New York Mar. & Gen. Ins. Co. v Perotto Assoc.Eng'g, P.C.
2017 NY Slip Op 31790(U)August 25, 2017
Supreme Court, Kings CountyDocket Number: 295/2015-E
Judge: Debra SilberCases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various state andlocal government websites. These include the New YorkState Unified Court System's E-Courts Service, and the
Bronx County Clerk's office.This opinion is uncorrected and not selected for official
publication.
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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: PART 9
NEW YORK MARINE AND GENERAL INSURANCE COMPANY AND TECHNOLOGY INSURANCE COMPANY a/s/o CRP CORTEL YOU, LLC and LIBERTY PLACE PROPERTY MANAGEMENT LLC,
Plaintiffs,
-against-
PEROTTO ASSOCIATES ENGINEERING, P.C.,
Defendant.
DECISION I ORDER
Index No. 295/2015-E Motion Seq. No. 1 Date Sub.: 06/01/17
Recitation, as required by CPLR 2219(a), of the papers considered in the review of the defendant's motion for summary judgment.
Papers Numbered
Notice of Motion, Affirmation and Exhibits annexed ...... .. ............ ... .. . 1 - 7
Affirmation in Opposition and Exhibits annexed ...... ... .............. ..... ... . 8 -14
Reply .... .... .. .... ..... .... .. ..................... .. ... ............. ...... .... .. ... ............... .. . 15 - 16
Upon the foregoing cited papers, the Decision/Order on this application is as
follows :
Defendant Perotta Associates Engineering, P.C. moves for an order, pursuant to
CPLR 3212, granting it summary judgment and dismissing the complaint. Plaintiffs , New
York Marine and General Insurance Company and Technology Insurance Company,
a/s/o/ CRP Cortelyou, LLC and Liberty Place Property Management LLC, oppose the
motion. For the reasons which fol low, the motion is granted and the complaint is
dismissed.
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Background
This is an action in which plaintiffs, as subrogees of their insureds, seek
reimbursement for the sums they paid to their insureds as a resu lt of a fire that took place
on March 10, 20131, in the basement of their subrogors' premises at 2156 Cortelyou
Road ("Premises"), Brooklyn , New York. The property is a four-story multiple dwelling with
thirteen apartments.
In or around March, 1991 , twenty-two years before the fire , defendant engineering
firm was retained by Crockett Fuel Oil Co. ("Crockett") on behalf of the prior owner of the
premises to file for a permit with the New York City Department of Buildings ("DOB") to
install a new boiler. Defendant submitted , as part of the permit application, a drawing of
the proposed boiler installation ("Drawing"; Exhibit D2). The drawing indicates where the
new equipment was to be located in the boiler room. It also includes the specific model
numbers of the equipment to be installed. It is an overhead view. It is drawn on a form
clearly provided by the DOB, with extensive verbiage on the left side clearly not written by
the defendant. The verbiage includes a provision that there is to be "a minimum of 18
inches clearance .. . provided around [the] boiler with 3'-0" in front. " There is no place on
the Drawing that indicates the height of the boiler room or the height of the boiler model
number specified. If other drawings were filed , they were not included in the motion
papers. On May 7, 1991 , the DOB issued a work permit for the installation of the boi ler. In
issuing the permit, the DOB stamped the Drawing as "Accepted under Directive 14 of
1975."
On March 10, 2013 at around 5:00 P.M., approximately six months after the
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current owner bought the building from the prior owner, who had owned it since 1990, a
fire broke out in the basement of the Premises , which caused significant damage. On
October 21, 2014, plaintiffs filed a similar action (Index No. 509697/2014) against
Crockett Fuel Oil Co. and six other defendants, including the defendant herein, seeking
the same damages as are sought in this action. In that action, plaintiffs alleged that
defendants Crockett and Perotta "installed and/or caused to be installed said boiler" and
"inspected and serviced said boiler" until sometime in July of 1996, when another of the
defendants commenced inspecting and servicing the boiler. Paragraphs 37 through 39 of
the 2014 complaint allege that:
37. Although Defendants, Crockett and Perotta Associates, did not have a direct contractual relationship with the insureds, their duty to the insureds arose as a matter of law because, during the course of their Boiler installation, inspection , and service work at the Building, they created an unreasonable risk of harm, increased the risk of fire , and launched a force or instrument of harm that extended from the date of their contracts with the prior Bui lding owners to the insureds.
38. Defendants, Crockett and Perotta Associates, breached their respective duties of care by acting in a negligent, grossly negligent, and/or reckless manner when they carelessly and improperly: (a) installed the Boiler chimney connector in such a way that its clearances were too near to combustible material , wh ich created a dangerous condition : (b) failed to warn that the Boiler chimney connector clearances were too close to combustible material ; (c) failed to properly inspect the Boiler; (d) fa iled to properly service the Boiler; (e) failed to hire sufficient and/or adequately trained personnel to ensure the proper installation, inspection, and servicing of the Boiler and to failed to ensure the safety of the Building; (f) failed to comply with applicable statutes, rules, regulations, and ordinances; (g) created and/or allowed a dangerous condition to exist and persist in the Boiler and the Building; (h) failed to take precautions or measures to prevent the fire Occurrence and to ensure the safety of the insureds' property; and (i) acted in so
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negligent, grossly negligent, and/or reckless a manner and through other culpable conduct as to evince a complete disregard for the safety of the insureds' property.
39. The negligence of defendants, Crockett and Perotto Associates, was the sole and proximate cause of the Plaintiffs' damages.
The court notes that the complaint does not allege that defendant Perotto prepared
its drawings negligently for the permit application or that the Drawing failed to provide for
a specific amount of clearance between the flue piping (the boiler - to - chimney
connector) and the ceiling or that it failed to notify the property owner, Crockett or the
Department of Buildings that the boiler - to - chimney connector was installed too close to
combustible material. On December 4, 2014, plaintiffs discontinued the action against
defendant Perotto without prejudice, because (as is stated in the complaint in this action)
plaintiff failed to comply with CPLR 214-d by serving defendant Perotto with a notice of
claim. Plaintiffs then amended their complaint a few weeks later to remove all references
in the caption to defendant Perotto, but left Perotto in the enumerated allegations and in
the wherefore clause, thereby blaming a party not sued therein, albeit jointly with Crockett
in all applicable references. That action (Index No. 509697/2014) is presently on the
court's trial calendar on October 26, 2017. No motion to consolidate the two actions has
been made.
In the instant action , plaintiffs served a notice of claim dated December 12, 2014
which again alleges what the complaint in the prior action alleged, as quoted above,
numbered as paragraphs 13-15 in the notice of claim. The plaintiffs then filed and served
the complaint in this action , which is dated March 8, 2016. The complaint annexes and
incorporates the prior complaint and refers to it as the "main action ." However, the
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complaint in this action adds many other allegations regard ing defendant Perotto which
are not included in the notice of claim , all of which are alleged to have occurred in 1991.
These include:
15. Prior to May 17, 1991 , Crockett entered into a contract with the prior owner of the Building pursuant to which Crockett was to install the Boiler in the Building based upon the designs/p lans of Perotto Associates in a safe and reasonable manner, inspect and service the Boiler in a safe a reasonable manner, and inform the owner of any dangers associated with the installation, status of, and use of the Boiler.
16. On or about March 18, 1991 , Perotto Associates prepared a design drawing ("Drawing") for the replacement of the existing oilfired boiler in the existing boiler room with a new specified oil-fired boiler, which included the make and model of both the new Boiler and the new burner equipment.
17. On or about May 17, 1991 , Perotto Associates and Crockett, through their employees and/or agents, designed, installed and/or caused to be installed said Boiler in the Building.
18. This Drawing included a "PART PLAN OF EXIST. CELLAR" that pictorially illustrated the existing boiler and showed the location of the boiler unit and the existing legal chimney.
19. The Drawing also depicted the chimney connector layout intended to serve the boiler installation by routing/conveying oil burner effluent from the 10 inch diameter boiler outlet to the chimney breach. This drawing specified the minimum clearance to combustibles around the new boiler at 18 inches.
20. The Drawing does not contain minimum clearances for the chimney connector, which was designed to be installed between the new boiler and the chimney. The applicable codes and reference standards required an 18 inch minimum clearance to combustibles above the design intended chimney connector.
21. The existing boiler room ceiling height was 84 inches and included a 3 inch floor mounting pad for the boiler.
22. The new boiler specified in the Drawing to be installed in the Building was 59 inches high and had a manufacturer's requirement for a 13 inch riser/manual damper assembly to be installed atop the top mounted, boiler effluent outlet connector.
23. The top elevation of this specified riser/manual damper assembly was 75 inches above floor level, which resulted in the top aspect of this installed chimney connector element only having a clearance of 9 inches to the boiler room ceiling .
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24. This 9 inch clearance between the chimney connector element and the boiler room ceiling was significantly less than the required 18 inches of clearance mandated by the code, including any permitted reductions.2
25. The Drawing further failed to provide any particular information or written notation to inform the installer that the specified equipment could not be installed in a standard manner due to the limited headroom above the boiler.
26. A proper design/drawing would have anticipated that when a 90 degree elbow was attempted to be connected to the installed 13 inch riser/manual damper assembly, a physical interference with the ceiling would occur.
27. Due to the failure of the Drawing to advise Crockett on how to install the specified equipment, Crockett resorted to cutting a 2 foot square ceiling opening , approximately 4 inches in depth, directly above the chimney connector assembly elements (the 13 inch riser/manual damper assembly and 45/90 degree swivel elbow) that extended upward from the boiler top outlet aspect. This resulted in inadequate clearance to the combustible ceiling joists.
Defendant's Arguments In Support Of Its Motion
In support of its motion for summary judgment dismissing plaintiffs' complaint,
defendant first argues that there exists no triable issue of material fact. Defendant argues
that a motion for summary judgment brought pursuant to CPLR 3212 must be analyzed
under the substantial basis standard, which requires plaintiffs to demonstrate that a
substantial basis in fact and law exists to believe that defendant's conduct was the
proximate cause of plaintiffs ' injuries. Defendant asserts that there is no genuine or
material issue of fact regarding defendant's lack of involvement in and responsibility for
the design, installation, inspection, and servicing of the boiler. Defendant submits an
2 The applicable Building Code (1968) provides that the required 18 inches is reduced to 12 inches if the ceiling is lined with sheet metal above the boiler. Here, it was lined with sheet metal, but the installers cut a two-foot square opening in the sheet metal, as the chimney connector vent pipe needed space to turn, so that it could reach the chimney several feet away.
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affidavit of its President, Robert Perotto, who avers that defendant was retained by
Crockett, who was hired by the prior owner of the Premises, solely to obtain a work
permit, and that the Drawing was only to be used for the express purpose of obtaining a
work permit to install a new boiler and burner. Mr. Perotto states that his firm did not
install the boiler, supervise its installation or certify to the DOB that it was properly
installed. Mr. Perotto also states that his firm never inspected the installation, nor did they
prepare any annual inspection report for the premises.
Second, defendant argues that it does not owe a duty of care to plaintiffs or their
subrogors, because defendant was solely retained to obtain a work permit and was not
responsible for the design, installation, inspection, or servicing of the boiler. Defendant
asserts that because it did not owe any duty of care to the prior property owner or his
assignees, it is not liable as a matter of law.
Third , defendant argues that plaintiffs have failed to prove that defendant's conduct
was the proximate cause of the fire . Defendant contends that the boiler was installed and
inspected by Crockett and then was inspected and serviced by four other companies (the
defendants in the "main" action) in the many years between the time Crockett's contract
ended (1996) and the fire , and that Crockett's work and annual inspections, along with
approximately seventeen other annual boiler inspections which were filed with the DOB,
as is required for multiple dwellings, constitute superseding acts that break the chain of
causation linking defendant's alleged negligent conduct and the fire . Defendant reasons
that the Drawing could not reasonably be relied upon to install the boiler because the
Drawing does not specify the height of either the boiler or the boiler room ceiling .
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Defendant also asserts that the text on the Drawing (either required by or placed thereon
by the DOB) stating that there is to be "a minimum of 18" clearance ... provided around
[the] boiler with 3'-0" in front" should be reasonably construed as including the flue piping
needed to attach the boiler to the chimney. Defendant thus argues that Crockett clearly
selected model numbers for the equipment which it should have known were too large for
the available space.
Plaintiffs' Opposition
In opposition to the motion seeking summary judgment dismissing the complaint,
plaintiffs first argue that defendant owed plaintiffs' subrogor a duty of care because its
design was approved under Directive 14 of 1975, pursuant to which, plaintiff claims, the
"filing representative" assumes responsibility for the project. Directive 14 provides that,
"[w]here any work is found not in compliance with plans or not in compliance with
applicable laws, it shall be corrected and if not corrected, the department shall be notified
by the architect or engineer and a violation requiring elimination of the defective work
shall be filed." New York City Department of Buildings Directive 14 of 1975.
Second, plaintiffs argue that defendant failed to establish its prima facie case for
dismissal by failing to proffer an affidavit of a licensed design professional stating that
defendant's Drawing conformed to applicable professional standards.
Third , plaintiffs argue that genuine issues of material fact exist that require denial
of defendant's motion for summary judgment. Plaintiffs suggest that there is a question of
fact as to whether defendant was negligent by failing to provide in the (overhead) Drawing
that the 18 inch clearance requirement specifically included the flue piping , rather than
just the boi ler. Additionally, plaintiffs argue that proximate cause is an issue that must be
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determined by a jury.
Plaintiffs submit an affidavit of Kenneth M. Garside, P.E., CFEI , of Affiliated
Engineering Laboratories, Inc., who performed a forensic engineering investigation of the
Premises. Mr. Garside determined that the fire occurred due to long-term heat exposure
to wooden joists, which was caused by insufficient clearance between the flue piping and
the combustible ceiling and floor joists. Mr. Garside further suggests that the Drawing
created by defendant failed to provide any instructions as to the necessary clearance for
the flue piping , which led to the improper installation of the boiler and permitted the
nearby combustible (wood) material to be exposed to long-term, low-heat exposure, and
resulted in the fire on March 10, 2013.
However, Mr. Garside states, in his lengthy report dated January 17, 2014, which
is included in the court file in the related action, (509697/14) the following:
Discussion
The inadequate boiler chimney connector clearances were and should have been open and obvious to servicing/inspection company technicians as the boiler flue connection and connected vent piping were located in plain view at the top and near the front of the equipment and would have been readily observed whenever entering the boiler room. The 2-foot square ceiling cutout would have been an unmistakable sign that an inadequate clearance condition existed . It is well settled that when wood is subjected to a long-term, low-heat exposure, a reduced ignition temperature will result to cause a fire . As such , the subject conflagration was the direct result of improper installation, inspection and servicing by those entities engaged by the property owner to properly maintain the subject steam boiler equipment. (E-file document #245)
Defendant's motion requests that the court grant it summary judgment and dismiss
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plaintiffs' complaint in its entirety.
Pursuant to CPLR 3212 (b) "the proponent of a summary judgment motion must
make a prima facie showing of entitlement to judgment as a matter of law, tendering
sufficient evidence to demonstrate the absence of any material issues of fact. " Alvarez v
Prospect Hosp., 68 NY2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d 923 (1986). Upon
such a showing , summary judgment will be granted unless the opposing party "show[s]
facts sufficient to require a trial of any issue of fact." Zuckerman v City of New York, 49
NY2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595 (1980) (internal quotation marks and
citation omitted).
The action insofar as asserted against the defendant arises under CPLR 214-d,
which applies to certain actions against licensed engineers and architects. A motion to
dismiss an action arising under CPLR 214-d is subjected to "heightened scrutiny" and
"shall be granted unless the party responding to the motion demonstrates that a
substantial basis in law exists to believe that the performance, conduct or omission
complained of such licensed architect [or engineer] . .. was negligent and .. . a proximate
cause of personal injury . . . complained of by the claimant" (CPLR 3211 [h]) . "[A] court
reviewing the sufficiency of a complaint under CPLR 3211 (h) must . .. determine
whether the claim alleged is supported by such relevant proof as a reasonable mind may
accept as adequate to support a conclusion or ultimate fact" (Castle Vil. Owners Corp. v
Greater N. Y. Mut. Ins. Co., 58 AD3d 178, 183, 868 NYS2d 189 [1 st Dept 2008] [internal
quotation marks omitted]). See Schmitt v Spector, 129 AD3d 1052, 1052-1053 [2nd Dept
2015); Kenny v Turner Constr. Co., 107 AD3d 412 [1st Dept 2013).
The Court of Appeals has explained "[a]n interruption of the nexus between
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defendant's negligence and plaintiffs injury by the act of a third party may affect
defendant's liability. An intervening act will be deemed a superseding cause and will
serve to relieve defendant of liability when the act . . . so attenuates defendant's
negligence from the ultimate injury that responsibility for the injury may not be reasonably
attributed to the defendant" (Kush by Marszalek v City of Buffalo, 59 NY2d 26, 33 [1983]).
"If the intervening act is .. . independent of or far removed from the defendant's conduct,
it may well be a superseding act which breaks the causal nexus" (Derdiarian v Felix
Contr. Corp., 51 NY2d 308, 315 [1980]).
Plaintiffs ' claims herein cannot withstand defendant's summary judgment motion
because plaintiffs fail to demonstrate that a substantial basis in fact and law exists to
show that defendant's alleged negligence, carelessness, or recklessness was the
proximate cause of the March 10, 2013 fire. According to the DO B's records, which are
publicly available on the internet and which the court takes judicial notice of, the boiler
was inspected approximately twenty times for the preparation and filing of the required
annual boiler inspection reports between the time of its installation in 1991 and the date of
the fire. In addition , the current owner had a professional inspect the premises before he
purchased it. This report is EFile document 255 in the "main" action . The report is dated
September 26, 2012 and states, at page 16, that the boiler was observed to be in average
to fair condition , was twenty years old and would need to be replaced in approximately
ten years.
The court also notes that the notice of claim served herein cannot be claimed to
have given the defendant notice of the claim. The complaint, filed more than a year later
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and after considerable discovery had been conducted in the "main" action , alleges totally
different facts and actions on defendant's part as the basis of the suit against defendant
than are alleged in the notice of claim. These new allegations clearly acknowledge that
defendant did not install, inspect or service the boiler, while the notice of claim solely
alleges that defendant, along with Crockett, installed, inspected and serviced the boiler.
Defendant has submitted an affidavit of its President, Robert Perotta, who avers
that defendant was never even informed that the boiler was in fact installed and that his
company was not asked to and did not sign off on or conduct any inspections of the
boiler. In plaintiffs' earlier "main" action (Index No. 509697/2014), plaintiffs assert
negligence claims against five other companies for their alleged negligent inspection and
maintenance of this same boiler from 1991 through 2013. In that action's complaint,
plaintiffs state that defendant CAM Energy Heating and Air Conditioning , Inc. inspected
and serviced the boiler just hours before the fire occurred . These inspections of the boiler
and the servicing of it for twenty-plus years after it was installed, including the day before
and the day of the fire , constitute superseding acts that break the causal nexus between
defendant's alleged negligence and the fire . Further, in this matter, defendant claims they
merely obtained a permit to install a boiler in 1991 from the DOB and did nothing further
afterwards. There is nothing in the record that indicates that this is not an accurate
description of the limited work defendant Perotta performed. There is no evidence to
indicate whether an engineer certified the installation, or if the DOB sent an inspector to
the Premises to certify the work.
Exhibit D1 to the defendant's motion is a copy of the application for the work permit
filed with the DOB. It lists Crockett as "installer" and is signed by an employee of
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Crockett. Perotta is listed as the "applicant" and "filing representative." Mr. Perotta
signed the application where required . The form states clearly that the boiler is not to be
put into operation after installation until a certification is issued by a boiler inspector.
There is no certification in the Exhibit. Exhibit D2 is the Drawing, which , as stated above,
is an overhead floor plan. Exhibit D3 is a copy of the permit. Plaintiffs opposition includes
copies of the insurance policies and proof of loss information, none of which is relevant to
the issues herein. Mr. Garside's affidavit is the only relevant document in admissible
form. As noted above, he attributes negligence to defendant in his affidavit, but in his
report filed in the "main" action , he also attributes fault to all of the defendants therein ,
including each and every company that inspected and serviced the boiler over the twenty
two years since it was installed.
In Document 116 in the related "main" action , a private cause and origin report
from Guardian Investigation Group, Inc., the superintendent Mr. Roman reported to the
investigator on March 15, 2013 that on the day before the fire and on the day of the fire
he found the boiler was not working when he arrived at work in the morning. He called
the management office and on both days, a service repairman arrived to service the boiler
and the repairman was able to re-start the boiler. He stated that it was very cold on the
day of the fire and the repairman told him he needed to order parts and would be
returning on a future date to install them. The report opines that "we believe that it [the
furnace] ran for an extended period of time after being repaired in order to satisfy the
thermostat and achieve a comfortable temperature within the building, thus producing an
excessive amount of heat buildup within the flue pipe ... we could not eliminate the
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possibility that the subject furnace did not malfunction in some way causing it to run
continuously on the day of the fire and thus produce an even greater amount of heat than
normal. "
"Proximate cause analysis incorporates a 'test of temporal duration,' which asks if
'the occurrence of the injury [was] tied to the claimed negligent act or omission within a
reasonable lapse of time' (Williams v State, 969 NE2d 197, 199 [2012], quoting Pagan v
Goldberger, 51 AD2d 508, 511 [2d Dept 1976]). Here, the lapse of 22 years between
defendant's alleged act of negligence and the fire is not a reasonable lapse of time.
One other point should be addressed. The absence of an expert's affidavit is not
fatal to defendant's motion for two reasons. First, the complaint does not allege
professional malpractice, but only negligence. Thus, as the plaintiffs sidestep the issues
of statute of limitations, privity and duty, they cannot turn around and argue that an expert
affidavit is required . See Michael v He Gin Lee Architect Planner, PLLC, _ AD3d_,
2017 NY Slip Op 06177 [2d Dept 2017]; Ossining Union Free School District v Anderson
LaRocca Anderson, 73 NY2d 417 (1989). Second , the basis of the defendant's argument
is not that it did not depart from good and acceptable engineering practice, as that is not
an allegation in the complaint, but that Crockett did not permit it to complete the job, so
they never saw the installation nor did they conduct any inspection of it, and as a result,
the Drawing submitted for the permit, without more, cannot be the proximate cause of the
fire . See 530 E. 89 Corp. v Unger, 43 NY2d 776, 777 (1977); 43 Park Owners Group LLC
v Commonwealth Land Tit. Ins. Co., 121 AD3d 937, 939 [2d Dept 2014] . Defendant also
argues that, in light of all of the boiler inspections and in light of the service calls on the
day of the fire and on the day before, even if it was negligent, its negligence in 1991 was
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not the proximate cause of the 2013 fire . Movants have made a prima facie case for
summary judgment, and plaintiffs have not overcome defendant's motion. The arguments
they make amount to little more than speculation. The claim that defendant's conduct in
1991 was the proximate cause of the fire in 2013 is simply too attenuated. Arbor Realty
Funding, LLC v Herrick, Feinstein LLP, 2012 NY Slip Op 33522[U] [Sup Ct, NY County
2012].
Accordingly, defendant's summary judgment motion is granted, and plaintiffs'
complaint is dismissed in its entirety.
This shall constitute the decision and order of the court.
Dated: August 25, 2017
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ENTER:
Hon. Debra Silber, J.S.C.
Hon. Debra Silber Justice Sui>reme Court
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