`FILED: ERIE COUNTY CLERK 04E2018 03:27 PM
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`NYSCEF DOC. NO. 124
`NYSCEF DOC. NO. 124
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`INDEX NO. 803977/2016
`INDEX NO- 803977/2016
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`RaCaIVaD uYSCEF: 04/25/2018
`RECEIVED NYSCEF: 04/25/2018
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`At a Civil Special Term of the
`Supreme Court, held in and for the
`County of Erie, State of New York, on the
`28‘l1 day of March 2018.
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`PRESIDING: HON. PAUL B. WOJTASZEK, J.S.C.
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`SUPREME COURT: STATE OF NEW YORK
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`COUNTY OF ERIE
`____________.____—-——-———
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`JAYME A. MAST,
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`Plaintiff,
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`vs.
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`GERARD A. DESIMONE,
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`Defendant.
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`DECISION and ORDER
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`Index #803977/2016
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`DECISION and ORDER
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`On August 18, 2014 the plaintiff, Jayme A. Mast (hereinafier the “plaintiff’), was injured
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`when she was involved in a motor vehicle accident involving the defendant, Gerard A. Desimone
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`(hereinafter the “defendant.“). As a result of this incident, an action seeking damages for bodily
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`injuries was commenced. The matter ultimately proceeded to trial on February 1, 2018, concluding
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`on February 13, 2018.
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`3F DOC. NO. 124
`NYSCEF DOC. NO. 124
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`INDEX NO. 803977/2016
`INDEX NO~ 803977/2016
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`RaCaIVaD uYSCEF: 04/25/2018
`RECEIVED NYSCEF: 04/25/2018
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`BACKGROUND:
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`The plaintiff alleged that the defendant was negligent in the happening of the accident and
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`that the accident resulted in a “serious injury” pursuant to New York Insurance Law 5102(d).
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`The plaintiff claimed entitlement to damages based upon the following three “serious
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`injury” categories:
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`0 Permanent consequential limitation of use ofa body organ or member;
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`0
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`Significant limitation of use of a body function or system; and
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`u A medically determined injury or impairment of a non—permanent nature
`which prevents the injured person from performing substantially all of the
`material acts which constitute such person's usual and customary daily
`activities for not less than ninety days during the one hundred eighty days
`immediately following the occurrence of the injury or
`impairment
`(Insurance Law 5102(d)).
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`Extensive litigation and motion practice was conducted in this action up to and during the
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`time of the trial. The matter proceeded to trial, and on February 13, 2018 after due deliberation
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`the jury unanimously found the defendant’s negligence was a substantial factor in causing the
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`plaintiff to sustain two categories of “serious injury,” The jury found the plaintiff sustained a
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`qualifying injury under the significant limitation and 90/180 categories, but notably the jury
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`determined that the plaintiff did not sustain a permanent consequential injury as a result of the
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`accident. The only monetary award made by the jury was for past pain and suffering in the amount
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`of $120,000. The jury verdict was reported to the Court, and this concluded the trial proceedings.
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`PROCEDURAL POSTURE:
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`The plaintiff now moves pursuant to CPLR 4404(a) and 5501(c) for an Order setting aside
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`the jury verdict and increasing the jury’s award for both past and future pain and suffering as well
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`as future economic loss. Alternatively, the plaintiff asks for a new trial on damages only. The
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`plaintiff argues that the verdict is against the weight of the evidence.
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`NYSCEF DOC. NO. 124
`NYSCEF DOC. NO. 124
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`INDEX NO. 803977/2016
`INDEX NO- 803977/2016
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`RMCMIVMD YSCEF: 04/25/2018
`RECEIVED NYSCEF: 04/25/2018
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`In support of her motion, the plaintiff submitted the Attorney Affirmation of Nicholas J.
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`Shemik, Esq. with attached exhibits sworn to on February 26, 2018 (hereinafter the “Shemik
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`Affirmation”). The defendant’s opposition papers consist of the Attorney Affirmation of Leah A.
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`Costanzo, Esq. with an attached exhibit sworn to on March 16, 2018 (hereinafter the “Costanzo
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`Affirmation”).
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`Counsel for plaintiff and defendant personally appeared for oral argument on March 28,
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`2018 in further support of their respective positions.
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`CONCLUSIONS OF LAW:
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`This Court has reviewed all submissions, and heard oral argument of all parties. A Court
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`must be very methodical and selective when substituting its own judgment for that of a jury:
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`CPLR§ 4404(a). Post trial motion for judgment and new trial:
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`Motion after trial where jury required. After a trial of a cause of action or issue
`triable of right by a jury, upon the motion of any party or on its own initiative, the
`court may set aside a verdict or any judgment entered thereon and direct that
`judgment be entered in favor of a party entitled to judgment as a matter of law or it
`may order a new trial of a cause ofaction or separable issue where the verdict is
`contrary to the weight ofthe evidence, in the interest of justice or where the jury
`cannot agree after being kept together for as long as is deemed reasonable by the
`court (CPLR § 4404(a)) (emphasis added).
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`The law in New York is very well-settled when it comes to disturbing jury verdicts. Where
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`a party moves to set aside a jury verdict as against the weight of the evidence, as plaintiff does
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`here, the motion should not be granted unless the preponderance of the evidence in the movant’s
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`favor is so great that the verdict could not have been reached upon any fair interpretation of the
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`evidence (Lolik v. Big VSupermarkets, 86 NY2d 744, 746 [1995]; Ruddock v. Happell, 307 AD2d
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`719, 720, 763 NYSZd 868 [4th Dept 2003]) (internal citation omitted). If “the verdict is one that
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`NYSCEF DOC. NO. 124
`NYSCEF DOC. NO. 124
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`INDEX NO. 803977/2016
`INDEX NO- 803977/2016
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`RaCaIVaD vYSCEF: 04/25/2018
`RECEIVED NYSCEF: 04/25/2018
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`reasonable persons could have rendered after receiving conflicting evidence, the court should not
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`substitute its judgment for that of the jury” (Ruddock, 307 AD2d at 720).
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`Whether a particular factual determination is against the weight of the evidence is itself a
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`factual question, and the question as to whether a verdict is against the weight of the evidence
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`“involves what is in large part a discretionary balancing of many factors” (Cohen v. Hallmark
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`Cards, 45 NY2d 493, 498, 499 [1978]).
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`The standard is clear and seemingly uncontested by the parties here, and this Court is very
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`conscious of the importance of not invading the province of a clear—headed jury that has weighed
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`the evidence, listened intently to clear and agreed upon jury instructions, deliberated, and then
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`reached a unanimous verdict on all questions.
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`Clearly it is within the province of the jury to determine issues of credibility, and great
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`deference should be given to the jury because it has the opportunity to see and hear the witnesses
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`(see Sauter v. Calabretta, 103 AD3d 1220, 959 NYS2d 579 [4th Dept 2013]; Kim v. New York City
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`Transit Authority, 87 AD3d 531, 928 NYSZd 315 [2d Dept 2011}). The jury in the present case
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`saw and heard the testimony from the actors involved in the incident as well as experts who offered
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`opinion testimony.
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`The jury assessed their respective credibility, and then unanimously
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`determined the case. Great deference should be given to this process generally, and this Court
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`must afford such deference to the jury in this case because the evidence did not so preponderate in
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`favor of the plaintiff that the jury verdict could not have been reached on any fair interpretation of
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`the evidence (see Sauter, 103 AD3d at 1220). To invade the deliberative process and province of
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`the jury under the facts in this case would be an abuse of discretionary power.
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`Plaintiff argues that the jury determination with respect to past pain and suffering, future
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`pain and suffering, and future economic loss deviates materially from reasonable compensation
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`NYSCEF DOC. NO. 124
`NYSCEF DOC. NO. 124
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`INDEX NO. 803977/2016
`INDEX NO- 803977/2016
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`RMCMIVMD YSCEF: 04/25/2018
`RECEIVED NYSCEF: 04/25/2018
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`due to, among other arguments, the trial testimony of Dr. Fishkin, Dr. Landi, Robert Tremp, Dr.
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`Lichtenstein, and the plaintiff herself.
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`In succinct terms, the plaintiff argues that her evidence in
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`the form of “testimony and documentary proof was in complete and absolute agreement on all
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`issues regarding [plaintiffs] injuries, their causation, and their severity” (Shemik Affirmation,
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`$123). Specifically, that plaintiff suffered a permanent LS-Sl fusion secondary to a herniated disc
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`and that her work-life expectancy wili be limited by 50% (Shemik Affirmation, 1123).
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`However, when questioned during oral argument in support of this motion, plaintiff’s
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`counsel conceded that there was, in fact, conflicting proof regarding the likelihood, severity, and
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`causation of plaintiff’s alleged future pain and suffering (see Melnick v. Chase, 148 AD3d 1589,
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`1590 [4‘h Dept 2017]) (holding that ajury verdict regarding future damages should not be disturbed
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`as against the weight of the evidence where there is conflicting proof concerning the likelihood,
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`severity, and causation of alleged future pain and suffering).
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`The jury in this case heard extensive proof from both parties as to all issues in dispute.
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`Once deliberations began, the jury among other things asked the Court to read back the entire trial
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`testimony of both the plaintiff as well as the defendant’s examining physician, Dr. Landi. During
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`deliberations the jury also asked to review the plaintiff‘s primary care records created in the days
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`immediately after the accident — a key timefrarne in this case because part of the defendant’s
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`argument against damages was that the lower back injury that became the primary focus of
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`plaintiffs allegations was not a body part she complained of immediately after the accident.
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`The jury deliberations lasted. over the course of two days, and the verdict was ultimately
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`unanimous. As stated earlier, it is within the province of the jury to determine issues of credibility,
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`and great deference should be given to the jury because it has the opportunity to see and hear the
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`witnesses (see Saurer v. Calabretla, 103 AD3d 1220, 959 NYSZd 579 [4“1 Dept 2013]; Kim v. New
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`FILED: ERIE COUNTY CLERK 04/25/2018 03:27 PM
`FILED: ERIE COUNTY CLERK 04E2018 03:27 PM
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`NYSCEF DOC. NO. 124
`NYSCEF DOC. NO. 124
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`INDEX NO. 803977/2016
`INDEX NO- 803977/2016
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`R+.C+.IV+.D \tYSCEF: 04/25/2018
`RECEIVED NYSCEF: 04/25/2018
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`York City Transit Authority, 87 AD3d 531. 928 NYS2d 315 [2d Dept 201 1]). The credibility of
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`the witnesses, the truthfulness and accuracy ofthe testimony. whether contradicted or not, and the
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`significance of weaknesses and discrepancies are all issues for the trier of the facts (Somkin v.
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`Food Fair Stores. Inc, 51 Adld 592 [2d Dept 1976]).
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`Conflicting medical expert testimony raises credibility issues for thejury to detemtine. and
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`that is exactly what occurred in the trial of this matter (see Campr) v. Nearly, 52 AD3d 1194 [4”‘
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`Dept 2008]).
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`In light of this clear standard, and upon review of the extensive proof presented to
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`the jury for its consideration, the plaintiff has failed to demonstrate the jury verdict was against
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`the weight of the evidence.
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`As such. the plaintiff has failed to raise an issue on this motion that would obligate this
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`Court to set aside the jury verdict, increase the jury‘s award, andfor order a new trial.
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`Accordingly, it is hereby:
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`ORDERED, that the plaintiff‘s motion is denied in its entirety, and it is further
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`ORDERED, that this shall constitute the Decision and Order of the Court. The delivery of
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`a copy of this Decision and Order by this Court shall not const'
`./
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`te notice of entry.
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`DATED: Buffalo, New York
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`,
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`April ff, 2018
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`HON. PAUL B.
`Justice of the Supreme Court
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