2019 12:59 PM

Exhibit B

FILED: NEW YORK COUNTY CLERK 05/23/2019 12:59 PM INDEX NO. 150709/2012

NYSCEF DOC. NO. 467 RECEIVED NYSCEF: 05/23/2019

SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK

ROBERT E. SHANNON, JR., Index No. 150709/2012

-against-Plaintiff,

THE NEW YORK TIMES BUILDING LLC, THE Repl Affidavit ofNEW YORK TIMES BUILDING CO DOMINIUM, Jon . Halpern, P.E.THE NEW YORK TIMES COMPANY BOARD OFMANAGERS, THE NEW YORK TIMES COMPANY,FOREST CITY RATNER COMPANIES LLCFOREST CITY BOARD OF MANAGE FIllSTNEW YORK PARTNERS MANAGEME , LLC andFUJITEC AMERICA, INC.,

Defendants.

.......___---....._ __--...........--.................----------------·X

State of New Yorkss:

County of Nassau )

JON B. HALPERN, P.E., having attained the age of majority and being duly

sworn, deposes and says as follows:

1. I am a professional engineer, duly licensed by the State of New York,

and a consulting engineer in the field of vertical transportation, which includes

matters of design, construction, installation, maintenance and repair of elevators,

escalators, and certain other devices.

2. I have been retained by attorney Gerald Neal Swartz to consult on

behalf of his client, FUJITEC AMERICA, INC. ("FAI"), a defendant in this action.

3. I make this reply affidavit in reply to plaintiff's opposition and in

further support of the cross-motion by FAI for summary judgment. My affidavit in

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opposition to plaintiff's motion for summary judgment and in support of FAI's

cross-motion for summary judgment was submitted previously with the cross-

motion.

4. I have reviewed the supplemental affidavit of Patrick Carrajat, which is

part of plaintiff's opposition ("Carrajat supplemental affidavit")¹. It fails to offer any

valid opinions, as Mr. Carrajat states opinions that are speculative, not supported by

the evidence, contradicted by the evidence and contradicted by his own prior sworn

statements. He concludes that the prior inspections of the cables demonstrate that

the condition of the cables was hazardous and dangerous and required their

replacement. In addition, Mr. Carrajat cites standards that were never adopted by the

City of New York and, therefore, do not apply. Based on his misinterpretation of

standards, Mr. Carrajat concludes that the cables should have been replaced and

criticizes FAI's maintenance records. Mr. Carrajat expresses opinions that defy

principles of science and physics, and which are beyond his area of expertise, as he

is neither an engineer nor a scientist. He also makes the improper claim that FAI

violated § 27-1006 of the New York City Administrative Code2, alleging that it

disposed of the broken hoist cable and thus, deprived plaintiff of an opportunity to

3 References herein to the "CarrajatAffidavit"

refer to Mr. Carrajat's affidavit submitted in

support of plaintiff's motion for summary judgment.2 The accident reporting requirements are now in Chapter 30 § BC3012.1. Prior to 2009, they were

in Subchapter 18, § 27-1006.

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examine it, when there is no evidence of such a violation and § 27-1006 did not give

plaintiff a right to examine the broken cable.

5. There is no evidence that prior inspections indicated that the steel hoist

cables were"hazardous"

or "dangerous to human life andsafety"

under § I 1-02 of

the Rules of the City of New York ("RCNY"), or were "worn to such an extent as to

affect the safe and reliable operation [of the elevator]". See NYC Admin. Code §

28-304.6.2 and § 28-304.6.3. See Halpem affidavit ¶¶ 18, 27 and 28.

6. Mr. Carrajat insists on mischaracterizing the previously-known

condition of the steel hoist cable as"hazardous"

and "very serious", with apparent

"structural breakdown". The hoist cables were inspected on at least two separate

occasions in 201 1, prior to the subject incident, by independent elevator inspectors,

licensed by the City of New York. [Neto Report, Exhibit"12"3

and Category 1,

annual inspection/test 6/10/201 1, FAI Exhibit "D"4, pp. 1-35; affidavit of Anthony

Carlo ("Carlo affidavit"), submitted in support of the cross-motion, $15 and PVT

inspection, Exhibit "13"]. None of those inspectors found the condition of the cables

to be"hazardous"

or"dangerous"

or "worn to such an extent as to affect the safe and

reliable operation [of the elevator]". See NYC Admin. Code § 28-304.6.2.

3 Numbered exhibit references in this form refer to exhibits to plaintiff's motion.4 Lettered exhibit references in this form refer to exhibits to FAPs cross-motion

["A"through

"U"] and additional exhibits to this reply.s The "hoist

cables"(elevator part 52) passed inspection, as they were not listed as

"unsatisfactory". Highlighting added to the exhibit for the convenience of the court.

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Otherwise, they would have shut down the elevator immediately and contacted the

Department of Buildings ("DOB"), as it was their official duty to do so. NYC

Admin. Code § 28-304.6.3. This did not occur.

7. Mr. Carrajat claims that the prior inspections put FAI on notice that the

cables had to be replaced (see e.g., Carrajat supplemental affidavit ¶¶ 25 and 31),

but the undisputed evidence is to the contrary. Neither the PVT notice of violation

[Exhibit "13"] nor the Neto Report [Neto Report, Exhibit "12", p. 6] recommend

that steel cables be replaced. The PVT notice conspicuously left unchecked the

optional choice of specifying"replace"

as the required remedy. Exhibit "13". Thus,

the independent inspectors who were in a position to observe the condition of the

hoist cables, unlike Mr. Carrajat, did not consider that the cables needed to be

replaced. For Mr. Carrajat to read something else into these inspections is pure

speculation on his part.

8. Mr. Carrajat's supplemental affidavit relies on the wrong standards.

The NY City Administrative Code specifies which versions of ASME Al 7.1 have

been adopted and apply to elevators in the City of NY. They are not the versions

cited by Mr. Carrajat. To support his statements that the cable should have been

replaced, Mr. Carrajat relies improperly on a diagram "Fig.T-1"

from ASME A17.1-

2013, which is not only two years post-accident, but has not been adopted by the

City of New York.

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9. In 2008, NYC adopted a new Building Code (the Building Code of

2008), which is in line with the International Building Code, replacing the former

Building Code of 1968. NYC Admin. Code § 28-701.2. That Code went into full

effectin June of2009. Elevators are subject to the version ofthe Code, under which

they were installed (1968 Building Code as amended), and any retroactive provisions

as provided in Chapter 30 and Appendix K of the 2008 Building Code.

10. Prior to 2009, the 1968 Building Code consisted of the NYC Admin.

Code, Title 27 Subchapter 18 and Reference Standard 18 ("RS-18"). RS-18 adopted

the ASME Al 7.1 - 1996 Code, effectively for the years 2004-2008, thus making it

applicable to the subject elevator, which was installed in 2007, essentially as to its

design and construction.

11. Under the 2008 Building Code, Appendix K adopted ASME Al7.1-

2000, Al7.la-2002 (a supplement) and Al7.1b-2003 (a supplement). NYCBC

Appendix K, ch. Kl, § K101.1, FAI Exhibit "X". The 2002 and 2003 supplements

do not affect any ofthe sections that we are citing.

12. ASME Al7.1-1996 is applicable to the subject elevator, which was

installed in 2007, as to design and construction, and ASME Al7.1-2000(as modified

by the supplement of 2002), applies with respect to maintenance and inspections

performed thereafter.

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13. Mr. Carrajat claims that the mere presence of"rouge"

required that the

cables be replaced, based upon a flow chart or logic diagram which he extracted

from A17.1-2013. The diagram is not controlling, but is only for purposes of

illustration. Mr. Carrajat's claim is not at all supported by the standard, not in the

applicable version (A l7.1-2000) or in the post-accident version. The applicable

Code provision, ASME Al7.1-2000 § 8.11.2.1.3 (cc) (1), sets forth the criteria to

determine when replacement of steel hoist cables is required. The only context in

which rouge is mentioned is in subparagraph (d) of that provision:

If in the judgment of the inspector, any unfavorable

condition, such as fretting corrosion (red dust or rouge) ...

exists, the criteria for broken wires will be reduced by

50% ... for the three conditions described above; ....

(emphasis supplied).

ASME A17.1-2000 § 8.11.2.1.3 (cc) (1). See FAI Exhibit "Y". The mere presence

of rouge, therefore, does not require that the hoist cables be replaced. In fact, the

only consequence under this provision is a reduction of 50% in certain inspection

criteria. The presence of "metalfilings"

is likewise a judgment call, which could

constitute an "unfavorable condition", as referenced in subparagraph (d), quoted

above.

14. Neither the Neto report nor the PVT violation notice required

replacement of the hoist cables. Clearly, both independent, licensed inspectors, the

PVT inspector and the inspector from Neto & Associates, Inc., were of the opinion

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that the criteria requiring replacement of the hoist cables had not been met,

notwithstanding the presence of rouge or metal filings. But Mr. Carrajat chooses to

ignore this evidence and to assert instead that the PVT violation required the cables

to be replaced.

15. Mr. Carrajat disingenuously states that the elevator was "falling",

although this directly contradicts his own sworn statements made in his earlier

affidavit, that the plaintiff merely"perceived"

(or rather misperceived) that the

elevator was descending "at a faster rate thannormal"

[Carrajat affidavit ¶ 3], when

in fact, as Mr. Carrajat previously conceded, there is no evidence that an overspeed

occurred. Carrajat affidavit ¶ 4. In fact, Mr. Carrajat conceded previously that the

elevator did not overspeed and did not make a "safety stop", but rather that it made

a stop using its brake. Carrajat affidavit¶4.As I stated previously, the Code defines

and requires that such a stop, by removing power from the driving machine and

applying the brake, is safe for passengers. Halpern affidavit ¶¶ 5, 35 and 48. Mr.

Carrajat does not and cannot dispute that. Mr. Carrajat's assertion that the stop, by

removing power from the driving machine and applying the brake, would be

"severe"is a vague characterization of no scientific significance and is not supported

by any evidence. Carrajat supplemental affidavit ¶ 28 (contradicting himself). His

position is not supported by the Al7.1 Code, by the accelerometer tests, by the

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published study6or by the video7. Plaintiff's alleged

"perception"is not scientific

proof of an overspeed, as he was in an enclosed space with no windows and thus, he

had no frame of reference to observe any indication of speed. That is quite different

from a motorist's visual perception of vehicle speed.

16. Mr. Carrajat's statements that the stop was unexpected, such that

plaintiff had no time to prepare for it, is contradicted by the video and by plaintiff's

own deposition testimony, that he crouched down in a corner of the elevator to brace

himself in anticipation of the stop. Shannon EBT pp. 54: 21, 55:21- 56:11 ("I

squatted to brace ...."), FAI Exhibit "I". Why else would he brace himself if not

because he was anticipating that the elevator would stop?

17. Mr. Carrajat has gone beyond his qualifications in elevator maintenance

and has delved into the realm of engineering and science, when he states that the

accelerometer tests are invalid, because they were not conducted under conditions

that included a broken cable. Newton's laws of physics and the physical facts

contradict his conclusion. The mass of the broken cable (approximately 470 pounds

or 15 slugs8) is insignificant relative to the mass of the elevator cab (approximately

18,000 pounds or 600 slugs), and thus, it could not impart a significant force. By

6(Yung, Adelino, P.E, and Gowda, Ashok, Ph.D. Biomechanical Analysis of Injury Potential for

Human Occupants During Emergency Elevator Stops, Elevator World December 2002, pp. 68-

71).7 See FAI Exhibit

"J"and Exhibit "I".

8 A slug is the unit of mass generally accepted in the U.S. system of weights and measures.

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conservative estimate, the steel hoist cable weighs, approximately 470 pounds.

Ironically, additional weight on the elevator would cause the brake stop to be more

gradual than otherwise.

18. Despite the breaking of one cable, the elevator remained securely

suspended from the other eight steel hoist cables. The broken cable did not penetrate

the top of the elevator cab. More significantly, there was no breakage of any of the

glass fluorescent light tubes, which illuminated the inside of the elevator. These

tubes were located in the space above the plastic ceiling tiles, and the video clearly

shows that the lighting in the elevator was not caused to grow dimmer. The video

also shows that none of the plastic ceiling tiles was caused to fall from the ceiling

grid or to be disturbed from its proper position. [At most, one of the ceiling tiles

appears to have a small crack in it, but there is only speculation as to when that crack

occurred.]

19. To support his claim that FAI did not comply with industry standards

for maintenance record keeping, Mr. Carrajat misstates the standard, in addition to

citing to the wrong edition of the standard. Part 8 of A17.1-2000 is applicable in the

City of New York, and it does not require that elevator maintenance records be kept

in the machine room. It requires only that "maintenance records shall be available to

the elevator personnel". ASME Al 7.1-2000, p. 329, § 8.6.I.4.2 Record Availability,

FAI Exhibit "Z". The check chart for the elevator for the current year was kept in

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the machine room. Carlo affidavit ¶ 8. Other records were kept in a computer

database, which was accessible by elevator personnel via laptop computer. ASME

AI7.1-2000, p. 329, § 8.6.1.4.1 describes what the records should contain, and the

FAI records are consistent with those requirements.

20. Mr. Carrajat misinterprets the FAI check chart (Maintenance Log)[FAI

Exhibit "B", p. 3], falsely·stating that the check chart required inspection of the hoist

ropes only once a year, in January. The FAI check chart states clearly, under the

heading MACHINE ROOM, "INSPECT/SERVICE ROPES...."

Thus, his

suggestion that the steel cables (commonly referred to as "ropes") were not inspected

every three months, including in October 2011, is not substantiated by the evidence.

In fact, the item to which Mr. Carrajat is referring is a different maintenañce item

entirely. What Mr. Carrajat refers to is the inspection of the governor rope

("INSPECT/SERVICE ALL GOVERNOR AND ROPE"). The governor is an

overspeed protection device, which uses a steel cable to drive a centrifugal governor

to detect an overspeed of the elevator, but does not support the weight ofthe elevator.

As such, a less frequent inspection is necessary.

21. Carrajat ¶¶ 20-21 is a conclusion, that FAI did nothing to monitor the

condition of the cables, which completely ignores the evidence. The check chart,

which is authenticated and explained in the affidavit of Anthony Carlo, shows that

the"ropes"

were inspected every three months, and as recently as October 201 1

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before the incident. This is further confirmed by the resident mechanic, Michael

Day, in his deposition. Mr. Carrajat has chosen to ignore these facts, because they

do not support the conclusion he desires. In $21, he speculates that the"inspection"

of the ropes, noted in FAI's check chart,"typically"

includes only"lubrication"

and

not "a full inspection". Not only is his conclusion here without any evidentiary

support, it is vague to the point of being meaningless. See also Carrajat Supplemental

¶¶ 24 and 26.

22. The applicable Code provision, ASME A17.1-2000, p. 329, § 8.6.1.4.1

describes what the records should contain, and the FAI records are consistent with

those requirements. FAI Exhibit "Z". The records include the vision Ticket

Summary, as well as the check chart. They require dates and descriptions of the

various activities. The affidavit of Anthony Carlo identifies and describes the records

and the procedures for preparing and maintaining these records. In my opinion,

FAI's maintenance records comply with applicable industry standards and with the

inapplicable section cited by Mr. Carrajat, § 8.6.1.4.1 of ASME Al 7.1-2004.

23. The persistent assertion by Mr. Carrajat that FAI somehow improperly

deprived plaintiff of potential evidence, based on an alleged violation of NYC

Admin. Code 27-2006 or elevator industry standard, again is not supported by

evidence or by common sense and logic. It is significant that no violation was issued

by the DOB for a violation ofNYC Admin. Code § 27-1006, although the DOB was

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notified with sufficient promptness, such that a DOB inspector was on-site on the

same day as the accident. This tends to prove that there was no such violation, either

for failure to notify the DOB or for disposal of the cable without DOB permission.

NYC Admin. Code § 27-1006 ("No part shall be removed from the premises ...

until permission to do so has been granted by the commissioner").

24. NYC Admin. Code § 27-1006 does not give a private individual any

right to preservation of evidence, particularly when at the time of the incident, that

individual denied injury and immediately left the premises afiter refusing medical

assistance. NYC Admin. Code § 27-1006 ("... shall promptly notify the

commissioner of every accident involving injury to any person requiring the services

of a physician ....").

25. Neither is there any provision in NYC Admin. Code § 27-1006 that

would have required FAI "to have a qualified inspector furnish a report of the

condition of the cable following the subject incident", as asserted by Mr. Carrajat.

Carrajat supplemental ¶ 33. That is a complete fabrication.

26. In addition, there is no elevator industry standard requiring that a

broken hoist cable be preserved so that a passenger may have an opportunity to

examine it, metallurgically or otherwise. This would seem particularly illogical

where the passenger had denied being injured and immediately left the premises after

refusing medical assistance, as this plaintiff did, See Carrajat Supplemental ¶ 33,

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wrongly asserting that FAI deprived Mr. Carrajat of the opportunity to examine the

broken cable.

27. I believe that the Carrajat supplemental affidavit fails to raise any valid

opposing opinion evidence for the reasons stated above and that the cross-motion by

F AI for summary judgment should be granted.

JON B. H ALPERN, P.E.

Sworn to before me this

/ 4 th day of January 2018

Notary Pu ic

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