Articles Posted in New York City

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On July 25, 1967, a sixteen year old girl was walking on the sidewalk near 315 Lenox Avenue, , New York City. A truck was travelling on Lenox Avenue, lost control and struck a parked car. It then jumped the curb and drove onto the sidewalk where it hit the girl causing her to be pushed under the porch of a house. This truck accidentcaused her serious injury. Her mother filed a lawsuit against the driver of the truck for loss of her daughter’s services and medical and hospital bills.

The Queens driver of the truck denied all allegations. He denied that it was his truck. He denied that he was driving the truck. He denied that he lived in New York. His allegations of complete noninvolvement were too false as to cause the court to comment on the impropriety of his denials. There is no reason to believe that he is not responsible for the accident.

When the driver of the truck commented on the truck accident, he advised that he was heading east on Lenox Avenue when his truck struck a parked vehicle, went out of control, and jumped the curb. He advised that two girls walking on the sidewalk tried to run up steps of a porch and his truck hit the girls and shoved the girls and the steps under the porch.

The court found that as a matter of law the girl and her friend were both free from any contributory negligence in the case of this accident. The court further comments that the only conclusions to be drawn from the truck driver’s own admissions was that “he did not maintain a proper lookout for vehicles parked on Lenox Avenue, did not have his pick-up truck under proper control and that after having struck the parked vehicle he fully lost control of the pick-up truck which then jumped the curb, crossed the sidewalk, and struck the steps of the porch and (the girls). As a matter of law it is determined (the truck driver) was negligent and his negligence was the proximate cause of the injury to (the girls.)(288 N.Y.S.2d761.

Therefore, the court rules that there are no triable issues of fact and that liability for this accident was clearly established as resting solely with the driver of the truck. The Court finds that the driver of the truck is liable for the accident and that the victims are entitled to recover whatever damages that a court trial may asses.
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A 30-year old woman joined the New York Police Department in 1990, and served continuously until her retirement in 2010. In 2007, the policewoman, while assigned to the NYPD’s peddler unit, was unloading confiscated property from a truckto the NYPD’s property clerk in Queens. While lifting a box of property, the policewoman stepped back on to a shovel, which caused her to fall. The policewoman twisted her right knee and was admitted to the emergency room at a nearby hospital. The NYC hospital staff diagnosed her with a sprained knee. The knee was diagnosed to be permanently disabled, which restricted her desk duty.

The policewoman applied to the Police Pension Fund for Accident Disability Retirement but this was denied by a tie vote. Her counsel asserted that the only explanation for the shovel on the floor of the truck was someone else’s negligence; and that, accordingly, there was no reason for the policewoman to expect or foresee that the shovel would be left in a “dangerous location.”

The court held that in a challenge of a denial of disability payments, the PPF’s determination will be sustained unless it is “arbitrary, capricious, an abuse of discretion or contrary to law.” The court said it cannot “weigh the evidence, choose between conflicting proof, or substitute its assessment of the evidence or witness credibility for that of the administrative factfinder.”

ADR benefits are available when it is showed that the applicant is physically or mentally incapacitated from the performance of duty as a natural and proximate result of an “accidental injury” received in the line of duty, and that such disability was not the result of willful negligence on the part of the applicant. A denial of ADR due to a tie vote cannot be set aside “unless it can be determined as a matter of law on the record that the disability was the natural and proximate result of a service-related accident.” On the other hand, an injury caused by a trip where tripping is a foreseeable risk of the work being performed does not entitle the applicant to ADR.

In this case, the court held that it was neither irrational nor an error of law for the PPF to deny ADR on the grounds that the policewoman’s fall was not an accident. The policewoman was unloading merchandise from a truck that, according to the record, contains boxes and other objects, like shovels. Inherent in that work, then, is the stepping over or around objects. The risk of tripping while performing this work is foreseeable; therefore, the fall cannot be considered sudden, unexpected, and out of ordinary, and it cannot be said that the policewoman is entitled to ADR as a matter of law, the court held.
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On August 6, 2005 an employee of an ice company was driving a rental truck on Rout 25A at the intersection of Warner Road in Huntington, Long Island, New York at about ten in the morning when he ran into the rear end of another vehicle that was stopped at the traffic light.

In this case, the owner of the rental truck company is asking for a summary judgment relieving it from liability due to the coverage under the Graves Amendment that provides an owner of a vehicle that “is engaged in the trade or business of renting or leasing motor vehicles shall not be liable under any State law for damages sustained in a motor vehicle accident provided there is no negligence or criminal wrongdoing on the part of the owner.” (see, 49 USC § 30106[a])

The driver of the rental truck opposes this motion since he claims that when he attempted to stop the truck, he discovered that the truck’s brakes were faulty. He claims that his negligence to maintain the truck in a safe fashion removes any protections that the Graves Amendment would otherwise have provided to the truck rental company.

As far as the liability that exists for the driver of the truck. A prima facie case of liability is automatic when an operator of a moving vehicle strikes the rear of a stopped or stopping vehicle. In light of the facts at hand it is clear that the injured party has established its case against the driver of the truck. However, it is now triable issues of fact that the driver of the truck alleges the brakes were insufficient to stop the truck and that he is not responsible for the accident because of the brake failure. The driver of the truck is compelled to bring evidence to prove that the brakes were not safe and that the rental truck owner had knowledge or should have had knowledge that the brakes were not sufficient to stop the truck safely. Additionally, the injured driver stated that he has been involved in several accidents which have caused previous injury to his back. The insurance company for the driver of the truck has filed a motion to have the driver examined and to have information presented to determine which of his injuries are old and which ones are new.

The Justices order that there is enough question of fact for no summary judgment to be made and the case will go to trial.
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On July 2, 1998, the Supreme Court Appellate Division First Department of New York was called upon to decide the issues in a case possibly involving a commercial truck accident. On the date in question, an employee of a property management company was working in a 40 story building that was under construction. It was his responsibility to prepare the stock room and make sure that the tools required to operate the building were at hand. One of his duties was to read the water meters in the building. While he was walking along a sidewalk near the loading dock where the construction deliveries were made, a net that is suspended over this walkway to catch falling debris from the upper stories fell on him causing substantial physical injury.

There are numerous questions of fact as it regards the incidents in this case. Some of the witnesses claim that the accident was caused when a truck delivering glass to the site was backing along the side near where the net attaches to the building. They contend that a handle sticking up from the top of the truck snagged the netting and pulled the net down. Other witnesses state that the company that was hired to keep the debris removed from the net so that the net would not get weighted down failed in their duty to keep the net clean and the weight from debris piled up in the net caused the net to fall. Another theory is that the net fell frequently and was faulty.

The court was concerned with several of these issues. In particular they felt that the fact that the crank handles on the truck were enmeshed in the net following the accident did not demonstrate that the handles had snagged the net. They stated that it was not surprising that the crank handles should be enmeshed in a net that had fallen on the truck covering it.

The injured Manhattan property manager had filed action based on Labor Law § 240 (1) and Labor Law § 241 (6). The Court found that since Labor Law §240 (1) dealt with injuries to construction employees only, and that since the injured party in this case, was a property manager and not a construction worker that Labor Law §240 did not apply in this case. However Labor Law § 241 (6) would.

As it regards Labor Law § 240 (1) was “not designed to encompass the type of routine maintenance work performed * * * which is ‘far removed from the risks associated with the construction or demolition of a building'” (Manente v. Ropost, Inc., 136 A.D.2d 681, 682, 524 N.Y.S.2d 96). The injured party had produced several precedent cases in which to show an applicability of his accident under Labor Law §240(1). However, the court duly noted that some of the cases that the injured party had used as precedent, actually concerned Labor Law 241 (6) and not Labor Law § 240 (1). It is the responsibility of the injured party in cases such as this one to prove that he meets the elements of the Labor Laws in order to invoke their protections. “To invoke the protections of Labor Law §§ 200, 240(1) and 241(6), the injured party ‘must demonstrate that he was both permitted or suffered to work on a building or structure and that he was hired by someone, be it owner, contractor or their agent.'” (See, Gibson v. Worthington Div.–McGraw-Edison Co., supra.) Because the record in this case clearly shows that the property manager was not employed or involved in construction work, it limits the Labor Laws that are applicable in this case. His activities on any work day and certainly on the work day in question were maintenance and operational by definition. These activities as remarked in Phillips v. City of New York, supra 228 A.D. 2d 570 held that Labor Law § 240(1) was not designed to encompass routine maintenance work “which is ‘far removed from the risks associated with the construction or demolition of a building’ and that takes place ‘in a non-construction, non-renovation context'” in light of these facts, the injured worker’s Labor Law § 240 (1) claim was dismissed. The Justices also state that his Labor Law 241 (6) claim should be dismissed for the same reason in that Labor Law § 200 is the most appropriate law to apply to the safety issues at this work site. Labor Law § 200 discusses the common-law duty of an “owner or contractor to provide employees with a safe place to work, the application of which is not limited to construction work and does not exclude maintenance personnel, was properly sustained.” (See, e.g., Jock v. Fien, supra, 80 N.Y.2d at 967, 590 N.Y.S.2d 878, 605 N.E.2d 365.)

The issue as the cause of the accident falls in many forms. The most important problem in this case is that no one actually saw what caused the net to fall. All of the discussed theories have some form or another of merit which brings into discussion the liability of each party involved to one degree or another in the use of this net that caused the accident. Obviously, several workers knew that the net was not reliable, yet no one reported this problem up the chain of supervision. Therefore if the net was defective, it could not be replaced and the faulty nature of the net could not be documented.

The next theory discussed the fact that the company that was supposed to keep the debris out of the net was not doing a good job of ensuring that the net remained unburdened by the weight of debris. If in fact, it is proven that the amount of debris that was in the net at the time of the accident was excessive, then liability will fall with them. It is a similar story with the truck lever.

The court rules that there are enough questions of fact to preclude a summary judgment in this case except where it involves the modifications of the Labor Law Statutes that are invoked as previously stated.
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On October 31, 1958 a mother was waiting to have her infant daughter x-rayed in a mobile X-ray truck, the truck was struck by another vehicle. The child was injured in the accident. The driver in the commercial truck accident later died. The accident report has to speak for what happened in the accident.

Apparently, the commercial truck driver attempted to move his vehicle which was parked against the curb in front of the place of business. There was an unoccupied vehicle parked behind his truck, and the mobile X-ray truck was parked in front. The driver put his vehicle into reverse and struck the car parked behind him. The bumpers interlocked due to the size difference in the vehicles. The commercial truck driver pulled forward causing the vehicle attached to its bumper to come into hard contact with the mobile X-ray truck that had been parked in front. The impact caused the injury to the infant.

The parents of the infant filed suit in Brooklyn, New York against the driver and the company that employed the driver for damages incurred because of the driver’s actions. They asked the court for an order granting summary judgment against the company and to direct immediate assessment of damages by a jury.

The company that hired the driver made a cross-movement for an order of preclusion because they claim that the parents of the infant had failed to serve a bill of particulars to them after it was requested. Further, they claim that they have no knowledge or information about the nature or circumstances of the accident. They also state that because the driver is deceased and cannot tell them what happened that they should not be held to as a high a degree of proof in opposing the motion of the parents as they would have if the driver was still alive.

The court held that in light of the fact that the incidents and particulars of this case are not the exclusive knowledge of the parents. The facts involved in this case are public knowledge and documented in reports that could easily have been obtained by the company or its representatives prior to the court date. Further, the parents provided the following documentation to the company in their opposing affidavit: a statement allegedly made by the truck driver to an investigator hired by the parents before his death. Because these items were provided to the company, the court presumes that this company had ample opportunity to become aware of the facts of this case prior to trial.

There is no dispute about how this accident occurred. There is no dispute about who caused the accident in that there was only one driver involved. There is no dispute that the actions of the driver caused the injury to the child.

The court finds that there are ample grounds to direct a motion for summary judgment and an assessment of damages for the parents. The court also finds that more detail needs to be provided to the company in reference to particular charges. So the parents are ordered to provide the information to the company within 10 days after service or the motion to preclude will be granted.
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On May 8, 1964, a truck driver for a commercial company drove his employer’s truck to a business on Lake Shore Drive in Oswego, New York. Upon his arrival, the truck was being loaded by a crane operated by an employee of the business with scrap metal. One of the pieces of scrap metal struck the commercial company’s truck driver and causing him injury. After the injury, the commercial truck driver notified the business that he was filing a lawsuit for injuries and damages.

Following the notification of a lawsuit, the business notified their Bronx insurance company. The business’ insurance company then notified the insurance company for the commercial motor vehicle that the victim had been driving. They maintained that the loading of the commercial truck was covered under the motor vehicle policy that was under their jurisdiction. Therefore, the insurance company that was responsible for the damages should be the insurance company that covered the truck. The insurance company that covered the truck disagreed. They felt that it was the responsibility of the insurance company that covered the business, their property, and the actions of their employees. The insurance company for the truck was not notified of the truck accident until eight months after the accident in December of 1964.

The insurance company for the truck applied to the court for a motion of summary judgment on the contention that the insurance company for the business had failed, as a matter of law, to comply with the notice provisions of the insurance company for the truck’s policy. The notice of accident as it applies to that policy states:

‘When an accident occurs written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable. Such notice shall contain particulars sufficient to identify the insured and also reasonably obtainable information respecting the time, place, and circumstances of the accident, the names, and addresses of the injured and of available witnesses.’

The policy also states that “no action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy. In short, the insurance company for the truck claims that by notifying the company eight months after the accident, it is not timely as a matter of law and so by reason of the policy, they are not liable. The court maintains that “to grant summary judgment it must clearly appear that no material and triable issue of fact is presented.” (Di Menna & Sons v. City of New York, 301 N.Y. 118, 92 N.E.2d 918). The court maintains that summary judgment should not be granted where there is any doubt as to the existence of triable fact.

The question involved here being if eight months was short enough of a time period to be considered timely under the insurance company for the truck’s policy. The court maintained that following much discussion of timeliness as defined in numerous other cases, that the insurance company for the business should be held to the same responsibility of timely notification that it demands of its own insured’s and that they should be considered co-carriers and not a separate insured person themselves. The court also feels that it is unreasonable in this day and age of ease of information to believe that the business’ insurance company could not have found out what information it was seeking.

In response, the court finds that timely notice was not given and wrote:

‘The finding of the trial court that notice of the accident was given by the representative of third party plaintiff to third party defendant ‘as soon as practicable’ as required by the policy provision is contrary to the proof. Such representative did not use due diligence in 1960 to ascertain the name of the insurance carrier affording coverage to the truck being unloaded at the time of the accident by plaintiff in the main action. Proof of financial security must be furnished contemporaneously with the registration of a motor vehicle (Vehicle & Traffic Law § 312) and any person may obtain a copy of the certificate of insurance from the Department of Motor Vehicles upon payment of the legal fee (Cf. 1942 Op.Atty.Gen. 194). The lack of diligence on the part of the representative of third party plaintiff is emphasized by the alacrity with which the required information was obtained and notice given to third party defendant some two years later when the main action was commenced.’

The court asks if there were any extenuating circumstances that would have prevented the business’ insurance company from giving written notice to the insurance company for the commercial motor vehicle. The answer was that there was not. The insurance company for the business had knowledge of the accident on May 12, 1964 only four days after the accident. The court feels that because the business’ insurance company is an insurance company, they should have known that the insurance company for the commercial motor vehicle was in play. The court then feels that it would only have been appropriate for one insurance company to provide the other insurance company with timely notification.

Because the insurance company for the commercial motor vehicle was not notified by the business’ insurance company in a timely manner, the court decided to grant the motion for summary judgment dismissing the motion of the business’ insurance company that the insurance company for the commercial motor vehicle is responsible to cover the lawsuit. The court finds that since insurance company for the commercial motor vehicle was not notified in a timely manner by the other insurance company, it cannot be found responsible and is relieved of liability. That being said, the court finds that there is no reason to determine if one insurance company should be considered primary and the other secondary. There is only one company that is liable; the company that represents the business where the incident occurred.
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On July 27, 2007, an employee for a water pollution control plant in Brooklyn, New York was at work in an area that was under construction to upgrade the facility. Part of the employee’s job was to provide identification checks on all persons working on the site to ensure that they were members of the Teamsters Union. The water pollution control plant provided him with a Chevrolet Silverado work truck to use while he was performing his duties. On this date while he was pulling up to park the truck, he observed another truck pull in and turn down a temporary road. The employee advised that he got out of his truck to walk down the road to check the man’s union card because it was a nice day. When he got out of his work truck, he stepped onto a temporary ramp that was set up by some of the construction workers on the site. The ramp was constructed of two by four pieces of wood. When he stepped on it, the boards separated and he fell approx. 18 inches to the ground breaking several bones in his foot. He filed a lawsuit to gain compensation for his injuries.

The employee stated in his suit that he felt that the water treatment plant was responsible for paying for his injury because they either knew or should have known that the ramp was in use on their property and that the ramp was not safe. The company disagreed. They felt that they did not install the ramp and that they did not know that it was in use. They did not feel that they should be held responsible for his injury because he was injured by his own fault because he was using the two by fours to walk on. The water treatment plant requested a summary judgment to dismiss all liability against them.

The court disagreed. They stated that the employees’ injuries came from an unsafe condition that was present at the construction site, i.e. the faulty ramp of two-by-fours which collapsed. The question of law is if the plant had actual or constructive notice of the condition of the ramp being used on the premises. The employee does not dispute that the water treatment plant did not build the ramp itself, only that they knew that it was there and did nothing to either make it safe or remove it.

The court finds that there is enough evidence that they may have known that the ramp existed that the case needs to go to trial and that they will not make a summary judgment in this case.
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One day in July, a the driver of a truck owned by a car leasing company, and leased to a delivery company experienced recurrence of a mechanical problem with the truck in which the accelerator pedal occasionally sticks, does not elevate automatically when the driver’s foot is off it, and which the driver is able to correct only by tapping the pedal with his foot. The driver called the mechanics responsible for the maintenance of the truck who instructed him to drive the truck back into Manhattan.

In the afternoon, the truck was travelling westbound on the Long Island Expressway when the pedal stuck again as the truck was descending an incline. At that point the Expressway curved slightly to the left. The driver looked at the pedal for a moment, during which period the truck swerved on to the shoulder of the Expressway, striking two parked buses. A passenger in the bus suffered very severe injuries to his legs.

The passenger filed an action for damages against the truck driver and the bus companies. The bus companies denied liability arguing that the buses were not the proximate causes of the injuries sustained by the passenger.

The court pointed out that City of New York’s Vehicle and Traffic Law provides that, except when necessary to avoid conflict with other traffic, or in compliance with law or the directions of a police officer or official traffic-control device, no person shall stop, stand or park a vehicle on a state expressway highway or state interstate route highway, including the entrances thereto and exits therefrom which are a part thereof, except in an emergency.

Likewise, the Traffic Regulations provides that stopping or parking or operation of a motor vehicle is prohibited on the berm or shoulder adjacent to a parkway or an expressway except for emergency purposes.

The court ruled that, in this case, the facts point out that the negligence of the bus owners was a substantial cause of the injuries sustained by the bus passenger. The court explained that negligence of the bus owners was closely, indeed immediately, connected in time and space to the injuries sustained by the bus passenger. The court pointed out that the statute and the regulation create a legal relationship between the operators of the bus and other vehicular traffic. The statute and the regulation were designed with an awareness that from time to time vehicles on high speed state highways go on to the shoulder under circumstances that make the presence of standing or parked vehicles a source of danger. It does not matter whether the truck driver in this case intended to go on to the shoulder because of mechanical failure, or to avoid another vehicle, or whether the truck did so because a steering wheel malfunctioned or as a result of driving error.
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A case was filed raising the issue of whether the collapse of forms used for framing poured concrete foundations, stacked on top of a flatbed truck that killed a 40-year old man falls within the provisions of the New York City’s Labor Law or common law negligence.

One day in March of 2006, the man was fatally injured while standing on a flatbed truck when a bundle of concrete forms lying on the floor of the truck fell on him, causing him to fall to the ground below. The decedent was employed by a subcontractor to the owner of the premises where the accident happened. The subcontractor was to perform demolition, excavation, and foundation work in the construction of house.

The project where the demolition was done called for the construction of several three-family and two-family homes. The decedent had been working on the site loading concrete forms onto a flatbed truck. The forms were used in pouring the concrete foundation and were then removed. The forms were then stacked in groups of fifteen, bound together, and lifted by a Caterpillar 320 machine out of the foundation hole and onto the flatbed truck. There were six bundles of concrete forms that had to be lifted. Each bundle contained 15 concrete forms that were tied with two metal straps on each side. The truck accident occurred with the fourth bundle.

The Westchester contractor denied liability to the decedent under the Labor Law asserting that it was not an “owner,” “contractor,” or “agent” of the owner or general contractor at the time of the accident. Since it was undisputed that the contractor was the owner nor general contractor on the subject construction project, the only issue remaining is whether it was a statutory agent of the owner or general contractor.

The court explained that an entity is deemed a contractor within the meaning of Labor Law if it had the power to enforce safety standards and choose responsible subcontractors. Therefore, to impose liability, the defendant must have the authority to control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition. To recover under Labor Law, a plaintiff must establish the violation of an Industrial Code provision, which sets forth specific, applicable safety standards, in connection with construction, demolition, or excavation work.

An employee of the contractor testified that the owner of the building hired all of the subcontractors to perform work on the subject construction project, and the contractor did not exercise any supervision or control over the work performed by the decedent and had no authority to do so. The court also found that there was no violation of any Industrial Code provision by the subcontractor because court testimonies showed that the decedent was not working in an area that is considered hazardous.
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One August, on the Manhattan Bridge, two trucks collided head-on. According to sources, the day was rainy and the road surface slippery. The roadway was constructed of steel-ribbing with recessed concrete fill, adding to the slipperiness of the surface. As a result of the impact, the driver of one truck was thrown from his truck and sustained personal injuries. The truck driver who sustained the injuries filed a complaint against the driver of the other truck to seek compensation for the damages he sustained.

The driver of the other truck disputed liability and the nature and extent of the injuries allegedly sustained by the other driver. According to the defendant truck driver, he is not liable for the accident and the injuries sustained by the other truck driver because it was not his fault that the accident occurred. He blamed the bad weather, which caused the road to be slippery and hazardous to vehicle drivers. The defendant truck driver also said the plaintiff truck driver did not suffer permanent personal injuries that would cause him to lose his earning capabilities.

According to records in the NYC court, the sole evidence on the cause of the truck accident came from witnesses presented by the plaintiff truck driver. The records also showed that the plaintiff truck driver was involved in a prior accident in 1946. In that accident, he sustained an injury to his back. In the 1950 accident, the truck driver said he suffered injuries to the back, in addition to a fracture of a facial bone. A medical doctor who examined the plaintiff truck driver affirmed that the truck driver indeed sustained injuries as a result of the 1950 accident, but the doctor said the allegations on the facial bone fracture is yet to be determined by further medical exams.

The court ruling on the case said it is settled law in the State of New York that proof merely of the sudden swerving of an automobile from its own lane is not prima facie evidence of negligence or evidence sufficient, without more, to permit an inference that the driver was negligent. The court then observed that a sudden swerve might be due to several causes, including the operation of the automobile, the condition of the vehicle, or the condition of the roadway.

In this case there was evidence of ‘extraordinary conditions’ with respect to the road, namely, the steel-ribbing-concrete construction and the added slipperiness of the surface due to the rain or drizzle. In this case, there is an additional category of probable causes which could account for the sudden swerving of the automobile, namely, the peculiar construction of the roadway aggravated by wetness of the surface. In other words, the proof suggested a skid as strongly as it did a wheel-controlled deviation from the proper lane.
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