Exhibit B
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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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