. To the extent any relief requested either party was addressed requested relief any extent the herein. addressed court, hereby denied. hereby Accordingly, it is hereby denied. Accordingly, court, it is hereby KATHLEEN ORDERED that motion of of WESTCHESTER COUNTY, and KATHLEEN WESTCHESTER COUNTY, the motion that the ORDERED DEPARTMENT COUNTY DEPARTMENT OF PARKS, O'CONNOR, PARKS, WESTCHESTER COUNTY COMMISSIONER OF WESTCHESTER O'CONNOR, COMMISSIONER order granting for an order RECREATION, AND CONSERVATION,N, made CPLR 3212, for granting pursuant to CPLR made pursuant AND CONSERVATIO RECREATION, and CORTES BARBARA against as complaint summary judgment dismissal of the complaint against BARBARA CORTES the of summary judgment dismissal -5-5- [* 5] 5 of 6 FILED: WESTCHESTER COUNTY CLERK 12/22/2017 10:35 AM NYSCEF DOC. NO. 85 INDEX NO. 50037/2016 RECEIVED NYSCEF: 12/20/2017 BARBARA AS TEMPORARY THE PROPERTY BARBARA CORTES CORTES AS TEMPORARY GUARDIAN GUARDIAN OF THE PROPERTY AND AND PERSON PERSON OF denied; and it is further further DENNIS DENNIS A. CORTES CORTES [Mot. Seq. 4], is denied; r ORDERED CORTES AS ORDERED that that the the cross-motion cross-motion of BARBARA BARBARA CORTES CORTES and BARBARA BARBARA CORTES TEMPORARY AND PERSON TEMPORARY GUARDIAN GUARDIAN OF THE THE PROPERTY PROPERTYAND PERSON OF DENNIS DENNIS A. CORTES, CORTES, made CPLR 3212, for for an order judgment of liability made pursuant pursuant to CPLR3212, order granting granting plaintiff plaintiff summary summary judgment liability as against against WESTCHESTER WESTCHESTER COUNTY, COUNTY, and KATHLEEN KATHLEEN O'CONNOR, O'CONNOR, COMMISSIONER COMMISSIONER OF WESTCHESTER AND WESTCHESTER COUNTY COUNTY DEPARTMENT DEPARTMENTOFOF PARKS, PARKS, RECREATION, RECREATION, AND CONSERVATION Seq. 5], is denied; CONSERVATION [Mot. Seq. denied; and itirisis further further / j ORDERED directed to appear appear in the Settlement ORDERED that that the parties parties are directed Settlement Conference Conference Part of Court, Room Room 1600, 1600, on January 30,2018 this Court, January 30, 2018 at 9:15 a.m. The foregoing foregoing constitutes constitutes the Decision/Order Decision/Order of the court. The Dated: Dated: White White Plains, Plains, New New York York December December 20, 2017 2017 ",' . LAWRENCE H. ECKER, J.S.C. Appearances Appearances Law Offices Associates, P.C. Offices of of Soto Soto & Associates, Attorneys for for Plaintiff Plaintiff Attorneys Via NYSCEF Via NYSCEF Westchester County County Attorney Attorney Westchester Attorneys for for Defendants Defendants Attorneys Via NYSCEF Via NYSCEF '\ .-'-6-'-6- ,.r [* 6] 6 of 6

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