Opinion
Index 300076/2015E
09-13-2021
Anthony G. Garcia, Plaintiff, v. 13 West 38, LLC, et al., Defendants.
Adrian Armstrong, J.
In NYSCEF Motion Sequence No. 5, defendant Just Renovations & GC, LLC (hereinafter, "Just Renovations") moves for summary judgment dismissing the plaintiff's complaint and all cross-claims asserted against it. Plaintiff cross-moves for partial summary judgment on the issue of liability under Labor Law § 240 (1).
In NYSCEF Motion Sequence No. 6, defendant and third party defendant Bene Rialto LLC ("Bene Rialto") moves for summary judgment dismissing the plaintiff's complaint and all cross-claims asserted against it. Plaintiff cross-moves for partial summary judgment on the issue of liability under Labor Law § 240 (1).
In NYSCEF Motion Sequence No. 7, defendant third party plaintiff 13 West 38 LLC ("13 West 38") and second third-party defendant NYC Management LLC ("NYC Management") (also at times collectively referred to herein as the "owner defendants"), move for an Order awarding summary judgment dismissing all claims as to 13 West 38 and NYC Management, and in addition, awarding 13 West 38 contractual indemnity and costs against third party defendants Bene Rialto, FroMark, Inc., and Uplift Elevator, or in the alternative, common law indemnity, and costs, against defendant Uplift Elevator, and awarding common law indemnity against Just Renovations. Plaintiff cross-moves for partial summary judgment on the issue of liability under Labor Law § 240 (1).
In NYSCEF Motion Sequence No. 8, FroMark Inc. ("Fromark") moves for an Order dismissing the plaintiff's complaint and the third party complaint of 13 West 38 LLC as against third-party defendant FroMark along with any and all cross-claims. Plaintiff cross-moves for partial summary judgment on the issue of liability under Labor Law § 240 (1).
In NYSCEF Motion Sequence No. 9, defendant Uplift Elevator Corp. ("Uplift") moves for summary judgment dismissing the plaintiff's complaint and all cross-claims asserted against it. Plaintiff cross-moves for partial summary judgment on the issue of liability under Labor Law § 240 (1).
Overview
This personal injury action arises out of a September 21, 2014 construction accident that occurred at 13 West 38th Street in connection with the renovation and upgrading of an elevator. According to deposition testimony of both the plaintiff and Jose Rivera, an elevator mechanic employed by Uplift, Rivera was having difficulty finishing his assigned tasks in connection with the renovation of the elevator. Rivera knew the plaintiff as they had previously worked together for another elevator repair company unrelated to the present action. Rivera requested that plaintiff assist him in completing the work on a Sunday, which entailed "[w]iring up hall fixtures, locks, double checking the wiring on the actual controller and helping wiring up top of the car which is the inspection box, light fixture, emergency stop switch."
Prior to the accident, Rivera had not worked weekends for Uplift. He did not tell Uplift that he was working on the date of the accident, or that he was hiring someone to help him. Rivera and plaintiff were able to work on the Sunday when the accident occurred because the building was open and numerous other workers from various trades were there. There was no sign-in sheet at the building.
Rivera agreed to pay the plaintiff $200 to $300, depending on how much time was spent on the job. Plaintiff had no discussions concerning this arrangement with anyone from Uplift. Plaintiff testified that he "assumed" that the money was coming from Uplift, but he admitted that Rivera never stated that payment was coming from Uplift. Rivera knew that he had no permission to hire a helper.
On the Sunday when they arrived at the worksite, plaintiff wore an "Uplift" t-shirt given to him by Rivera. While other workers were on-site, none of them were working on the elevators. Plaintiff observed that Rivera had installed a "run box" on the elevator. A "run box" is a device that allows repairing or installing elevators to control the movement of the elevator. The particular "run box" had two buttons, one for upward movement, and one for downward movement. Plaintiff testified at his deposition that he knew that a "run box" with only two buttons was unsafe. A proper "run box" would be equipped with a key switch, an emergency stop switch, and an "enable button" which must be depressed in order for the elevator to move, and thus protect against accidentally depressing the up or down buttons. Plaintiff also knew that the elevator was not set to a slower speed, which would be used when working on an elevator. Rivera stated that while plaintiff was on top of the elevator cab, Rivera accidentally placed the "run box" under his arm, and thereby activated the elevator's upward movement. The elevator moved rapidly upward, causing plaintiff to strike a structure at the top of the elevator shaft and fall against the top of the elevator cab. Plaintiff then fell through the top of the elevator, through the emergency hatch.
Uplift received two violations in connection with plaintiff's accident, which were issued on October 1, 2014 and October 3, 2014: (1) failure to report the accident, and (2) defective run box.
As testified by Silverance, Uplift's Vice-President, an inspection by the Building Department inspector Brian McCue, found that the temporary run box had no enable button. Silverance confirmed that the temporary run box was supplied by Uplift. Silverance also testified that Rivera would have installed the temporary run box.
Defendant Just Renovations argues that defendant 13 West 38 LLC owned the subject property, and that Just Renovations was a contractor for a renovation project at the premises, hired by Rialto and FroMark, and that it was not a general contractor. Further, Just Renovations argues that Uplift was hired by NYC Management, LLC, as the contractor to perform the modernization of the elevator. Just Renovations argues that it never directed, instructed or controlled the work done by Uplift, nor did it contract with, supervise or engage in any supervisory role relating to the work done by Uplift. In this regard, Just Renovations relies on the testimony of Silverence, Uplift's Vice-President, who testified that he "never heard of" Just Renovations. Moreover, Just Renovations maintains that Rivera hired plaintiff, and thus plaintiff was not an employee suffered to work at the premises, nor entitled to the protections of the Labor Law.
The Workers' Compensation Appeals Board found that plaintiff was solely Mr. Rivera's employee at the time of the September 21, 2014 accident, and that he was not an employee of Uplift.
Defendant Bene Rialto argues that it is not liable to the plaintiff, as it was a tenant that took occupancy after the accident herein. Angela Ortiz, currently a partner of Besen Partners, LLC, and previously an employee of NYC Management, testified that NYC Management is affiliated with Besen Partners, LLC. Ortiz testified that Bene Rialto was not a tenant at the time of the renovations, and that Just Renovations oversaw the elevator renovations. Further, as did Just Renovations, Bene Rialto argues that there was no nexus between Bene Rialto and the plaintiff. Lastly, Bene Rialto argues that to the extent that the owner 13 West alleges that Bene Rialto exercised supervision over the work, Bene Rialto argues that it was not responsible for the supervision of the work involving the elevator in question, and had no authority to do so.
Contrary to these arguments, defendants 13 West and NYC Management argue that Bene Rialto was the tenant in the building at the time of the accident pursuant to a lease agreement, and that defendant Bene Rialto undertook to upgrade the building for their business operations. One witness testified that Bene Rialto began occupying the space in July 2014 once construction began (Uplift Exhibit J, pp. 66, 72-73).
Defendants 13 West and NYC Management contend that Bene Rialto agreed to procure insurance to indemnify them, and that Bene Rialto further agreed to indemnify them for any breach by Tenant, Tenant's agent or contractors, or any negligence by Tenant's agents, contractors or employees. In addition, they maintain that FroMark agreed to request and obtain certificates of insurance from all subcontractors naming 13 West, Bene Rialto and FroMark as additional insureds. Lastly, they argue that Uplift specifically agreed to indemnify them with respect to the present incident by letter agreement. With respect to the merits of the action, the owner defendants argue that the court should dismiss plaintiff's Labor Law § 200 and common-law negligence claims because 13 West 38 did not direct, supervise or controll his work on the elevator renovation project. Further, defendants contend that where, as here, a portion of the plaintiff's body was injured by an elevator or lift, or component of an elevator or lift, while it was ascending or descending, there is no Labor Law § 240 (1) violation, citing Gasques v. State of New York, 15 N.Y.3d 869 (2010) and Nevins v. Essex Owners Corp., 276 A.D.2d 315, 316 (1st Dep't 2000). In addition, they argue that none of the violations cited support a claim under Labor Law § 241 (6).
Defendant FroMark argues, as do the other defendants, that plaintiff was solely an employee of Rivera, and not entitled to Labor Law protection from any of the defendants. Moreover, FroMark argues that even if the Labor Law applies, in order for liability to attach to an owner or general contractor under Labor Law § 200, the owner or general contractor must have exercised supervisory control over the activity bringing about the injury, and that in the present case FroMark did not exercise supervisory control. The cause of the accident, FroMark argues, arose out of the methods employed by plaintiff and Rivera in negligently activating the elevator while working on it, and in using the switch without an additional off button. In addition, FroMark argues that the accident did not arise from the application of gravity so as to trigger the application of Labor Law Section § 240 (1), as the elevator was ascending. As to indemnification, FroMark argues that it cannot be liable for common law indemnity, as it was not actively negligent. Further, FroMark argues that it was employed without any written agreement, and as such, contractual indemnity does not apply.
Uplift argues that it is entitled to summary judgment dismissing plaintiff's claims and any and all cross claims against it in their entirety. Uplift argues that plaintiff cannot sustain any claim under Labor Law § 240 because the elevator was not a device contemplated by the statute and plaintiff was not subjected to or injured as a result of a gravity related risk nor did the elevator malfunction at the time of the incident. Uplift further argues that plaintiff cannot sustain a claim under Labor Law § 241 (6) because none of the Industrial Code Provisions cited by plaintiff are applicable. Uplift contends that plaintiff cannot sustain any claim under Labor Law § 200 or common law negligence because Uplift did not owe or breach any legally recognized duty of care to plaintiff, as plaintiff was an employee of Rivera alone and not an employee of Uplift. Uplift further argues that no breach of Labor Law § 241 (6) has been shown, and that it had no common law duty to plaintiff, who was not its employee. Because Uplift was not plaintiff's employer at the time of the accident, Uplift argues, it did not owe any duty of care to plaintiff, and thus plaintiff's common law negligence and Labor Law § 200 claims against Uplift must be dismissed as a matter of law. Finally, Uplift argues that the post-accident indemnity agreement is not enforceable, and further, that common law indemnity will not lie as Uplift was not negligent.
In opposition, and in support of his cross-motion, plaintiff argues that plaintiff was neither a volunteer or trespasser, and that, to the contrary, he was "suffered" to work at the construction site on the day of the accident, and thus he should be granted summary judgment on his Labor Law § 240 (1) claim because Uplift failed to provide adequate safety devices to avoid the occurrence of the injury. According to the plaintiff, the elevator "run box" was "grossly defective" and the elevator speed was excessive for inspection/repair, and the "run box" lacked safety features which would have prevented accidental activation of the elevator.
Discussion
A key determination in this action is whether the plaintiff falls within the class of persons protected by the Labor Law. The present fact pattern falls in the intersection between two distinct lines of cases - those cases holding that mere volunteers are not within the protected class of the Labor Law, and those holding that there must be a "nexus" between the owner and the injured worker. No case has been located in which a worker was surreptitiously employed by another worker acting on his own volition without the knowledge of his employer.
To come within the special class for whose benefit Labor Law liability is imposed, a plaintiff must demonstrate that he or she was "permitted" or "suffered to work" on a building or structure. (Abbatiello v. Lancaster Studio Assocs., 3 N.Y.3d 46, 781 N.Y.S.2d 477 [2004]). Therefore, the Labor Law does not protect a mere volunteer. In Stringer v. Musacchia (11 N.Y.3d 212, 898 N.E.2d 545, 869 N.Y.S.2d 362 [2008]), the plaintiff, who agreed to construct a shed on defendants' property in exchange for being allowed to participate in a turkey hunt on the property, sustained injuries when he fell from a ladder. The Court noted that the protection of the Labor Law did not extend to mere volunteers:
"The primary purpose of Labor Law § 240 (1) is to extend special protections to 'employees' or 'workers' (see Mordkofsky v V.C.V. Dev. Corp., 76 N.Y.2d 573, 577, 563 N.E.2d 263, 561 N.Y.S.2d 892 [1990]; Zimmer v Chemung County Performing Arts, 65 N.Y.2d 513, 520, 482 N.E.2d 898, 493 N.Y.S.2d 102 [1985]). Inclusion in this "special class for whose benefit absolute liability is imposed' requires a plaintiff to "demonstrate that 'he was both permitted or suffered to work on a building or structure and that he was hired by someone, be it [the] owner, contractor or their agent" '(Abbatiello v Lancaster Studio Assoc., 3 N.Y.3d 46, 50-51, 814 N.E.2d 784, 781 N.Y.S.2d 477 [2004], quoting Whelen v Warwick Val. Civic & Social Club, 47 N.Y.2d 970, 971, 393 N.E.2d 1032, 419 N.Y.S.2d 959 [1979]). As a result, we have held that the statute does not apply to a volunteer who performs a service gratuitously (see Whelen v Warwick Val. Civic & Social Club, 47 N.Y.2d at 971; Mordkofsky v V.C.V. Dev. Corp., 76 N.Y.2d at 577). Aside from these references in Whelen and Mordkofsky, however, we have not had the opportunity to elaborate on what differentiates an employee from a volunteer." (Stringer v. Musacchia, 11 N.Y.3d at 215.)
The Court of Appeals held that the facts in Stringer v. Musacchia did not warrant Labor Law protection for the injured worker. Plaintiff's casual, uncompensated agreement did not rise to the level of a formal employment relationship that would warrant granting him the protections of Labor Law § 240 (1). (See also, Doskotch v Pisocki, 168 A.D.3d 1174, 1174, 90 N.Y.S.3d 667, 670 [3d Dept. 2019] ["the protections of Labor Law §§ 200, 240 (1) and 241 extend to workers who have employment relationships with an owner, contractor or agent and do 'not apply to a volunteer who performs a service gratuitously.'")
Plaintiff relies on Vera v Low Income Mktg. Corp., 145 A.D.3d 509, 511-512, 43 N.Y.S.3d 307, 310 [1st Dept. 2016]), in arguing that plaintiff was not a mere "volunteer," and that he was, in fact "permitted" or "suffered" to work. In Vera, the First Department held that, "A contractor properly on the site to off-load dumpsters can not be characterized as a 'volunteer.'" In that case, the general contractor had hired an independent contractor to provide a dumpster as well as helpers to load the debris. The plaintiff, a helper, was permitted entry and access to a second-floor scaffold, where he helped other workers load debris into a container. "[P]laintiff was atop the scaffold at the time of the accident, refuting any suggestion that plaintiff was somehow unauthorized or a volunteer." (Id.) In the present case, the surreptitious manner in which the plaintiff gained entry can hardly be equated with the facts in Vera. While the worker in Vera was held not to be an employee of the general contractor, he was clearly permitted to be at the worksite.
The plaintiff in the present case was a volunteer or trespasser. While he was being compensated for his work, that compensation was entirely from Rivera, a mechanic employed by Uplift. Plaintiff naturally focuses on his own subjective knowledge in arguing that he could have reasonably believed that he was being employed by Uplift. Accepting plaintiff's testimony in this regard as true, and giving the plaintiff every reasonable inference arising from the evidence in his favor, plaintiff had no reasonable, subjective basis to believe that he was being employed by Uplift. By his own admission, plaintiff merely assumed that he was being paid by Uplift. He admittedly had no discussions or contact with any person from Uplift other than Rivera. While plaintiff's testimony that it was not unusual for work to be performed on a Sunday may be taken as plausible on this motion for summary judgment, the fact remains that plaintiff had no basis other than his own speculation that his employment was authorized by Uplift.
Moreover, despite any subjective belief on the plaintiff's part, the facts are clear that Rivera had no authority to hire the plaintiff, and that Rivera was acting on his own volition, without his employer's knowledge or authority.
The foregoing analysis accords with the statute. An owner, contractor or agent is clearly warranted in knowing, and has a duty to know, who is on the job site and what safety precautions are in effect. Allowing workers to bring in "substitutes" for their own personal reasons could only lead to less control and less safety for workers, generally. While plaintiff was hired by Rivera personally and was to be paid by Rivera, plaintiff nevertheless had no "employment relationship with an owner, contractor, or agent." (Doskotch v Pisocki, 168 A.D.3d 1174, supra.) In this regard, Rivera can hardly be deemed an agent for the purpose of the Labor Law, as it was clear he had no authority to hire on behalf of Uplift, and no one suggests that he had such authority.
Further, the mere fact that plaintiff gained admittance to the worksite does not indicate that he was "suffered" to work. Plaintiff admitted he wore an Uplift t-shirt, and thus no one would have any reason to question his presence at the worksite. Secondly, the identity of the person who allowed the plaintiff to enter has not been established. That person may have been a security guard, or some other independent contractor. No reason appears why an unidentified person's act in allowing the plaintiff, who wore the t-shirt of a legitimate contractor, to enter the building has any relevance in determining whether the plaintiff was "hired" or "suffered to work."
To some extent, it has been argued by the defendants that Rivera was not authorized to work on a Sunday. Rivera admitted that he was not permitted by his employer to work on Sunday. It is not clear if there was any general restriction in place as to other trades working on weekends. Plaintiff relies on a NYC Environmental Control Board determination finding that Rivera was an employee authorized to work on a Sunday, and that Rivera hired Garcia. Collateral estoppel applies only where "the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action," and the party who is being estopped "had a full and fair opportunity to litigate the issue in the earlier action." (Simmons v. Trans Express, 37 N.Y.3d 107, 112, 148 N.Y.S.3d 178, 182 [2021].) Those preconditions are not present here, as the issues raised in this action were not considered by the ECB, and that finding, even if relevant, would bind only Uplift. The fact remains that Rivera admitted that he was specifically told not to work on Sunday, and even if coming to work on a Sunday could somehow be justified or excused, the fact that Rivera chose a Sunday in order to avoid detection of his plan is the relevant consideration in this action.
Further support for the fact that plaintiff must be found to be a volunteer, interloper or trespasser is found in Morton v State of New York (15 N.Y.3d 50, 930 N.E.2d 271, 904 N.Y.S.2d 350 [2010]). In Morton v State of New York, the plaintiff worker was employed by a private water company to repair a water main break located in a State-owned highway. The water company failed to obtain a work permit for the job from the New York Department of Transportation, as required by Highway Law § 52. Absent a work permit, or a contract between the State and the company, there was no nexus between the State and the plaintiff, and thus no basis to impose Labor Law liability. Ownership of the premises where the accident occurred by itself was not enough to impose liability under § 241(6). Without the permit, the worker was a trespasser to whom the State owed no duty under § 241(6).
Here, while there was a contractual nexus between the defendants and Uplift, there was no nexus between Uplift and the plaintiff. The plaintiff was in fact a trespasser without authority to work at the premises, as he was hired privately by Rivera to complete Rivera's work, without the knowledge of Rivera's employer Uplift. As in Morton v State of New York, plaintiff was a trespasser to whom the defendants owed no duty under the Labor Law. Because the plaintiff was performing work without Uplift's permission or knowledge, he was not a person "employed" at a work site within the meaning of the Labor Law.
The determination herein rests on the fact that the various defendants had no relation to the injured worker - i.e., no "nexus" to the worker - as was the case in Morton v State of New York. While Rivera's independent conduct in bringing a "stranger" to the work site to finish a job which he was unable or incapable of doing on his own is a factor to be considered, it is not the fact that Rivera's conduct was unauthorized in itself which precludes the protection of the Labor Law. An employee may engage in various manners of behavior on the job site which are unauthorized, but which do not deprive the injured worker of the protection of the Labor Law. For example, even an injury resulting from "horseplay" is within the ambit of the Labor Law. As the First Department stated in a case in which an unauthorized worker drove a power buggy into the plaintiff:
"The fact that the operating engineer was "horse playing" prior to operating the power buggy does not absolve defendant from liability under Labor Law § 241 (6) (see Christey v Gelyon, 88 A.D.2d 769, 770, 451 N.Y.S.2d 947 [4th Dept. 1982] ['It is well established that horseplay or frivolous activities... are natural diversions between coemployees during lulls in work activities and injuries sustained during them are compensable as an incident of the work'])." (T oussaint v Port Auth. of NY & N.J., 174 A.D.3d 42, 45-46, 102 N.Y.S.3d 558, 561 [1st Dept. 2019].)
In any event, Labor Law § 240 (1) does not apply here. The plaintiff was initially injured due to Rivera's alleged mistaken activation of the elevator lift control, which caused the plaintiff to hit the top of the elevator shaft, and not due to the force of gravity. Further, to the extent that plaintiff may have also fallen through the elevator escape hatch, that section again does not apply. (See Bonura v. KWK Assocs., 2 A.D.3d 207, 207, 770 N.Y.S.2d 5, 7 [1st Dept. 2003] ["Plaintiff, an elevator mechanic, was allegedly injured when, as he stepped onto the roof of an elevator cab in defendants' building, the escape hatch cover in the cab's roof gave way under him and he fell into the cab. Plaintiff's Labor Law § 240 (1) claim was properly dismissed since the escape hatch cover was not a protective device within the contemplation of the statute and, accordingly, plaintiff's accident was not attributable to the failure of a statutorily mandated protective device." [Citations omitted].)
As to Labor Law §§ 241(6) and 200, those claims are barred, as the defendants owed plaintiff no duty under the Labor Law. "[T]he nondelegable duty of the Labor Law extends solely to employees or workers (Labor Law §§ 200, 240)." (Camillo v. Olympia & York Properties Co., 157 A.D.2d 34, 44, 554 N.Y.S.2d 532, 536 [1st Dept. 1990].) Nor has the plaintiff established a breach of a duty for common law negligence. Plaintiff, in effect a trespasser, engaged in a hazardous activity knowing that the elevator speed was too high, and that the "run box" was dangerous. Plaintiff's own reckless conduct, in the absence of the protection of the Labor Law, in working in a dangerous manner without proper safety equipment, constituting the sole legal cause of his ensuing injuries, thus absolving Uplift and the remaining defendants of common law negligence. (See, e.g., Tkeshelashvili v State of New York, 18 N.Y.3d 199, 960 N.E.2d 414, 4936 N.Y.S.2d 645 [2011].)
With respect to the claims against Uplift for contractual indemnity, these claims rest on a post-accident agreement by Uplift dated November 25, 2014. Although a party generally may not seek contractual indemnification where the contract is executed after the alleged loss (see Beckford v City of New York, 261 A.D.2d 158, 689 N.Y.S.2d 98 [1st Dept. 1999]), an indemnification agreement executed after an accident has occurred may be applied retroactively where the indemnitee establishes, as a matter of law, that the parties intended that it be applied as of that date (see Cinquemani v Old Slip Assoc., LP, 77 A.D.3d 603, 912 N.Y.S.2d 224 [2d Dept. 2010].) The agreement here specifically references the accident and thus was clearly intended to apply retroactively. Uplift now argues that the agreement violates the General Obligations Law § 5-322.1 because it does not include any saving clause that excludes indemnity for negligence of the parties seeking to be indemnified. However, as the owner defendants are free from fault as a matter of law, the indemnity provision is not void under General Obligations Law § 5-322.1. (Nazario v 222 Broadway, LLC, 135 A.D.3d 506, 510, 23 N.Y.S.3d 192, 196 [1st Dept. 2016] [clause purporting to indemnify indemnitee from its own negligence not void where indemnitee was free from negligence]). Any claim of common law indemnity is dismissed as to Uplift in the absence of any actionable negligence on Uplift's part.
The owner defendants are not entitled to contractual indemnification by FroMark. The agreement between FroMark and Bene Rialto provides that FroMark will "request and obtain Certificates of Insurance from all subcontractors naming 13 West 38 Street, LLC, Bene Rialto, LLC & FroMark, Inc. as additional insured." The agreement makes no reference to indemnification. Since no agreement to indemnify is clearly articulated, and the purported undertaking is contained in a contract to which the owner defendants were not signatories, there is no basis for contractual indemnification. (See Tonking v Port Auth. of NY & N.J., 3 N.Y.3d 486, 490, 821 N.E.2d 133, 787 N.Y.S.2d 708 [2004]; Sicilia v City of New York, 127 A.D.3d 628, 8 N.Y.S.3d 177 [1st Dept. 2015]). There is also no basis for common law indemnification in the absence of any showing of fault on the part of FroMark.
To the extent contractual indemnification is sought from Bene Rialto, issues of fact exist as to when Bene Rialto executed the lease and took occupancy, and thus as to when the obligation to indemnify under the lease was "triggered."
Conclusions
The arguments not addressed herein are found either to be without merit, or do not affect the determination herein.
Accordingly, it is
ORDERED that the complaint of plaintiff Anthony G. Garcia is dismissed, and it is
ORDERED that the claim of the owner defendants for common law indemnification as to Uplift is dismissed, and that said defendants are granted contractual indemnification against Uplift, and it is
ORDERED that claims of the owner defendants against FroMark for indemnity are dismissed, and it is further
ORDERED that the claim for contractual indemnification by the owner defendants against Bene Rialto is denied as issues of fact exist, and it is
ORDERED that any relief not specifically granted herein is denied.
This is the Decision and Order of the Court.