Samuels v Smith Cairns Ford

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Samuels v Smith Cairns Ford 2019 NY Slip Op 34658(U) December 10, 2019 Supreme Court, Westchester County Docket Number: Index No. 59920/2017 Judge: Charles D. Wood 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 12/11/2019 09:41 AM NYSCEF DOC. NO. 116 INDEX NO. 59920/2017 RECEIVED NYSCEF: 12/10/2019 commence the the statutory statutory ttime period for appea appealsls To commence ime pe riod for of right (CPLR 55 SS IJ l3[a]), you are are advised advised to serve serve as of right (CPLR [a]), you copy of of this this order, order, with with nOlice entry. upon upon all parties. parties. a copy notice of of entry. SUPREME COURT COURT OF OF THE THE STATE STATE OF NEW YORK YORK SUPREME OF NEW COUNTY OF OF WESTCHESTER WESTCHESTER COUNTY --------------------------------------------------------------------------------)( --------------------------------------------------------------------------------X LUCY SAMUELS, SAMUELS, as Administratrix Administratrix of of the the Estate Estate of of LUCY HOPETON SAMUELS, SAMUELS, Deceased, Deceased, and and HOPETON LUCY SAM,JELS, SAM~.iELS, Individually, Individually, LUCY Plaintiff, Plaintiff, DECISION & ORDER ORDER DECISION Index No. 59920/2017 59920/2017 Index Sequence Nos. Sequence Nos. 2&3 -against-againstSMITH CAIRNS CAIRNS FORD, FORD, SMITH SMITH CAIRNS CAIRNS FORD FORD OF OF SMITH WHITE PLAINS, INC., SMITH CAIRNS FORD LINCOLN WIDTE PLAINS, INC., SMITH CAIRNS FORD LINCOLN MERCURY, INC., INC., SMITH SMITH CAIRNS CAIRNS LINCOLN, LINCOLN, INC., INC., and MERCURY, and FORD MOTOR MOTOR COMPANY, COMPANY, FORD Defendants. Defendants. --------------------------------------------------------------------------------)( --------------------------------------------------------------------------------X WOOD,J. WOOD,J. l New York State State Courts Courts Electronic Electronic Filing Filing ("NYSCEF") ("NYSCEF") Documents Documents Numbers Numbers 42-115, 42-115, New York were read in connection connection with with separate separate summary summary judgment motions of of defendants defendants Smith Smith Cairns Cairns judgment motions entities ("Smith ("Smith Cairns") Cairns") (Seq (Seq 2), and Ford Ford Motor Motor Company Company ("Ford") ("Ford") (Seq (Seq 3), based based upon upon the entities supporting affirmations affirmations of of their their counsel, counsel, as well as various various exhibits, exhibits, including including an affidavit affidavit of of an supporting engineer. engineer. Administratrix, deceased deceased party party brings brings suit against against manufacturer, manufacturer, and dealerships dealerships By his Administratrix, deceased's s van allegedly allegedly spontaneously spontaneously changed changed its gear gear from park park to acceleration. This is after deceased' acceleration. This wrongful death d~ath action action arising arising from a fatal motor motor vehicle vehicle accident accident that that occurred occurred in White White Plains Plains a wrongful 1,2015. Decedent purportedly purportedly placed placed a 2001 Ford Ford Econonline Econonline E-350 E-350 van van into "Park" "Park" on July 1, 2015. Decedent rolled forward forward and ran decedent decedent over walked in front front of of it, causing causing his death. death. but it rolled over as he walked NOW oased upon the foregoing, foregoing, the summary summary judgment motion is decided decided as follows: follows: NOW oased upon judgment motion 1 [* 1] 1 of 9 FILED: WESTCHESTER COUNTY CLERK 12/11/2019 09:41 AM NYSCEF DOC. NO. 116 INDEX NO. 59920/2017 RECEIVED NYSCEF: 12/10/2019 settled that that "a proponent proponent of of a summary motion must make a prima It is well settled summary judgment judgment motion must make prima showing of of entitlement matter of tendering sufficient entitlement to judgment judgment as a matter of law, tendering sufficient evidence evidence to facie showing demonstrate tlie the absence absence of of any material material issues issues of (Alvarez v Prospect Prospect Hosp Hosp.,.. 68 NY2d demonstrate of fact" (Alvarez NY2d 320,324 [1986]; see Orange Orange County-Poughkeepsie County-Poughkeepsie Ltd. Partnership Partnership v Bonte, Bonte, 37 AD3d AD3d 684, 684, 686320, 324 [1986]; 686- 687 [2d Dept 2007]). Once Once the movant Dept 2007] 2007];; see also Rea v Gallagher, Gallagher, 31 AD3d AD3d 731 [2d Dept Dept 2007]). movant threshold burden, burden, the opposing opposing party party must must present present the existence triable issues issues of has met this threshold existence of of triable of Zuckerman v New New York, York, 49 NY2d 557, 562 [1980] [1980];; see also Khan v Nelson, AD3d fact (see Zuckerman NY2d 557, also Khan Nelson, 68 AD3d Dept 2009]). 2009]). Conclusory, Conclusory, unsubstantiated unsubstantiated assertions assertions will not suffice suffice to defeat defeat a motion motion 1062 [2d Dept summary judgment (Barclays Bank Bank of of New Sokol, 128 AD2d for summary judgment (Barclays New York, N.A. N.A. v Sokol, AD2d 492 [2d Dept Dept opposing a motion motion for summary may do so on the basis 1987]). A party party opposing summary judgment judgment may basis of of deposition deposition testimony as well as other other admissible admissible forms of of evidence, evidence, including including an expert's affidavit, and testimony expert's affidavit, and eyewitness testimony testimony (Marconi (Marconi v Reilly. Reilly. 254 AD2d AD2d 463 [2d Dept Dept 1998]). 1998]). In deciding deciding a motion motion eyewitness summary judgment, court is required required to view evidence presented presented "in "in the light most most view the evidence the light for summary judgment, the court favorable to the party party opposing opposing the motion motion and to draw every reasonable reasonable inference inference from the favorable draw every pleadings and the proof proof submitted parties in favor of of the opponent opponent to the motion" motion" (Yelder (Yelder pleadings submitted by the parties Walters, 64 AD3d AD3d 762, 767 [2d Dept Dept 2009]; 2009]; see Nicklas Nicklas v Tedlen Realty Corp., Corp., 305 AD2d AD2d v Walters, Tedlen Realty 385,386 Dept 2003]). 2003]). The The court court must must accept accept as true the evidence evidence presented presented by the the 385, 386 [2d Dept nonmoving party party and must must deny deny the motion motion if if there there is "even "even arguably arguably any doubt doubt as to the nonmoving existence of of a triable triable issue" issue" (Kolivas Kirchoff, 14 AD3d AD3d 493 [2d Dept Dept 2005]); Baker v (Kolivas v Kirchoff, 2005]); Baker existence Briarcliff School School Dist., Dist., 205 AD2d AD2d 652,661-662 652,661-662 [2d Dept Dept 1994 1994]). The court's court's function function on this Briarcliff ]). The motion for summary issue finding finding rather rather than than issue issue determination determination (Sillman (Sillman v motion summary judgment judgment is issue Twentieth Century Century Fox Film Film Corp., Corp., 3 NY2d [1957]). Summary Summary judgment Twentieth NY2d 395 [1957]). judgment is a drastic drastic 2 [* 2] 2 of 9 FILED: WESTCHESTER COUNTY CLERK 12/11/2019 09:41 AM NYSCEF DOC. NO. 116 INDEX NO. 59920/2017 RECEIVED NYSCEF: 12/10/2019 remedy existence of of a triable remedy and should should not be granted granted where where there there is any doubt doubt as to existence triable issue (68 NY2d 3212(b), specifically provides that shall be denied NY2d 320,324). 320,324). Further, Further, CPLR CPLR 3212(b), specifically provides that "the motion motion shall denied if any party shall show show facts sufficient require a trial of any issue issue of of fact". fact". if sufficient to require The Greenburgh Greenburgh Police Police Department Department responded responded to the scene. scene. Detective Detective Jason Jason Perry, Perry, who trained as an accident accident reconstruction reconstruction investigator, investigator, led the scene investigation. The The is trained scene investigation. investigation showed showed that that the accident accident occurred occurred due to "pedestrian "pedestrian confusion/driverless confusion/driverless vehicle," vehicle," investigation "the operator operator of of the vehicle vehicle unsuccessfully unsuccessfully attempted attempted to re-enter re-enter the vehicle vehicle after after it began began to as "the "run over over in the process" (Greenbugh PD PO Records, Records, NYSCEF Doc No. 54). roll" and was "run process" (Greenbugh NYSCEF Doc No. 54). Detective Perry Perry testified testified that that based rough condition of the van van at the time time of of the accident, accident, Detective based on the rough condition of documented in the Mechanical Mechanical Inspection Inspection Report Report and the Greenburgh Greenburgh PD record, record, that that as documented decedent failed to maintain maintain the van in a safe and proper fashion. He opined opined that that the mechanical mechanical decedent proper fashion. deficiencies contributed contributed to the accident, accident, most most importantly importantly a loose loose shifter shifter linkage linkage that that led to the deficiencies transmission slipping out of of gear gear (Case (Case Supplement Supplement Report Report NYSCEF NYSCEF Doc Doc No. No. 54 at p. 8). transmission slipping out Approximately eight eight months months after after commencing commencing this action, action, on April April 9, 2018, plaintiff had Approximately 2018, plaintiff had inspected by mechanic mechanic Donald Donald Fregans Fregans of of Fregans Fregans Automotive, Automotive, in the presence of the van inspected presence of Mechanic Craig Craig Bertagni. Bertagni. Fregans Fregans found that obvious problem problem that that should Mechanic that the van had an obvious should have corrected during during normal normal maintenance, maintenance, and that that the emergency emergency brake brake had had not been been been corrected maintained properly properly and if if applied applied it would would not have worked worked at all (Donald (Donald Fregans Fregans Report, Report, maintained NYSCEF Doc No. 57). NYSCEF January 15, 15,2019, Hugh D. Mauldin, Mauldin, P.E. P.E.,, inspected inspected the van van on behalf behalf of ofFord, 2019, Hugh Ford, and On January . found that that it was in an extremely extremely poor poor condition condition and state state of of disrepair. disrepair. He observed observed that that the rear rear disk, rotors, rotors, and drum drum of of the van's van's parking brake showed showed excessive excessive corrosion. corrosion. Mauldin Mauldin opined opined disk, parking brake 3 [* 3] 3 of 9 FILED: WESTCHESTER COUNTY CLERK 12/11/2019 09:41 AM NYSCEF DOC. NO. 116 INDEX NO. 59920/2017 RECEIVED NYSCEF: 12/10/2019 van does not have have any defects defects that that contributed contributed to or caused caused the accident accident because that the van because its transmission works works properly, properly, and as designed. designed. Particularly, Particularly, Mauldin's Mauldin's testing testing showed showed that that the transmission engaged in Park Park and, and, once once it is in Park, the van' van'ss wheels wheels cannot cannot move. move. Based Based on van can be engaged Mauldin'ss testings, reasonable degree of engineering engineering certainty, certainty, it is mechanically mechanically Mauldin' testings, and to a reasonable degree of impossible for the van to move move after after its transmission transmission is engaged engaged in park. park. Mauldin Mauldin opined opined that that the impossible accident could could only only have have occurred occurred if if decedent decedent failed to engage engage the van' van'ss transmission transmission in Park. Park. accident Further, Mauldin Mauldin opined opined that that even if it were were true that that the van had a very very loose loose shifter Further, even if shifter like the Town of of Greenburgh Greenburgh mechanic mechanic described described in his report, report, this is evidence evidence of of poor poor maintenance, maintenance, as Town opposed to a design design or manufacturing manufacturing defect. defect. Mauldin Mauldin explains explains that that even even if if the van' van'ss shifter shifter opposed linkage could could be described described as very loose, loose, this is not evidence evidence of of a defect, defect, because because his testing testing linkage conclusively shows shows that the van's van's shifter linkage, regardless of its condition, condition, does does not prevent conclusively shifter linkage, regardless of prevent the operator from engaging engaging the transmission transmission into Park, Park, the van' van'ss transmission transmission cannot cannot pop pop out of of the operator Park gear after after it is engaged engaged in Park. Park records from Smith Smith Cairns Cairns show show that decedent decedent took took the van van to that that dealership dealership for The records service only on one occasion occasion after after he purchased purchased the van in 2001. 2001. There There is no evidence evidence in the service record indicating indicating that that decedent decedent took took the van to Smith Smith Cairns Cairns for service service or maintenance maintenance after after record June 2002, 2002, or to any other other vehicle vehicle dealership dealership or repair repair shop. June Each defendant defendant argues argues that that plaintiffs establish that that a manufacturing manufacturing defect defect Each plaintiffs have failed to establish caused this accident, accident, and that that the sole sole proximate proximate cause cause of of the accident accident was decedent's decedent's own own caused maintain his vehicle. vehicle. Plaintiff Plaintiff alleges alleges two products products theories theories of of liability. liability. Strict Strict failure to maintain products liability liability for a design design and manufacturing manufacturing defect defect and breach breach of of warranty. warranty. products f(~~ordreflects that decedent decedent purchased purchased the van van new new from from co-defendant co-defendant Smith Smith Cairns Cairns reflects that The r~~ord 4 [* 4] 4 of 9 FILED: WESTCHESTER COUNTY CLERK 12/11/2019 09:41 AM NYSCEF DOC. NO. 116 INDEX NO. 59920/2017 RECEIVED NYSCEF: 12/10/2019 on or about about September September 8, 2001. 2001. At the time time of of the accident, accident, the van van had over over 113,000 113,000 miles. miles. According According to Ford, the transmission transmission of of the van was designed designed and manufactured manufactured to remain remain .. stationary stationary in the Park Park gear gear when when its transmission transmission is engaged engaged in Park Park (Matthew (Matthew Fyie Dep, Dep, NYSCEF NYSCEF Doc No. 52 at p 52). If If the van is in Park, its stays parked. parked. The The van van is also equipped equipped shift interlock interlock feature feature so the transmission transmission shift shift selector selector lever lever cannot cannot be moved moved from with a brake brake shift latch position with the vehicle vehicle running running unless unless the brake depressed. the Park latch position with brake pedal pedal is depressed. Owner's Guide, Guide, which which was given given to decedent decedent advises advises customers customers that that their their vehicle vehicle The Owner's brings scheduled maintenance maintenance guide guide to make make tracking tracking routine routine service, service, and contains contains clear clear brings a scheduled instructions on how how to shift shift the van van to different different gears gears and properly properly place place the van in Park. Park. instructions Additionally, proper Additionally, the van van came came with with a Warranty Warranty Guide, Guide, which which advises advises customers customers that that proper maintenance maintenance guards guards against against major major repair repair expenses expenses resulting resulting from neglect neglect or inadequate inadequate maintenance. maintenance. Together with with the reports reports and testimony, testimony, defendants defendants claim claim that that decedent decedent was the only Together person drove the van, van, never never claimed claimed that it had any defects defects or complained complained that that its person who drove transmission did not work work properly. According to Ford, the van was designed designed and manufactured manufactured transmission properly. According accordance with with the written written safety safety standards standards of of the National National Highway Highway Traffic Traffic Safety Safety in accordance Administration (NHTSA), (NHTSA), and was not subject subject to any recalls recalls associated associated with with plaintiffs' plaintiffs' defect defect Administration allegations in this this case. allegations Thus, defendants defendants argue argue that that each each is entitled entitled to summary summary judgment because: plaintiffs' Thus, judgment because: plaintiffs' products liability claims claims against against defendants defendants based design and manufacturing manufacturing defects defects and products liability based on design failure to warn devoid of of merit, merit, and are unsupported unsupported by any evidence; evidence; and plaintiffs's plaintiffs's breach warn are devoid breach of warranty warranty claims claims are time time barred. barred. of 5 [* 5] 5 of 9 FILED: WESTCHESTER COUNTY CLERK 12/11/2019 09:41 AM NYSCEF DOC. NO. 116 INDEX NO. 59920/2017 RECEIVED NYSCEF: 12/10/2019 procedural manner, manner, plaintiffs' plaintiffs' breach of warranty warranty claim claim fails because As a procedural breach of because the four year statute of of limitations limitations has long long expired expired as decedent decedent purchased purchased the van van in 2001 2001.. Uniform Uniform statute Commercial Code§ Code ~ 22-725, 725, provides provides that that a cause cause of of action action for breach breach of of a contract contract of of sale must must Commercial be commenced commenced within within four years after after it accrues. accrues. The action action accrues accrues when when the breach occurs and, and, breach occurs absence of of a warranty warranty explicitly explicitly extending extending to future future performance, performance, a breach breach occurs occurs when when in the absence tender of of delivery delivery is made, made, not on the date that some third party party sells sells it to plaintiff plaintiff (Heller (Heller v U.S. some third tender Suzuki Motor Motor Corp Corp.,.. 64 N.Y.2d N.Y.2d 407, 407, 410, 410, 411 [1985]). [1985]). Suzuki Turning to the merits merits of of their their motions, motions, defendants defendants argue argue that that plaintiffs' plaintiffs' claims claims against against Turning defendants must must be dismissed dismissed because because the evidence evidence firm firmly establishes that that the van van was was devoid devoid of of defendants ly establishes any defects defects that that would would have have contributed contributed to or proximately proximately caused caused the accident, accident, and that something other other than than a defect defect in the van caused caused the accident. accident. In addition, addition, plaintiffs' plaintiffs' claims claims something against defendants based failure to warn warn must must be dismissed dismissed because record establishes establishes because the record against defendants based on failure came with Owner's s Guide Guide and Warranty Warranty Guide, Guide, which which contained contained clear clear that the van came with an Owner' instructions and warnings warnings on how how to shift shift its transmission, transmission, use the parking parking brake, brake, service service and instructions maintain the van. maintain establish a prima prima facie case case in a strict strict products liability action action predicated predicated on a design design To establish products liability defect, a plaintiff must show show that that "the "the manufacturer manufacturer marketed marketed a product product which which was was not defect, plaintiff must reasonably safe in its design, design, that that it was feasible feasible to design design the product safer manner, manner, and that that reasonably product in a safer defective design design was a substantial substantial factor factor in causing causing the plaintiffs plaintiffs injury" injury" (Pierre-Louis (Pierre-Louis v. the defective DeLonghi Am., Am., Inc., 66 A.D.3d A.D.3d 859, 859, 861, [2d Dept Dept 2009]). 2009]). A manufacturer manufacturer may may be held held liable liable DeLonghi stream of of commerce commerce a defective defective product product which which causes causes injury injury (Gebo (Gebo v Black Black for placing placing into the stream Clawson Co., Co., 92 N.Y.2d 387, 392 [1998]). [1998]). This This burden burden is also imposed imposed on a "wholesaler, "wholesaler, Clawson N.Y.2d 387, 6 [* 6] 6 of 9 FILED: WESTCHESTER COUNTY CLERK 12/11/2019 09:41 AM NYSCEF DOC. NO. 116 INDEX NO. 59920/2017 RECEIVED NYSCEF: 12/10/2019 distributor, or retailer retailer who who sells sells a product defective condition"(Pierre-Louis condition"(Pierre-Louis v DeLonghi DeLonghi distributor, product in a defective A.D.3d 859, 860, [2d Dept Dept 2009]). 2009]). "[w]hether "[w]hether an action action is pleaded strict Am., Inc., 66 A.D.3d pleaded in strict products liability, breach breach of of warranty, warranty, or negligence, negligence, the plaintiff must prove that the alleged plaintiff must prove that the alleged products liability, defect is a substantial substantial cause cause of ofthe events which which produced produced the injury" injury" (Fahey (Fahey v A.O. A.O. Smith Smith the events defect Qmb 77 AD3d AD3d 612, 615[2d 615[2d Dept Dept 2010]). 2010]). ~ out that that plaintiffs plaintiffs cannot cannot successfully successfully rebut rebut Ford's Ford's evidence evidence through through the Ford points points out conclusory affidavit affidavit of of Geragni Geragni or Fregan's Fregan's Report, Report, as they are not automotive automotive or mechanical mechanical conclusory engineers and both both lack lack any expertise expertise in the design, design, development development or manufacturing manufacturing of of the engineers component which which plaintiffs allege were were defective plaintiffs fail to refer refer to any component plaintiffs allege defective in the van. Also Also plaintiffs measurement, tests tests or other other expert expert analysis analysis or studies studies that would would support allegations support plaintiffs's plaintiffs' s allegations measurement, of a design design or manufacturing manufacturing defect defect in the van. After After reading reading these these reports, reports, the court court gives gives little little of weight to these these plaintiff affidavits as they are mere mere conjecture, conjecture, insufficient insufficient to defeat weight plaintiff submitted submitted affidavits defeat a summary judgment motion. summary judgment motion. Ford also argues argues that that the overwhelming overwhelming admissible admissible evidence evidence submitted submitted indicates indicates that that the Ford accident was caused caused something something other other than than a defect defect in the van van and something something that that cannot cannot be accident attributed to Ford. attributed their respective respective motions, motions, defendants defendants submitted submitted evidence constituting a prima On their evidence constituting prima facie showing that, as a matter matter of of law, the van in question defective at the time time it left either either question was not defective showing Ford's or Smith Smith Cairns Cairns entities' entities' hands hands ~arciso Ford Motor Motor Co., 137 AD2d AD2d 508, 509 [2d Dept Dept Ford's iliarciso v Ford There is also no competent competent evidence evidence that defendants defendants carelessly carelessly and negligently negligently failed failed to 1988]). There repair and/or and/or replace replace parts parts which which would would have prevented prevented the van van from from rolling rolling forward forward after after being being repair placed in Park, creating creating a dangerous dangerous defective defective condition condition and failed failed to advise and/or warn warn placed advise and/or 7 [* 7] 7 of 9 FILED: WESTCHESTER COUNTY CLERK 12/11/2019 09:41 AM NYSCEF DOC. NO. 116 INDEX NO. 59920/2017 RECEIVED NYSCEF: 12/10/2019 decedent decedent of of that that condition. condition. opposition to these these motions, motions, plaintiffs assert (among (among other other things) things) that that according according to In opposition plaintiffs assert New performed and the van passed both both New York York State State Inspection Inspection records, records, inspections inspections were were performed van passed emission and safety safety standards; that there there is a serious serious dispute dispute between records of Smith emission standards; and that between the records of Smith Cairns Ford Service Service Department Department and Hopeton Hopeton Samuels' Samuels' son, son, Andre Andre Samuels, Samuels, who who said said that that he Cairns went with with his father father on at least least four occasions occasions to Smith Smith Cairns Cairns Ford Ford for Service. Service. Plaintiffs Plaintiffs have went submitted sufficient sufficient evidence evidence of of any alleged alleged design design defect defect in the van to oppose oppose defendants' defendants' not submitted motion for summary summary judgment merits, nor did plaintiffs present admissible admissible evidence evidence judgment on the merits, plaintiffs present motion sufficient to raise raise a question question of of fact as to their their conclusory conclusory and speculative allegations that that Ford Ford sufficient speculative allegations negligently manufactured manufactured the allegedly allegedly defective negligently defective van. Additionally, plaintiffs' plaintiffs' claims against Ford based based on failure failure to warn warn must must also be Additionally, claims against dismissed because because the record record shows shows that the van contained contained explicit explicit warnings warnings and instructions instructions dismissed with decedent decedent failed failed to follow, follow, despite despite being them. of them. with being aware aware of arguments by the parties parties not explicitly explicitly addressed herein have have been been reviewed reviewed and The arguments addressed herein deemed to be devoid devoid of of merit. merit. This This constitutes constitutes the Decision Decision and Order Order of of the Court. Court. deemed stated reasons, reasons, it is hereby: hereby: For the stated ORDERED, that that defendants defendants Smith Smith Cairns Cairns entities' entities' motion motion for summary summary judgment (Seq 2) ORDERED, judgment (Seq granted, and the complaint complaint is dismissed dismissed as against against them; is granted, them; ORDERED, that that defendant defendant Ford Motor Motor Company' Company's s motion motion for summary summary judgment (Seq ORDERED, judgment (Seq 3) is granted, granted, and the complaint complaint is dismissed dismissed as against against them. them. 8 [* 8] 8 of 9 FILED: WESTCHESTER COUNTY CLERK 12/11/2019 09:41 AM NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 12/10/2019 Clerk shall shall mark mark his records records accordingly. accordingly. The Clerk Dated: Dated: To: December 10, 2019 2019 December White Plains, New York White Plains, New York Parties by NYSCEF All Parties NYSCEF 9 [* 9] INDEX NO. 59920/2017 9 of 9

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