FILED: NEW YORK COUNTY CLERK 02/08/ :01 AM INDEX NO /2015 NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 02/08/2018

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X VALDEMIR SANTANA and NIDIA SANTANA, Plaintiff(s), Index No: /15 -against- AFFIDAVIT OF DOUGLAS W. PEDEN BANK OF AMERICA CORPORATION and BANK OF AMERICA N.A., X Defendant(s). STATE OF NEW YORK ) ) ss.: COUNTY OF NASSAU ) Douglas W. Peden, R.A., NCARB, being duly sworn, deposes and says: 1. I am a registered architect in the State of New York. I am a member of the National Council of Architectural Registration Boards (NCARB). I have a Bachelor of Science degree in Architecture from New York Institute of Technology (1980). I am currently employed by Robson Forensic,Inc.,and have been so employed since My responsibilities include, but are not limited to, providing technical investigations, analysis and reports concerning construction materials failures; code compliance issues; construction claims; and professional liability. Prior to being employed by Robson Forensic, Inc., I was employed by Parsons Brinkerhoff/Aman and Whitney as an architect/inspector and was involved with projects for the New York City School Construction Authority. I have been employed by architectural and engineering firms since 1980.

2 3. On March 13, 2015, Valdemir Santana was preparing to exit the Bank of America Building at 5310 Sunrise Highway, Massapequa, New York. As he was walking toward the glass exit door at the front of the building, he mistakenly walked into the sidelight glass. The sidelight glass broke and Mr. Santana was injured. 4. Robson Forensic, Inc., was retained by the plaintiffs' attorneys to evaluate whether conditions in the bank building were dangerous in a manner that caused Mr. Santana to be injured. As part of my assessment, I reviewed the affirmation in support of Andre N. Poulis, Esq., the affirmation in support of Robert T. Fuchs and the expert witness disclosure of Paul J. Agelides. I reviewed a surveillance video of the incident and three photographs of the scene of the injury. I also reviewed Department of Buildings File Documents for a 2011 Building Alteration Sunrise Highway is a two-story, single occupancy commercial bank building near the southwest corner of Sunrise Highway and Unqua Road. The Bank of America branch building was constructed in 1962 and the north side fronts on Sunrise Highway, adjacent to an auto tire store at the corner of Unqua Road. There is a bank parking lot on the south side of the building and a bank drive through on the west side that exits onto Sunrise Highway. 6. The bank has two entrances. One entrance is on the northwest corner and another is on the southwest corner of the building. The north side entrance has a vestibule with an exterior single glass door and sidelight, an interior glass door and sidelight and a metal and glass partition on the side interior to the bank. 7. The north vestibule interior door has a metal frame with a pull handle on the vestibule side and a push bar across the middle of the door on the bank side. The full-height 2

3 sidelight has a metal frame. The glass has white round (approximately 1 to 2 inch diameter) dots across the glass at approximately 4 inches on center and approximately 5 feet above the floor. 8. On the date of his incident, Mr. Santana, who is a truck driver, parked his truck on the south side of Sunrise Highway and entered the bank through the north side entrance. When Mr. Santana completed his banking business, he prepared to exit through the same north side entrance doors. 9. As Mr. Santana approached the interior vestibule door, he mistakenly walked into the full- height glass sidelight. The non-safety glass shattered and Mr. Santana was injured by the shards of glass. 10. The building was constructed under the 1956 edition of the New York State Building Code. That code is silent about the type of glass used in glass doors, sidelights and walls. 11. The bank was, or should have been, aware for many years prior to Mr. Santana's injury that standards, rules and specifications for safety glass have been required in new buildings. Because of its ADA upgrade project in 2011, the bank should have known, that the glass in the north vestibule was non-safety glass. The bank should have replaced the glass with safety glass or should have protected the glass by placing horizontal metal bars or an object in front of the glass as a guard. 12. New York State recognized that large pieces of glass were becoming more common in building design and further recognized that large pieces of non-safety glass were hazardous to the general public. 3 i

4 13. In 1967, New York State issued under Title 12, Department of Labor Rules, Part 47, regarding transparent glass doors in mercantile establishments and in public and commercial buildings and structures. The rules were applicable to all buildings beginning January, Part 47.2 Findings of Facts, states: The board finds that the use of transparent glass doors and fixed adjacent transparent glass sidelights in construction and remodeling of buildings or other structures has increased to such an extent that incidental injuries and deaths have occurred because of persons walking or falling into such transparent glass doors and fixed adjacent transparent glass sidelights, and that regulations in regard to marking and construction thereof are required for the protection of persons frequenting any area, building or structure where such transparent glass doors and sidelights are located. 15. Part 47.3 Purpose and Intent of Part (rule), states: It is the purpose and intent of this Part (rule) to require reasonable and proper marking and construction of transparent glass doors and fixed adjacent transparent glass sidelights to prevent personal injuries to all persons frequenting any area, building or structure where such transparent glass doors and sidelights are located. 16. Part 47.4 Application, states: This Part (rule) applies throughout the State of New York to gl transparent glass doors and fixed adjacent transparent glass sidelights in mercantile establishments and in public and commercial buildings and structures [emphasis added]. 17. Part 47.6 Responsibility, states: The owner or affected tenant or both of any building used in a mercantile establishment or a public or commercial building or structure shall be responsible for compliance with the provisions of this Part (rule). 18. Part 47.8 Marking Locations, states: Transparent glass doors and adjacent transparent glass sidelights shall be marked in two areas on the glass surface thereof. One area shall 4

5 be located at least 30, but not more than 36 inches and the other at least 60, but not more than 66 inches above the ground, floor or equivalent surface below the door or sidelight. 19. A surveillance camera captured a video image of the interior vestibule door prior to Mr. Santana preparing to exit the bank. A single line of small white dots across the sidelight are visible in this image. The marking violates the Part 47 rule. The rule, according to 47.9, requires the marking to be at least 4 inches in diameter or at least 12 inches in horizontal length if the marking is less than 4 inches. The small dots on the surveillance image are not 4 inches and are not 12 inches in continuous horizontal length. Further, no markings are visible between 30 and 36 inches above the floor. 20. The bank should have known that the incident sidelight was not constructed with safety glass. An ADA upgrade alteration was performed in 2011 where the metal and glass components of the south vestibule were replaced. A requirement of this alteration would be to install safety glass. It should have installed safety glass in all of the glass doors and sidelights. Alternatively, the bank should have installed larger markings on the glass as required by New York State regulations since Within the bounds of reasonable architectural and technical certainty, and subject to change if additional information becomes available, it is my professional opinion that: a. The unprotected non-safety glass was known to be hazardous when persons accidently contact the glass, and was dangerous in a manner that caused Mr. Santana's injuries; b. The bank was required to comply with New York State's Part 47 ruling; c. The marking on the glass sidelight where Mr. Santana was injured violated the Part 47 ruling; 5

6 d. Because of the Part 47 ruling, the bank should have been aware that the vestibule glass was dangerous and should have made an effort to properly mark the glass, protect the glass or replace the glass with safety glass; e. The bank's failure to properly mark the glass, protect the glass or replace the glass with safety glass created the dangerous condition that caused Mr. Santana to be injured; f. The bank violated the standard of care and failed to protect persons from breaking the non-safety glass and being injured by broken glass.,/ Dougl ( W. Peden, R.A. Sworn to before me on this 7 day of February, 2018 Notary Public o0 NANCY P. BIAGGI Notary Public, State of New York Registration #01B Qualified In Nassau C unty Commission Expires / f, ýf 6