Opinion

Munoz v. Isabella Geriatric Ctr. Inc.

  • 2025 NY Slip Op 31334(U)
Court
New York Supreme Court, New York County
Filed
Apr 17, 2025
Status
Unpublished
Author
Margaret A. Chan
Cited by
0 cases
Authority
More cited than 34.9%

The opinion

Munoz v Isabella Geriatric Ctr. Inc.

2025 NY Slip Op 31334(U)

April 17, 2025

Supreme Court, New York County

Docket Number: Index No. 152490/2017

Judge: Margaret A. Chan

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.

INDEX NO. 152490/2017

NYSCEF DOC. NO. 228 RECEIVED NYSCEF: 04/17/2025

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK: PART 49M

------------------------------- ---------------------X

JOSEPH MUNOZ, INDEX NO. 152490/2017

Plaintiff, 08/07/2024,

MOTION DATE 09/24/2024

- V -

!SABELLA GERIATRIC CENTER INC.,JANET TORRES MOTION SEQ. NO. 008 009

Defendant.

DECISION+ ORDER ON

MOTION

--------------------------------------------- --X

HON. MARGARET A CHAN:

The following e-filed documents, listed by NYSCEF document number (Motion 008) 206, 207, 208, 209,

210,213,214,221,222,224

were read on this motion to/for REARGUMENT/RECONSIDERATION

The following e-filed documents, listed by NYSCEF document number (Motion 009) 215,216,217,218,

219,220,223,225

were read on this motion to/for VACATE - DECISION/ORDER/JUDGMENT/AWARD

Plaintiff Joseph Munoz, as Executor of the Estate of Maria Campoverde,

brings this personal injury action against defendants Isabella Geriatric Center, Inc.

(Isabella Center), a nursing home in which Campoverde was a patient, and

defendant Janet Torres, an employee at Isabella Center at the relevant times. In

two separate prior motions, defendants had moved for summary judgment/partial

summary judgment. Torres' motion was granted in its entirety, and the complaint

was dismissed as against her. Partial summary judgment was granted to Isabella

Center's motion. Plaintiff failed to timely oppose the motions despite the several

adjournments afforded him, and defendants' request to reject his untimely

opposition was granted. Isabella Center now moves for reargument/clarification of

the prior order (MS 008) and plaintiff moves to vacate the prior order, and upon

consideration of plaintiffs opposition paper to defendants' respective summary

judgment motions, deny the defendants' motions (MS 009).

As explained below, Isabella Center's motion for reargument is granted only

to the extent that on the SAC is reviewed; and upon reargument, its motion for

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Motion No. 008 009

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summary judgment on causes of action not previously considered and decided by

this court's Decision and Order dated June 18, 2024, is denied. And plaintiffs

motion to vacate the prior order is denied for failure to show a meritorious claim on

the intentional tort claim against Torres and the attendant negligence claims

against Isabelle Center.

MS 008 -Motion for Reargument/Clarification

The facts of this action are detailed in the prior order (see MS 008 - NYSCEF

# 209, Decision and Order of this court dated June 18, 2024). Briefly, the relevant

facts to this motion to reargU:e (MS 008) are as follows:

Maria Campoverde, who was 88 years of age 1 when she was admitted to

Isabella Center on November 20, 2014, resided there under Isabella Center's care

until June 12, 2017. This action arose from the following allegation. Plaintiff alleges

that defendant Torres, who worked as a housekeeper, nurse, or nurse's aide at

Isabella Center, pushed her from behind and caused her to fall on April 10, 2016,

which caused a fracture to her femur. Thus, plaintiff files suit against Torres for

this alleged intentional tort, and against Isabella Center for negligence among other

claims.

Immediately prior to her admission to Isabella Center, Campoverde was at

New York-Presbytarian Hospital (the Hospital), where she was diagnosed with

dementia, moderately impaired cognition, type II diabetes, cataracts, chronic joint

pain, frequent falls, chronic urinary tract infections (UTI), and dehydration, among

other illnesses (NYSCEF # 118 - Hospital's medical records). The Hospital also

assessed Campoverde as a "fall risk" with of score of 14 meaning "high risk for falls

due to inability to get out of bed or chair without assistance ...." and had a history

of falls (NYSCEF # 118- Hospital records at 53·54). Per the history obtained by the

Hospital from Campoverde's daughter, who was Campoverde's primary caregiver,

Campoverde was "severely cognitively impaired (would know her name, but not

place or time, and may or may not identify family members) requiring 24hr

supervision by family at home ... ;" (Hospital Records at 66).

On April 10, 2016, while at Isabella Center, Campoverde fell while going to

the bathroom. As a result, she sustained a fracture of the right distal femur.

Plaintiff alleges that Torres pushed or bumped Campoverde causing her to fall and

blames Isabella Center for failing to prevent Torres from doing so.

1

While plaintiff states that Campoverde was 86 years old, all her medical records, including Isabella Center's, state

that she was 88 years old.

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Motion No. 008 009

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The only record that reflected Campoverde's claim about Torres pushing her

and causing her to fall appears in the Hospital's Orthopedic Surgery Consult Note

(Consult Note), which stated that "[Campoverde] normally uses a wheelchair for

commute. [Campoverde] suffered a mechanical fall 2 days ago when she was using a

RW to go to the bathroom without an aide when someone pushed her from behind.

She landed directly onto her knee on the toilet" (NYSCEF # 118 at 238). The

Consult Note also recorded that "no family member or healthcare provider could

reliably relay the course of event for the patient at the time of interview" and noted

that the history was obtained from electronic chart, records, the patient's daughter/

granddaughter and the patient" (NYSCEF # 118 at 238).

Both Isabella Center and the Police Department separately conducted an

investigation into Campoverde's claim that Torres pushed her. Both investigations

found no violations or wrongdoing (NYSCEF # 143 - NYSDOH Investigation

Records, bates stamped pages 65-66; NYSCEF # 145 - Police Report). Dr.

Alcantara, a psychiatrist, was interviewed as part of the investigation. His

psychiatric notes reported that the family believed Campoverde's allegations and

denied Campoverde's history of dementia claiming that her memory is fine despite

their previous accounts to him .. The family denied Campoverde's history of dementia

to the police. But Dr. Alcantara assessed Campoverde with a long-standing

unremitting and worsening history of dementia, a history of behavioral

disturbances, and depression. Dr. Alcantara testified that after the investigation,

Campoverde's son, Ariosto Mendieta, who disagreed with and was upset about Dr.

Alcantara's assessment on Campoverde's severe dementia, chased him down to not

write down that assessment (NYSCEF # 152, Alcantara tr at 45·47).

Balanced with the Consult Note reflecting that the record of Campoverde's

fall was not made by anyone who could "reliably relay" the cause of the accident,

together with the investigation reports, along with Torres' evidence showing that

she was indeed a housekeeper with no interaction with Campoverde as shown by

Isabella Center's records and a witness (a nurse aiding Campoverde after the fall

called out to Torres, who was down the hall to get another nurse) who observed both

Campoverde and Torres around the time of the April 10, 2016 incident of

Campoverde's fall. Torres' motion for summary judgment dismissing the complaint

as against her was warranted. And because Isabella Center also established

through records of its hiring practices and Torres' employment, which showed no

complaints (except for occasional tardiness) (see NYSCEF # 146), Isabella Center

was also granted summary judgment on the negligent supervision, hiring, and

retention claim.

On October 25, 2016, Campoverde fell again in Isabella Center, which

exacerbated the fracture to her right distal femur. 2 Plaintiff claims that

2

Torres was no implicated in this incident.

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Motion No. O!JB 009 ·

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Campoverde's multiple falls were due to defendants' negligence, lack of skill and

reasonable care.

Campoverde was finally taken off the non-weight bearing status on

No.vember. 9, 2016, and was given restorative physical therapy. And by January 20,

2017, her right femur fracture was healed without surgery (NYSCEF # 104 ,r,r 39,

41). But despite the physical and occupational therapy, her functional status

declined due to her progressive dementia (id ,r 42). She started to intermittently

refuse to eat, thus, she was given nutritional supplements, snacks, and IV fluids.

On May 7, 2017, Campoverde's family agreed to palliative care with Do· Not·

Intubate and Do-Not-Resuscitate Orders. Campoverde passed away on June 12,

2017, with pneumonia due to or as a consequence of Alzheimer's disease as a cause

of death, and diabetes as a contributing factor (id ,r,r 47·49).

Discussion

The prior order addressed MS 006, defendant Torres' motion for summary

judgment "dismissing plaintiffs Complaint in its entirety as to her" (MS 006 -

NYSCEF # 102, Notice of Motion). As to MS 007, defendant Isabella Center moved

for

"(a) partial Summary Judgment ... dismissing the causes of action for

Intentional Tort, Negligent Supervision, Hiring, and Retention, and

Wrongful Death, along with all claims related to the incident of April

10, 2016, and all claims for punitive damages and attorney's fees

associated with the action;

(b) alternatively, in the event that Summary Judgment is not granted

in its entirety with respect to either of the above-mentioned

submissions, granting partial summary judgment with respect to

either of the above-mentioned submissions, granting partial summary

judgment, dismissing some or all of them ...."

(MS 007 - NYSCEF # 105, Notice of Motion; NYSCEF # 106, Atty's aff at 1).

Leave to reargue "shall be based upon matters of fact or law allegedly

overlooked by the court in determining the prior motion but shall not include any

matters of fact not offered on the prior motion" (CPLR 2221 [d]).

In Isabella Center's motion for summary judgment, the initial Verified

Complaint was submitted in that motion sequence (see MS 007 - NYSCEF # 190).

Notably, there is no cause of action for wrongful death and punitive damages in the

initial Verified Complaint; rather these causes of action were alleged in the Second

Amended Complaint (SAC).

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Motion No. 008 009

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The SAC was not offered in MS 007, the prior motion. Neither was Isabella

Center's expert affirmation by Dr. Barbara Tommasulo.

Upon review on this motion to reargue, the NYSCEF record shows that the

movant Isabella Center did not submit any complaint for the motion. It was

plaintiff who supplied the Verified Complaint in MS 008 in his untimely submission

opposing the motion.

In any event, Isabella Center seeks on re argument, dismissal of "all claims

regarding the April 10, 2016 incident, which are included in plaintiffs First,

Second, and Third Causes of Action; the Fourth Cause of Action for Negligent

Supervision, Hiring, and Retention; the Fifth Cause of Action for Wrongful Death;

and all claims for punitive damages and attorney's fees" (NYSCEF # 207, Isabella

Center Aff in Support, ,r 41).

But, the prior order granted "Isabella Center's motion for partial summary

judgment dismissing the Third and Fourth Causes of Action, and the wrongful

death claim and punitive damages as related to the April 16, 2016 incident of

Campoverde's fall ..." (prior order at 6). The Third Cause of Action in the Verified

Complaint is for "personal injuries and intentional tort against defendants (MS 007

- NYSCEF 190 at 17 [all caps omitted]). The Fourth Cause of Action in the Verified

Complaint is for "negligent supervision, hiring and retention against defendants"

(id at 19 [all caps omitted]). To clarify, the Third Cause of Action related to the

April 10, 2016 incident of Campoverde's fall. Thus, these claims were dismissed in

the prior order. The same causes of action in the SAC does not alter the outcome on

these claims in its Third Cause of Action.

The prior order also dismissed the Fourth Cause of Action for negligent

supervision, hiring and retentio_n. This dismissal also does not alter the outcome for

the same claims in SAC.

The First Cause of Action in the Verified Complaint is for negligence (MS 007

- NYSCEF 190 at 13). The claim . is broad touching on not. onlyjust the allegations

.

related to the April 16, 2016 incident of Campoverde's fall but also on "failing to

develop, implement and train staff on proper and necessary facility policies and

procedures; in failing to prevent injury and neglect of plaintiff; and in failing to

follow statutory laws, rules, and regulations thereby resulting in negligence per se .

. . ." (id at 15). Isabella Center's prior motion brief did not speak to this latter part

of the claim; the prior order dismissed "all claims related to the incident of the April

16, 2016 incident of Campoverde's fall" (see prior order at 6). The Verified

Complaint also did not speak to the additional allegation in First Cause of Action in

the SAC alleging negligence related to Campoverde's diabetes and other illnesses.

While Isabella Center, in its motion to reargue, claims that Dr. Tommasulo

addressed those latter allegation in her expert affirmation, Dr. Tommasulo's

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Motion No. 008 009

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affirmation was not submitted in motion sequence 007, and thus was not before the

court when MS 007 was addressed.

As to the second cause of action -Violation of Public Health Law § 2801 ·d - in

the Verified Complaint and in the Amended Second Complaint, Isabella Center did

not address this claim in the prior motion.

Further, Isabella Center submitted an affirmation in reply clarifying that

"Isabella is not seeking dismissal of all claims. Rather Isabella is seeking an order

dismissing claims sounding in Intentional Tort, in other words, all claims

concerning the April 10, 2015 incident, which are outlined in Plaintiffs First and

Third Causes of Action; the Fourth Cause of Action for Negligent Supervision,

Hiring, and Retention ...." (NYSCEF # 196 - Reply aft). Indeed, even though

Isabella Center's expert's affirmation was not reviewed in the prior order, Dr.

Tommasullo, stated "[i]n conclusion, it is my opinion, that this matter should be

dismissed as to JANET TORRES, and partially dismissed as to Isabella .... " (MS

008- NYSCEF # 200, Tommasulo aff at 21 [emphasis supplied]).

In sum, Isabella Center was granted its motion for, as stated in its notice of

motion and brief: "(a) partial Summary Judgment ... dismissing the causes of

action for Intentional Tort, Negligent Supervision, Hiring, and Retention, and

Wrongful Death, along with all claims related to the incident of April 10, 2016[.]"

The punitive damages and attorney's fees were not granted in the prior order as

punitive damages were not in the complaint submitted with the motion, and a

request for attorney's fees is premature for a partial summary judgment.

As a result, Isabella Center's motion to reargue is granted only to the extent

that that the SAC is reviewed in place of the Verified Complaint regarding Isabella

Center's motion for summary judgment. What remains of Isabella Center's prior

motion - based on the SAC - are allegations of negligence that do not concern the

intentional tort, negligent supervision, hiring, and retention, and wrongful death as

related to the April 10, 2016.incident; the second cause of action for violation of

Public Health Law § 2801 · D; and the fifth cause of action for wrongful death (see

NYSCEF # 46 2nd AC at 20·21).

MS 009-Plaintiff's Motion to Vacate Prior Order

Plaintiff asserts that the primary reason for the late filing was the delay in

receiving the expert affirmation from Dr. Starer, an event "not entirely within

plaintiffs control" (id ,r,r 10·13). As proof of plaintiffs attempts to promptly obtain

the affirmation-which was filed with the opposition on February 16, 2024-

plaintiff presents two emails from plaintiffs counsel to Dr. Starer on January 24

and February 8, 2024; and Dr. Starer's response email with the expert affirmation

attached on February 15, 2024 (NYSCEF #s 218, 219 - Emails between Pltfs

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Counsel and Dr. Starer). Plaintiff contends that waiting for essential expert

materials constitutes a reasonable excuse (NYSCEF # 216 ,r 14). Further, plaintiff

maintains that the submitted expert affidavit from a board ·certified physician

demonstrates a potentially meritorious opposition to the defendants' motion for

summary judgment (id ,r 20). Plaintiff emphasizes the judicial preference for

resolving cases on their merits and assert the absence of willful delay or prejudice to

the defendants (id. ,r,r 23·25).

Both defendants oppose plaintiffs motion to vacate arguing that plaintiff has

demonstrated neither a meritorious opposition nor a reasonable excuse for default

(NYSCEF # 223, Defts' Opp Aff, ,r 2). Defendants contend that plaintiffs claim rests

on unsubstantiated "speculation," and the expert's qualified opinion is "insufficient"

to create a triable issue of fact (id ,r 4). As to the excuse for the late filing,

defendants highlight that plaintiff receiv~d four adjournments, with a final

opposition deadline of January 19, 2024, yet the opposition was filed nearly a month

later without leave of court (id ,r 5). And the emails with the expert that plaintiff

provided were dated after the January 19, 2024 final deadline (id. ,r 6). Defendants

further argue that plaintiff has failed to adequately explain their failure to file a

timely opposition or provide a credible account of any "law office failure" (id. ,r 7).

In reply, plaintiff reiterates that the relevant standard for vacating the order

at this stage is the existence of a potentially meritorious opposition, which plaintiff

believes is established by the physician's detailed affirmation (NYSCEF # 225, Pltfs

Reply Aff, ,r 3). Plaintiff maintains that waiting for an expert affirmation is a valid

and routinely accepted reasonable excuse for a delay and the emails demonstrate

the timing of the expert's submission and refute any suggestion of a dilatory tactic

(id ,r,r 4·6). Therefore, plaintiffs counsel argues that penalizing plaintiff for the

expert's delay would be unjust, and the defendants do not demonstrate how they

would be prejudiced (id ,r 7).

Discussion

To prevail on a motion to vacate a prior order made on plaintiffs failure to

timely oppose a motion, the plaintiff must show a reasonable excuse for the default

and a meritorious opposition to the motion (Hogan v Schwartz, 119 AD3d 650, 651

[2d Dept 2014]; see DeFazio v Berley Realty Corp., 259 AD2d 266, 266 [1st Dept

1999]).

As recounted in the Prior Order, plaintiffs opposition to the motions for

summary judgment was initially due on November 2, 2023 but was ultimately

submitted on February 16, 2024, without leave of court and after five adjournments

(see NYSCEF # 201 at 4, citing NYSCEF #s 102 & 105). Plaintiff offers two reasons

for the delay: waiting for their expert's affirmation, which constitutes law office

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failure (id); and the attorney's wedding abroad from January 15 to 29, 2024 (MS

009 - NYSCEF # 216, pltfs aff ,r,r 10, 12, 15·19).

Regarding the expert, plaintiff submits two emails requesting the

affirmation, but both emails were dated after the final deadline (NYSCEF #s 218,

219). This limited documentation fails to provide a sufficiently detailed ac9qunt of

the efforts made to secure the expert affirmation in a timely manner, particularly

given the multiple extensions already granted (see Cornwall Warehousing, Inc. v

Lerner, 171 AD3d 540, [1st Dept 2019] [holding that where law office's failure is the

excuse, it must be explained by the attorney in detail]). And as to the attorney's

wedding abroad, given that counsel should have known in advance the date of his

own wedding, he had ample opportunity to alert the court and opposing counsel

when the deadline was proposed. Instead, he agreed and even stipulatedto a date

in the middle of his absence. But, perhaps he did not know of his wedding date then.

Whether the reasons by plaintiffs counsel for their untimely submission of

opposition constitutes good cause or acceptable law office error is debatable. But,

the one thing that out~balances this debate is the prejudice to the plaintiff. Thus,

the focus turns to plaintiffs argument on the merits of his opposition.

While plaintiff claims that his "expert affirmation provides a potentially

meritorious opposition to defendant's summary judgment motion" (MS 009 -

NYSCEF # 216, pltfs atty's aff ,r20), it does not.

As discussed in the prior order, the court briefly reviewed Dr. Starer's

affirmation (MS 007 - NYSCEF # 189) and found it contained "errors and

misstatements such that is doubtful that consideration of the opposition papers

would be helpful to plaintiff' (MS 007 - NYSCEF # 201, prior order at 5). The

errors in the affirmation that were previously found in the prior order are

presented here:

(i) "plaintiffs reference to Campoverde by a completely different name" 3

(MS 007 .- NYSCEF # 187, pltfs aff in opp ,r 2);·

(ii) "the reduction of Campoverde's age by both plaintiffs counsel and

medical expert despite the availability of her age throughout the

medical records from both the hospital and Isabella Center -

Campoverde, born in 1926, was 88 years old, not 86 as plaintiff asserts,

when she was admitted to Isabella Center on November 20, 2014"

(NYSCEF # 181, Pltfs Counter Statement of Facts ,r I; NYSCEF # 182,

Expert Aff ,r 8);

3

The different name along with different dates refer to: "personal injuries sustained by Marjorie

Lazar from January 2014 through and up until her death on December 2015"; Campoverde

sustained her injury on April 10, 2016; and she died on June 12, 2017.

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(iii)' "the medical expert's significant misstatement - that after the

investigation into the allegation involving Torres, the Director of

Nursing, Miriam Paul, 'concluded that abuse occurred' (id ,r 51 citing

NYSCEF 143, Exhibit M, Investigative Report at 68, 69) - in fact, the

finding was 'No evidence of abuse/neglect' (NYSCEF # 143 at 68) and

'Ms. Paul did notfind any abuse by anyone .. .' (id at 69 [emphasis

supplied]); and

(iv) the medical expert's legal conclusions that punitive damages are

warranted in this case (NYSCEF # 182 ,r 91)."

(NYSCEF # 201, prior order at 5). In sum, Dr. Starer's report was accorded little

weight. Given these and other deficiencies, plaintiff has not sufficiently

demonstrated a potentiaily meritorious claim regarding Campoverde's April 10,

2016 incident of her fall.

However, while the complaint against defendant Torres is dismissed in its

entirety (MS 006), the same cannot be said about defendant Isabella Center (MS

007). The remaining claims against Isabella Center are the negligence action in the

first cause of action - except for the allegations regarding the April 10, 2016

incident; the second cause of action for violation of Public Laws § 2801 ·d, and the

fifth cause of action for wrongful death. These claims remain because the prior

order did not consider these claims because the crucial documents were not filed in

motion sequence 007 and/or there were no arguments regarding them.

Conciusion

For the foregoing reasons, it is hereby

ORDERED that defendant Isabella Geriatric Center Inc's motion pursuant to

CPLR 2221(d) to reargue or clarify the court's Prior Decision and Order dated June

18, 2024 (MS 008) is granted, and upon reargument, its motion for summary

judgment on the remaining causes of action (the second cause of action for violation

of Public Health Law§ 2801 ·D; and the fifth cause of action for wrongful death) not

previously considered by this court's Order dated June 18, 2024) is denied; and it is

further

ORDERED that the plaintiff Joseph Munoz's motion pursuant to CPLR §

5015(a) to vacate this court's Decision and Order dated June 18, 2024 (MS009) is

denied as to those cause of action that were addressed on the June 18, 2024 action

(the intentional tort claim against defendant Torres and the negligent hiring,

retention, or any claims related to the April 10, 2016 incident of the decedent's fall);

and it is further

ORDERED that defendant Isabella Geriatric Center Inc. shall serve a copy of

this Decision and Order with notice of entry within 20 days on the Clerk of the

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Court in accordance with the procedures set forth in the Protocol on Courthouse and

County Clerk Procedures for Electronically Filed Cases (accessible at the "E· Filing"

page and on the court's website).

This constitutes the Decision and Order of the court.

4/17/2025

DATE MARGARET A. CHAN, J.S.c:'

~

CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED 0 DENIED GRANTED IN PART □ OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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Motion No. 008 009

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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