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FILED: RICHMOND COUNTY CLERK 02/02/2019 02:52 PM INDEX NO. 750035/2018
NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 02/02/2019
"D"
EXHIBIT
FILED: RICHMOND COUNTY CLERK 02/02/2019 02:52 PM INDEX NO. 750035/2018
NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 02/02/2019
dh. NYSCEF -
Richmond County Supreme Court
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750035/2018
ESTHER DIPILATO - v.- ANDREW SCIBELLI et al
Assigned Judge: Thomas P Aliotta
Documents Received on 01/28/2019 01:34 PM
Doc # Document Type Motion #
148 AFFIDAVIT OR AFFIRMATION IN OPPOSITION TO MOTION 001
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151 AFFIRMATION/AFFIDAVIT OF SERVICE 001
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FILED: RICHMOND COUNTY CLERK 02/02/2019 02:52 PM INDEX NO. 750035/2018
NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 02/02/2019
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750035/2018
ESTHER DIPILATO - v.- ANDREW SCIBELLI et al
Assigned Judge: Thomas P Aliotta
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FILED: RICHMOND COUNTY CLERK 02/02/2019 02:52 PM INDEX NO. 750035/2018
NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 02/02/2019
File No.: 25319
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
-----------------------X
ESTHER DIPILATO AFFIDAVIT IN
Plaintiff, OPPOSITION to Sammo
-against- Motion for Summary
Judgment
ANDREW SCIBELLI, SJ FUEL CO., ANTHONY INDEX #: 750035/2018
DIPILATO, ALFRED DOTTARIO, JR., AND SAMMO
LLC.,
Defendants ,
--------------------------------------------------X
ANDREW SCIBELLI AND SJ FUEL CO., INC.,
Third Party Plaintiff s,
-against-
THE CITY OF NEW YORK,
NEW YORK CITY DEPARTMENT OF
TRANSPORTATION,
and NEW YORK CITY DEPARTMENT OF
PARKS AND RECREATION
Third Party Defendants ,
-----------------------------------------X
STATE OF NEW YORK )
COUNTY OF NEW YORK)SS.:
Lee M. Huttner, Esq., being duly sworn, deposes and says, under the penalty of perjury
and upon information and belief:
That I am associated with the attorneys for the plaintiff, ESTHER DIPILATO herein and
am familiar with the facts and circumstances herein, except as to those alleged upon information
and belief, and as to those I verily believe them to be true.
That I make this Affidavit in Opposition to the Motion dated January 8, 2019 on behalf of
SAMMO LLC., seeking an order "granting Sammo LLC's motion for summary judgment
FILED: RICHMOND COUNTY CLERK 02/02/2019 02:52 PM INDEX NO. 750035/2018
NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 02/02/2019
dismissing with prejudice Plaintiff's Complaint against Sammo LLC, and for such other, further and
proper"
different relief as the Court deems just and
The motion seeking the drastic remedy of summary judgment and dismissal of the plaintiff
Dipilato's complaint against SAMMO LLC (hereinafter SAMMO and/or movant) should be denied
with prejudice. Alternatively, the summary judgment motion should be denied with leave to renew
upon completion of discovery in this case.
Denial of the motion proves the correct result upon finding movant's burden unsatisfied
pursuant to CPLR section 3212 (b) and/or finding the motion premature pursuant to CPLR section
3212 (f).
The following Exhibtis are attached hereto:
1. Complete copy of Plaintiff s September 2018 Opposition to Sammo application to Dismiss
Support2
2. Copy of October 2018 Plaintiff Motion and Attorney Affidavit in (exhibits
omitted but can be provided at request of Court)
3. Copy of Preliminary Conference Order dated January 22, 2019
Although denial of the drastic of judgment should result- at leastat this
remedy summary
juncture, to the extent thiscourt is inclined to grant the relief requested by Sammo in the motion
dated January 8, 2019 with a Notice of Motion date of February 13, 2019, then the complaint of
Esther Dipilato must remain intact as against co-defendants ANDREW SCIBELLI, SJ FUEL CO.,
ANTHONY DIPILATO, and ALFRED DOTTARIO, JR.
SAMMO previously sought dismissal of the claims of plaintiff Dipilato before the above
captioned action was transferred from Kings County to Richmond County. By Motion dated July
Opposition to Sammo Supreme Kings - Dismissal Motion dated with a Notice
Court, County July 17, 2018 of
Motion September
date of 17, 2018.
2
seekingan order:(1) grantingplaintiff
EstherDipilatoleaveto servea late notice
of claimupon THE CITY OF NEW
YORK a/s/h/aTHE NEW YORK CITY DEPARTMENT OF TRANSPORTATION AND THE NEW YORK CITY
DEPARTMENT OF PARKS AND RECREATION, and (2)forleave toamend the complainttoinclude claimson
behalfof plaintiff
EstherDipilato againstthe CITY defendants,and; leave
(3) granting to plaintiff
to amend the
complaint toinclude claimsagainstMichael Marcus, Basso Landscaping, and Edward Philips,
and; (4) foran order
consolidatingthe abovecaptioned case withtherelatedcase bearingindex number 5 12538/2018, pending in Supreme
Court,Kings County, and, (4)forsuch otherand furtherrelief
in favorofplaintiff
as thisCourt deems justand proper.
FILED: RICHMOND COUNTY CLERK 02/02/2019 02:52 PM INDEX NO. 750035/2018
NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 02/02/2019
17, 2018 with a Notice of Motion date of September 17, 2018 in Supreme Court, Kings County, and
Defendant SAMMO sought relief identical to that sought in the instant motion dated 1/8/19.
Plaintiff filed and served opposition to same. A complete copy of plaintiff's Opposition from
September 2018 is attached hereto as Exhibit "1". It is respectfully requested that the content of
same be adopted and incorporated herein.
It is also respectfully requested that any order granting SAMMO summary judgment also
include relief in favor of Esther Dipilato adding the defendants named in the Third Party action as
direct defendants in plaintiffEsther Dipilato's action, namely; THE CITY OF NEW YORK,
NEW YORK CITY DEPARTMENT OF TRANSPORTATION, and NEW YORK CITY
DEPARTMENT OF PARKS AND RECREATION. A prior application was made requesting
same relief on behalf of Plaintiff Dipilato in Supreme Court, Kings County. Upon information
and belief, that application was not decided before venue was transferred3. A copy of that
application (exhibits omitted for purposes of this motion out of respect for judicial economy) is
attached hereto at Exhibit "2".
"2"
To the extent necessary, itis respectfully requested the content of Exhibit be adopted
and incorporated herein.
To the extent this Court is not inclined to grant the plaintiff such 'further and different
relief'
as included in the SAMMO Notice of Motion as against the defendants in the Third Party
action, then it is respectfully requested that the SAMMO motion be denied, at least at this
juncture.
Upon information and belief, denial of the SAMMO Motion proves appropriate upon
finding movant's prima facie burden unsatisfied in the first instance.
Upon information and belief, denial of the SAMMO motion in the above captioned
Dipilato action is appropriate to the extent that denial of any similar motion in the action bearing
index number 1510036/2017 in the Scibelli action is appropriate. Upon information and belief, a
request for dismissal on behalf of Sammo in that action is currently pending.[See, Paragraph #13,
Attorney Affirmation with Sammo Motion].
"1"
In addition to the opposition incorporated herein from Exhibit hereto, the
below should provide additional grounds for denial of the dismissal SAMMO seeks.
In Fermin v City of New York, 2010 NY Slip Op 51597(U) [28 Misc 3d 1235(A)]
(Supreme Court, Kings County, 2010), the Court stated as follows;
3 Motion dated
See, paragraph#14, Attorney Affirmation inSupport of Sammo January 8, 2019
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NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 02/02/2019
"Plaintiff punctured the sole of her right foot and fellon her right side on September 11,
2007 in front of 3420 Fulton Street in Brooklyn after stepping on the metal stump of a No
Parking signpost located one and a half inches above the sidewalk and approximately 25 feet
from the corner of Lincoln Avenue and Fulton Street. She claims chronic pain in her right foot
and resulting difficulty walking and running from the trip and fall. She filed a notice of claim
against the City on November 5, 2007 and then filed this action for her personal injuries from the
fallagainst the City and Millennium on April 8, 2008. Millennium has rented the ground floor of
3420 Fulton Street, a mixed-use building, from itsowner, MMLC since 2004. Plaintiff claims
that itwas the City's and Millennium's duty to maintain the southeast sidewalk corner of Lincoln
defendants'
Avenue and Fulton Street and that her personal injuries resulted solely from
negligence, carelessness and recklessness. A plaintiff seeking to recover from the City for
injuries caused by a defect in the sidewalk must show as a condition precedent to suitthat the
City received prior written notice of the defect as required by the Administrative Code of the
City of New York (NYC Administrative Code) § 7-201 (c) (2) (the Pothole Law). "A
municipality that has enacted a prior written notice law is excused from liabilityabsent proof of
thereto"
prior written notice or an exception (Regan v Town of North Hampstead, 66 AD3d 863,
Cin·
864 [2009]; Dia: v ofNew York. 56 AD3d 599, 600 [2008]).Here, the City states that itdid
not receive any prior written notice of the metal stump that allegedly injured plaintiffs foot. It
proffers deposition testimony by two New York City Department of Transportation (DOT)
employees, Mr. Joseph Lorenzo and Ms. Stacey Williams, and documentary evidence as a prima
facie showing in support of its motion.Mr. Lorenzo, the DOT's Deputy Borough Engineer for
Brooklyn, testified (at pages 12-13 of his deposition) that the City received a complaint on
November 29, 2006 about a stump of a signpost in the sidewalk on theeastern side of Lincoln
Avenue between Fulton Street and Atlantic Avenue. He explained that the records indicate that a
contractor removed the stump and installed a new No Parking signpost and sign on December 5,
2006, but thereafter, the City had no written notice that the No Parking signpost was allegedly
knocked down again until after plaintiffs injury.In addition, Ms. Williams, a Record Searcher
and Testifier at the DOT, described in her testimony the results of a search she performed in
connection with the case regarding the Lincoln Avenue sidewalk between Fulton Street and
Atlantic Avenue. She testified (at pages 10-13 and 18-19 of her deposition) that, other than the
December 5, 2006 job, the City has no record of applications for permits, permits, violations,
contracts, complaints or repair orders between September 11, 2005 and September 11, 2007. The
City therefore has made a successful prima facie showing that itreceived no prior written notice
that the No Parking signpost had been knocked down again until afterplaintiffs injury. Ms.
Williams' Lorenzo'
and Mr. respective deposition testimony and documentary evidence together
provide facts that clearly establish that the City did not receive any written notice about the metal
stump of the knocked-down No Parking signpost after December 5, 2006 and before plaintiffs
accident. Equally significant, the plaintiff has voiced no challenge in response to any facts in
Williams'
either Ms. or Mr. Lorenzo's testimony, and, therefore, plaintiff may be deemed to have
admitted the facts therein (see Zientek v State 222 AD2d 1041, 1042 [1995]. appeal dismissed87
[1996]).G
NY2d 1054 [1996], cert denied519 US 862 Once the City has made a prima facie
showing that a plaintiff has not met the written notice requirement, such plaintiff may stilldefeat
summary judgment by establishing either that the particular condition constituted a special use
resulting in a special benefit to the City, or that the City affirmatively caused or created the
defect by performing work that immediately resulted in the existence of a dangerous condition
FILED: RICHMOND COUNTY CLERK 02/02/2019 02:52 PM INDEX NO. 750035/2018
NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 02/02/2019
(see Yarborough v Cin of New York, 10 NY3d 726, 728 [2008]).Plaintiff claims thatin this case
the No Parking sign and signpost, even though missing, provided a special use tothe City
because the City could fine motorists who parked their vehicles at that location at a prohibited
time. However, the Court of Appeals has observed that "the special use exception is reserved for
situations where a landowner whose property abuts a public street or sidewalk derives a special
benefit from that property unrelated to public use, and is therefore required to maintain a portion
property"
of that (Poirier v City ofSchenectady, 85 NY2d 310, 315 [1995] [emphasis added]).
Traffic signs and their posts and anchors do not qualify as a special use tothe City as "[t]raffic
signs are intended to promote the orderly flow of vehicular and pedestrian traffic, and the posts
and anchors are generally maintained by the municipality in the discharge of itsduty to create
streets"
safe (id.).Plaintiffs attempt to distinguish Poirier as limited to vehicular and pedestrian
traffic signs and not, as here, parking signs is unavailing. The Appellate Division, First
Department held in Bisulco v City ofNew York(186 AD2d 84, 85 [1992]) that an "IAS Court
erred in finding that the installation of a parking sign on a city street is a special use bringing it
out of the mandate of the statute [i.e..
the Pothole Law]."Plaintiff also argues that a triableissue
of fact remains whether the City possibly caused or created the dangerous metal stump on the
sidewalk because itdoes not argue or maintain that itdid not remove, knock down or cut off the
Williams'
No Parking signpost and leftonly the metal stump. However, Mr. Lorenzo's and Ms.
respective deposition testimony eliminate this issue by establishing that the City never issued a
repair order to remove the No Parking signpost after itwas replaced on December 5, 2006 and
that there were no subsequent written notices on record for the subject location.Plaintiff in her
final argument contends that the dangerous condition at issue is outside the Pothole Law's scope,
which she claims, concerns only physical defects in the sidewalk, such as holes, cracks and
raised or misleveled concrete slabs. plaintiffs cited case law" fails to support this
However,
argument and simply establishes that the Pothole Law is inapplicable to defective or poorly
"Stop"
maintained signs. Rather, itis well settled that the stump of a metal signpost anchor
protruding from the sidewalk constitutes a condition for which prior written notice is required
under the Pothole Law (see Amabile v City ofBuffalo, 93 NY2d 471, 475 [1999] [prior notice
applies to 10-inch remnant of signpost protruding from sidewalk]; Poirier v City ofSchenectady,
85 NY2d at 314 [prior notice applies to four-inch traffic sign post anchor protruding from
sidewalk]). A party seeking to join an additional party rnay, pursuant to CPLR 3025 (b),amend
or supplement the complaint by leave of the court, but the movant must strictly comply with
CPLR 1003, which provides that "[p]arties may be added at any stage of the action by leave of
."
court or by stipulation of allparties who have appeared . . "[N]oncompliance renders the
pleadings jurisdictionally defective (Perez v Paramount Communications, 92 NY2d 749, 753
[1999]; see also Nikolic v Federation Empt. & Guidance Serv . Inc.. 18 AD3d 522, 524 [2005]
["plaintiffs service of the amended summons and complaint was a nullity since he served these
papers without leave of court or a stipulation of the parties in accordance with CPLR 3025
["plaintiffs'
(b)"]; Yadeger v International Food Mkt., 306 AD2d 526, 526 [2003] failure to
follow (CPLR 1003) before service of their supplemental summons and amended complaint
constituted a jurisdictional defect requiring dismissal of the action against the new party
defendants"]).Here, plaintiff seeks to add MMLC as a defendant by leave of this court. The
moving papers note that plaintiff only learned that MMLC was the owner of the property at the
time of her accident through the July 24, 2009 deposition testimony of Mr. Rahman, tenant
Millennium's President. Plaintiff claims that MMLC would suffer no prejudice by the
amendment of the complaint.However, plaintiff has failed to serve itsmotion papers upon
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NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 02/02/2019
MMLC, the proposed new defendant. More significantly, though, plaintiff mistakenly seeks to
impose liabilityupon MMLC. NYC Administrative Code § 7-210, applicable to sidewalk-defect
accidents occurring on or afterSeptember 14, 2003, shifted liabilityfor sidewalk accidents in
most instances from the [*5]City to abutting land owners.®31Nonetheless, the Appellate
Division, First Department held on July 1, 2010 in Smith v 125th St. Gateway Ventures, LLC (75
sidewalk'
AD3d 425, 425 [2010]) that "a city sign or signpost is not part of the forpurposes of
section 7-210 of the Administrative Code of the City of New York, which imposes tort liability
condition"
on property owners who fail to maintain city-owned sidewalks in a reasonably safe
(see also Calise v Millennium Partners, 26 Misc 3d 1222[A], 2010 NY Slip Op 50208[U] [2010]
[plaintiff tripped and fell on a piece of protruding metal that was from a signpost bearing a No
Parking or No Standing sign; landowner "as a matter of law ...isnot liable for the defective
condition of a city-owned and maintained sign post"] ; Sehnert v New York City Transit
Authority, 2009 NY Slip Op 32807[U] ["(g)enerally, liability for a city sign post lieswith the
City, and not with the landlord or tenant"]; King v Alltom Props., Inc., 16 Misc 3d 1125[A], 2007
NY Slip Op 51570[U] [2007] [1andowner bears no obligation to maintain City signpost]).
Indeed, New York City Charter § 2903 (a) (2) obligates the City, through itsDepartment of
Transportation to "control, install and maintain ...any and all signs, signals, marking, and similar
devices ...for guiding, directing or otherwise regulating and controlling vehicular and pedestrian
trafficin the streets."In addition, the signpost fails to qualify as a special use to the owner.
Parking' Standing'
MMLC, like the owner in Calise, "had no power to either install a No or No
sign or to remove such a sign that was installed by the City. That some benefit may have flowed
to [the owner] is notthe determinative factor. There must be control over the installed object in
order to impute liability to [the owner] under a theory of special use, and that has not been
here"
shown (Calise v Millennium Partners, 2010 NY Slip Op 50208[U], *3). Consequently, the
above analysis shows that plaintiff s proposed amendment to add MMLC, the building owner, as
a co-defendant lacks merit and warrants denial. The above analysis equally warrants granting
tenant Millennium's summary judgment motion. No statutory duty applies herein to either
Millennium or MMLC, and plaintiff does not contend that Millennium created the dangerous
condition of the sidewalk nor caused the condition through special use. Plaintiff does argue that
Millennium bears liabilityfor failing to notify the City or MMLC of the metal stump because
Mr. Rahman, Millennium's President, voluntarily assumed a duty to act "in a reasonably prudent
manner"
by calling 311 twice to notify the City before the accident about a hole in the street in
front of his store. However, Mr. Rahman's telephone calls failto constitute assumption of a
voluntary duty. The Court of Appeals noted in Waters v New York City Housing Authority (69
NY2d 225, 230 [1987]) that the extent of control that a defendant has over the ultimate injuries
incurred by a plaintiff constitutes an important issue in determining the scope of a defendant's
duty. Here, the City, not Millennium, controls the signpost repair and no liabilitycould extend to
plaintiff from Mr. Rahman's phone notifications to the City (see Matter of New York State
Silicone Breast Implant Litig., 166 Misc 2d 299 [NY County, 1995], affd 227AD2d 310, 311
[1996], appeal dismissed 89 NY2d 889 [1996]). Accordingly, itis ORDERED that defendant
City's summary judgment motion is granted; and itis further ORDERED that plaintiffs motion
to amend her complaint and add MMLC as a co-defendant is denied; and itis further ORDERED
that defendant Millermium's summary judgment motion is granted.This constitutes the decision,
order and judgment of this court". [Emphasis added].
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NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 02/02/2019
While the Kings County Fermin decision (supra) cannot control especially since same
involves a pedestrian injured using a sidewalk and thus, is factually distinguishable from the
passenger Esther Dipilato in the instant case, language in the decision in bold/emphasized above
should underscore the failure of SAMMO to eliminate issues of fact as to control over the plant
lifethat obstructed the stop sign.
At this juncture, discovery in the Dipilato action has not meaningfully taken place. No
depositions have bene conducted to date, upon information and belief.
Before the drastic remedy of dismissal results in favor of Sammo, depositions of all parties
should take place, and to the extent necessary, plaintiff should be permitted to present a full
record in thiscase including FOIL results and deposition transcripts to an expert to analyze
whether thè condition of the tree/shrubbery constituted a condition so inherently dangerous as to
necessitate the removal of the trees/plant/shrubbery and whether same were in such close
proximity to the accident location to constitute an unreasonable danger. Compare/Contrast;
In Soto v. City of New York, 63 A.D.3d 1035 (2nd Dep't 2009), Herman Soto was driving his
car on Highland Boulevard in Highland Park, Brooklyn. To avoid an oncoming car Soto swerved
and collided with a tree that was located four and a half feet from the roadway. There were
guardrails on that portion of the road, but the tree was located between the road and the
guardrail. Soto argued that the guardrails were defectively installed because they would not
prevent a car from striking the tree. The court found that the guardrails were designed to prevent
entry into the park, not to prevent collisions with trees. The existence of trees so close to the
roadway "did not give rise to a condition so inherently dangerous as to necessitate the erection of
trees."
guardrails or the removal of Id. at 1037. The case was dismissed as a matter of law.
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NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 02/02/2019
To the extent the parties have not been deposed to ascertain any knowledge of any prior
accidents at the location, same should reflect that summary judgment may be correctly denied
pursuant to CPLR section 3212 (f).Compare/Contrast; Hav v. State of New York, 60 A.D.3d
1190 (3rd Dep't 2009) (driver swerved to avoid deer and hittree stump three feet from roadway
surface).
On January 22, 2019 a Preliminary Conference was held in the above captioned action in
Supreme Court, Richmond County. A copy of the order from said conference is attached hereto
at Exhibit "3".
Upon information and belief, questions exist as to whether depositions with the
defendants in the Dipilato action, the related Scibelli action (index number 151036/2017) and/or
the Third Party action, would lead to relevant evidence in the instant action should favor denial
of the SAMMO motion pursuant to CPLR section 3212 (f).See; Martinez v 305 W. 52
Condominium, 128 AD3d 912, 914 (2nd Dept., 2015) ["A party should be afforded a reasonable
opportunity to conduct discovery prior to the determination of a motion for summary
judgment.... the Supreme Court properly denied the motion and cross motions for summary
judgment to the extent indicated above, as premature, since further discovery may lead to
relevant evidence, although the denial should have been without prejudice to renew upon the
completion of discovery"]4.
To the extent that SAMMO cannot show that plaintiff has had a reasonable opportunity to
engage in discovery with the defendants in the above captioned actions regarding the exercise of
control and/or existence of agreement(s) or contract(s) regarding duties related to the stop sign,
accident, and shrubbery, and conduct discovery (now that venue has been decided) related to
such duties that bear upon liability questions in the instant case, then at least questions exist as to
4
Emphasis added
FILED: RICHMOND COUNTY CLERK 02/02/2019 02:52 PM INDEX NO. 750035/2018
NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 02/02/2019
whether facts exist that would support denial of the Sammo motion but cannot be stated at this
juncture. Accordingly, the Sammo motion should be denied. However, ifgranted, the order
granting same should afford plaintiff Dipilato the relief sought as against the Third Party
"2"
defendants/municipal defendants and/or relief sought as set forth in Exhibit of this
Opposition.
WHEREFORE, itis respectfully requested that the motion by SAMMO LLC., dated
January 8, 2019 , be denied in all respects, and together with such other and further relief in
favor of plaintiff as to this Honorable Court may seem just an pr per.
Lee uttner, Esq.
UBIN ASSOCIATES, LLP
Attomey for Plaintiff
23rd
150 Broadway, flOOr
New York, N.Y. 10038
(212) 285-3800
Sworn to before me this
28*
day of, January, 2019
Notary Public
GWzkaEahankukmi
Commieskmer of Deeds, City of New Wik
No.02-14248
C :a, 04
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FILED: RICHMOND COUNTY CLERK 02/02/2019 02:52 PM INDEX NO. 750035/2018 NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 02/02/2019 "D" EXHIBIT FILED: RICHMOND COUNTY CLERK 02/02/2019 02:52 PM INDEX NO. 750035/2018 NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 02/02/2019 dh. NYSCEF - Richmond County Supreme Court Confirmation Notice This isan automated response for Supreme Court cases. The NYSCEF sitehas received your electronically fileddocuments forthe following case. 750035/2018 ESTHER DIPILATO - v.- ANDREW SCIBELLI et al Assigned Judge: Thomas P Aliotta Documents Received on 01/28/2019 01:34 PM Doc # Document Type Motion # 148 AFFIDAVIT OR AFFIRMATION IN OPPOSITION TO MOTION 001 Does not contain an SSN or CPI as defined in202.5(e) or 206.5(e) 149 EXHIBIT(S) 1 (Redacted per 202.5(e) or 206.5(e)) 001 150 EXHIBIT(S) 2 001 Does not contain an SSN or CPI as defined in202.5(e) or 206.5(e) 151 AFFIRMATION/AFFIDAVIT OF SERVICE 001 Does not contain an SSN or CPI as defined in202.5(e) or 206.5(e) Filing User Name: Herbert S Subin Phone #: 212-285-3800 E-mail Address: hs@subin!aw.com Fax #: Work Address: 150 Broadway 23rd Floor New York, NY 10038 Authorized Agent Name: Theresa Caruso Phone #: 2122853800 E-mail Address: tc@subinlaw.com Fax #: 2122853800 Firm/Business Name: Subin Associates, LLP Work Address: 150 BROADWAY 23rd floor NEW YORK, NY 10038 NYSCEF Resource Center - EFile@nycourts.gov Phone: (646) 386-3033 Fax: (212) 401-9146 Website: www.nycourts.gov/efile Page 1 of2 FILED: RICHMOND COUNTY CLERK 02/02/2019 02:52 PM INDEX NO. 750035/2018 NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 02/02/2019 NYSCEF - Richmond County Supreme Court Confirmation Notice 750035/2018 ESTHER DIPILATO - v.- ANDREW SCIBELLI et al Assigned Judge: Thomas P Aliotta E-mail Notifications An e-mail i70tificatici7 regarding thisfiling has been sent to the following address(es) on 01/28/2019 01:34 PM: DUNN, KELLEY ANN - kdenn‡|a=/.nyc.gov GOLD, JEFFREY B - jgeM goldstewart.com MCLELLAN, KENNETH ANDREW - mclellan.k@wss!!p_cnm ROUSSEL, KEITH ROBERT MARTIN -roussel.k@wss!!p.com SUBIN, HERBERT S - hs@esb!ñ!±w.com NOTE: Ifsubm!tting a working copy of this filingto the court, you must include as a notification page firmly affixed thereto a copy of this Confirmation Notice. NYSCEF Resource Center - EFile@iiyccurts.gov Phone: (646) 386-3033 Fax: (212) 401-9146 Website: www.nycourts.gov/efile Page 2 of 2 FILED: RICHMOND COUNTY CLERK 02/02/2019 02:52 PM INDEX NO. 750035/2018 NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 02/02/2019 File No.: 25319 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND -----------------------X ESTHER DIPILATO AFFIDAVIT IN Plaintiff, OPPOSITION to Sammo -against- Motion for Summary Judgment ANDREW SCIBELLI, SJ FUEL CO., ANTHONY INDEX #: 750035/2018 DIPILATO, ALFRED DOTTARIO, JR., AND SAMMO LLC., Defendants , --------------------------------------------------X ANDREW SCIBELLI AND SJ FUEL CO., INC., Third Party Plaintiff s, -against- THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF TRANSPORTATION, and NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION Third Party Defendants , -----------------------------------------X STATE OF NEW YORK ) COUNTY OF NEW YORK)SS.: Lee M. Huttner, Esq., being duly sworn, deposes and says, under the penalty of perjury and upon information and belief: That I am associated with the attorneys for the plaintiff, ESTHER DIPILATO herein and am familiar with the facts and circumstances herein, except as to those alleged upon information and belief, and as to those I verily believe them to be true. That I make this Affidavit in Opposition to the Motion dated January 8, 2019 on behalf of SAMMO LLC., seeking an order "granting Sammo LLC's motion for summary judgment FILED: RICHMOND COUNTY CLERK 02/02/2019 02:52 PM INDEX NO. 750035/2018 NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 02/02/2019 dismissing with prejudice Plaintiff's Complaint against Sammo LLC, and for such other, further and proper" different relief as the Court deems just and The motion seeking the drastic remedy of summary judgment and dismissal of the plaintiff Dipilato's complaint against SAMMO LLC (hereinafter SAMMO and/or movant) should be denied with prejudice. Alternatively, the summary judgment motion should be denied with leave to renew upon completion of discovery in this case. Denial of the motion proves the correct result upon finding movant's burden unsatisfied pursuant to CPLR section 3212 (b) and/or finding the motion premature pursuant to CPLR section 3212 (f). The following Exhibtis are attached hereto: 1. Complete copy of Plaintiff s September 2018 Opposition to Sammo application to Dismiss Support2 2. Copy of October 2018 Plaintiff Motion and Attorney Affidavit in (exhibits omitted but can be provided at request of Court) 3. Copy of Preliminary Conference Order dated January 22, 2019 Although denial of the drastic of judgment should result- at leastat this remedy summary juncture, to the extent thiscourt is inclined to grant the relief requested by Sammo in the motion dated January 8, 2019 with a Notice of Motion date of February 13, 2019, then the complaint of Esther Dipilato must remain intact as against co-defendants ANDREW SCIBELLI, SJ FUEL CO., ANTHONY DIPILATO, and ALFRED DOTTARIO, JR. SAMMO previously sought dismissal of the claims of plaintiff Dipilato before the above captioned action was transferred from Kings County to Richmond County. By Motion dated July Opposition to Sammo Supreme Kings - Dismissal Motion dated with a Notice Court, County July 17, 2018 of Motion September date of 17, 2018. 2 seekingan order:(1) grantingplaintiff EstherDipilatoleaveto servea late notice of claimupon THE CITY OF NEW YORK a/s/h/aTHE NEW YORK CITY DEPARTMENT OF TRANSPORTATION AND THE NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, and (2)forleave toamend the complainttoinclude claimson behalfof plaintiff EstherDipilato againstthe CITY defendants,and; leave (3) granting to plaintiff to amend the complaint toinclude claimsagainstMichael Marcus, Basso Landscaping, and Edward Philips, and; (4) foran order consolidatingthe abovecaptioned case withtherelatedcase bearingindex number 5 12538/2018, pending in Supreme Court,Kings County, and, (4)forsuch otherand furtherrelief in favorofplaintiff as thisCourt deems justand proper. FILED: RICHMOND COUNTY CLERK 02/02/2019 02:52 PM INDEX NO. 750035/2018 NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 02/02/2019 17, 2018 with a Notice of Motion date of September 17, 2018 in Supreme Court, Kings County, and Defendant SAMMO sought relief identical to that sought in the instant motion dated 1/8/19. Plaintiff filed and served opposition to same. A complete copy of plaintiff's Opposition from September 2018 is attached hereto as Exhibit "1". It is respectfully requested that the content of same be adopted and incorporated herein. It is also respectfully requested that any order granting SAMMO summary judgment also include relief in favor of Esther Dipilato adding the defendants named in the Third Party action as direct defendants in plaintiffEsther Dipilato's action, namely; THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF TRANSPORTATION, and NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION. A prior application was made requesting same relief on behalf of Plaintiff Dipilato in Supreme Court, Kings County. Upon information and belief, that application was not decided before venue was transferred3. A copy of that application (exhibits omitted for purposes of this motion out of respect for judicial economy) is attached hereto at Exhibit "2". "2" To the extent necessary, itis respectfully requested the content of Exhibit be adopted and incorporated herein. To the extent this Court is not inclined to grant the plaintiff such 'further and different relief' as included in the SAMMO Notice of Motion as against the defendants in the Third Party action, then it is respectfully requested that the SAMMO motion be denied, at least at this juncture. Upon information and belief, denial of the SAMMO Motion proves appropriate upon finding movant's prima facie burden unsatisfied in the first instance. Upon information and belief, denial of the SAMMO motion in the above captioned Dipilato action is appropriate to the extent that denial of any similar motion in the action bearing index number 1510036/2017 in the Scibelli action is appropriate. Upon information and belief, a request for dismissal on behalf of Sammo in that action is currently pending.[See, Paragraph #13, Attorney Affirmation with Sammo Motion]. "1" In addition to the opposition incorporated herein from Exhibit hereto, the below should provide additional grounds for denial of the dismissal SAMMO seeks. In Fermin v City of New York, 2010 NY Slip Op 51597(U) [28 Misc 3d 1235(A)] (Supreme Court, Kings County, 2010), the Court stated as follows; 3 Motion dated See, paragraph#14, Attorney Affirmation inSupport of Sammo January 8, 2019 FILED: RICHMOND COUNTY CLERK 02/02/2019 02:52 PM INDEX NO. 750035/2018 NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 02/02/2019 "Plaintiff punctured the sole of her right foot and fellon her right side on September 11, 2007 in front of 3420 Fulton Street in Brooklyn after stepping on the metal stump of a No Parking signpost located one and a half inches above the sidewalk and approximately 25 feet from the corner of Lincoln Avenue and Fulton Street. She claims chronic pain in her right foot and resulting difficulty walking and running from the trip and fall. She filed a notice of claim against the City on November 5, 2007 and then filed this action for her personal injuries from the fallagainst the City and Millennium on April 8, 2008. Millennium has rented the ground floor of 3420 Fulton Street, a mixed-use building, from itsowner, MMLC since 2004. Plaintiff claims that itwas the City's and Millennium's duty to maintain the southeast sidewalk corner of Lincoln defendants' Avenue and Fulton Street and that her personal injuries resulted solely from negligence, carelessness and recklessness. A plaintiff seeking to recover from the City for injuries caused by a defect in the sidewalk must show as a condition precedent to suitthat the City received prior written notice of the defect as required by the Administrative Code of the City of New York (NYC Administrative Code) § 7-201 (c) (2) (the Pothole Law). "A municipality that has enacted a prior written notice law is excused from liabilityabsent proof of thereto" prior written notice or an exception (Regan v Town of North Hampstead, 66 AD3d 863, Cin· 864 [2009]; Dia: v ofNew York. 56 AD3d 599, 600 [2008]).Here, the City states that itdid not receive any prior written notice of the metal stump that allegedly injured plaintiffs foot. It proffers deposition testimony by two New York City Department of Transportation (DOT) employees, Mr. Joseph Lorenzo and Ms. Stacey Williams, and documentary evidence as a prima facie showing in support of its motion.Mr. Lorenzo, the DOT's Deputy Borough Engineer for Brooklyn, testified (at pages 12-13 of his deposition) that the City received a complaint on November 29, 2006 about a stump of a signpost in the sidewalk on theeastern side of Lincoln Avenue between Fulton Street and Atlantic Avenue. He explained that the records indicate that a contractor removed the stump and installed a new No Parking signpost and sign on December 5, 2006, but thereafter, the City had no written notice that the No Parking signpost was allegedly knocked down again until after plaintiffs injury.In addition, Ms. Williams, a Record Searcher and Testifier at the DOT, described in her testimony the results of a search she performed in connection with the case regarding the Lincoln Avenue sidewalk between Fulton Street and Atlantic Avenue. She testified (at pages 10-13 and 18-19 of her deposition) that, other than the December 5, 2006 job, the City has no record of applications for permits, permits, violations, contracts, complaints or repair orders between September 11, 2005 and September 11, 2007. The City therefore has made a successful prima facie showing that itreceived no prior written notice that the No Parking signpost had been knocked down again until afterplaintiffs injury. Ms. Williams' Lorenzo' and Mr. respective deposition testimony and documentary evidence together provide facts that clearly establish that the City did not receive any written notice about the metal stump of the knocked-down No Parking signpost after December 5, 2006 and before plaintiffs accident. Equally significant, the plaintiff has voiced no challenge in response to any facts in Williams' either Ms. or Mr. Lorenzo's testimony, and, therefore, plaintiff may be deemed to have admitted the facts therein (see Zientek v State 222 AD2d 1041, 1042 [1995]. appeal dismissed87 [1996]).G NY2d 1054 [1996], cert denied519 US 862 Once the City has made a prima facie showing that a plaintiff has not met the written notice requirement, such plaintiff may stilldefeat summary judgment by establishing either that the particular condition constituted a special use resulting in a special benefit to the City, or that the City affirmatively caused or created the defect by performing work that immediately resulted in the existence of a dangerous condition FILED: RICHMOND COUNTY CLERK 02/02/2019 02:52 PM INDEX NO. 750035/2018 NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 02/02/2019 (see Yarborough v Cin of New York, 10 NY3d 726, 728 [2008]).Plaintiff claims thatin this case the No Parking sign and signpost, even though missing, provided a special use tothe City because the City could fine motorists who parked their vehicles at that location at a prohibited time. However, the Court of Appeals has observed that "the special use exception is reserved for situations where a landowner whose property abuts a public street or sidewalk derives a special benefit from that property unrelated to public use, and is therefore required to maintain a portion property" of that (Poirier v City ofSchenectady, 85 NY2d 310, 315 [1995] [emphasis added]). Traffic signs and their posts and anchors do not qualify as a special use tothe City as "[t]raffic signs are intended to promote the orderly flow of vehicular and pedestrian traffic, and the posts and anchors are generally maintained by the municipality in the discharge of itsduty to create streets" safe (id.).Plaintiffs attempt to distinguish Poirier as limited to vehicular and pedestrian traffic signs and not, as here, parking signs is unavailing. The Appellate Division, First Department held in Bisulco v City ofNew York(186 AD2d 84, 85 [1992]) that an "IAS Court erred in finding that the installation of a parking sign on a city street is a special use bringing it out of the mandate of the statute [i.e.. the Pothole Law]."Plaintiff also argues that a triableissue of fact remains whether the City possibly caused or created the dangerous metal stump on the sidewalk because itdoes not argue or maintain that itdid not remove, knock down or cut off the Williams' No Parking signpost and leftonly the metal stump. However, Mr. Lorenzo's and Ms. respective deposition testimony eliminate this issue by establishing that the City never issued a repair order to remove the No Parking signpost after itwas replaced on December 5, 2006 and that there were no subsequent written notices on record for the subject location.Plaintiff in her final argument contends that the dangerous condition at issue is outside the Pothole Law's scope, which she claims, concerns only physical defects in the sidewalk, such as holes, cracks and raised or misleveled concrete slabs. plaintiffs cited case law" fails to support this However, argument and simply establishes that the Pothole Law is inapplicable to defective or poorly "Stop" maintained signs. Rather, itis well settled that the stump of a metal signpost anchor protruding from the sidewalk constitutes a condition for which prior written notice is required under the Pothole Law (see Amabile v City ofBuffalo, 93 NY2d 471, 475 [1999] [prior notice applies to 10-inch remnant of signpost protruding from sidewalk]; Poirier v City ofSchenectady, 85 NY2d at 314 [prior notice applies to four-inch traffic sign post anchor protruding from sidewalk]). A party seeking to join an additional party rnay, pursuant to CPLR 3025 (b),amend or supplement the complaint by leave of the court, but the movant must strictly comply with CPLR 1003, which provides that "[p]arties may be added at any stage of the action by leave of ." court or by stipulation of allparties who have appeared . . "[N]oncompliance renders the pleadings jurisdictionally defective (Perez v Paramount Communications, 92 NY2d 749, 753 [1999]; see also Nikolic v Federation Empt. & Guidance Serv . Inc.. 18 AD3d 522, 524 [2005] ["plaintiffs service of the amended summons and complaint was a nullity since he served these papers without leave of court or a stipulation of the parties in accordance with CPLR 3025 ["plaintiffs' (b)"]; Yadeger v International Food Mkt., 306 AD2d 526, 526 [2003] failure to follow (CPLR 1003) before service of their supplemental summons and amended complaint constituted a jurisdictional defect requiring dismissal of the action against the new party defendants"]).Here, plaintiff seeks to add MMLC as a defendant by leave of this court. The moving papers note that plaintiff only learned that MMLC was the owner of the property at the time of her accident through the July 24, 2009 deposition testimony of Mr. Rahman, tenant Millennium's President. Plaintiff claims that MMLC would suffer no prejudice by the amendment of the complaint.However, plaintiff has failed to serve itsmotion papers upon FILED: RICHMOND COUNTY CLERK 02/02/2019 02:52 PM INDEX NO. 750035/2018 NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 02/02/2019 MMLC, the proposed new defendant. More significantly, though, plaintiff mistakenly seeks to impose liabilityupon MMLC. NYC Administrative Code § 7-210, applicable to sidewalk-defect accidents occurring on or afterSeptember 14, 2003, shifted liabilityfor sidewalk accidents in most instances from the [*5]City to abutting land owners.®31Nonetheless, the Appellate Division, First Department held on July 1, 2010 in Smith v 125th St. Gateway Ventures, LLC (75 sidewalk' AD3d 425, 425 [2010]) that "a city sign or signpost is not part of the forpurposes of section 7-210 of the Administrative Code of the City of New York, which imposes tort liability condition" on property owners who fail to maintain city-owned sidewalks in a reasonably safe (see also Calise v Millennium Partners, 26 Misc 3d 1222[A], 2010 NY Slip Op 50208[U] [2010] [plaintiff tripped and fell on a piece of protruding metal that was from a signpost bearing a No Parking or No Standing sign; landowner "as a matter of law ...isnot liable for the defective condition of a city-owned and maintained sign post"] ; Sehnert v New York City Transit Authority, 2009 NY Slip Op 32807[U] ["(g)enerally, liability for a city sign post lieswith the City, and not with the landlord or tenant"]; King v Alltom Props., Inc., 16 Misc 3d 1125[A], 2007 NY Slip Op 51570[U] [2007] [1andowner bears no obligation to maintain City signpost]). Indeed, New York City Charter § 2903 (a) (2) obligates the City, through itsDepartment of Transportation to "control, install and maintain ...any and all signs, signals, marking, and similar devices ...for guiding, directing or otherwise regulating and controlling vehicular and pedestrian trafficin the streets."In addition, the signpost fails to qualify as a special use to the owner. Parking' Standing' MMLC, like the owner in Calise, "had no power to either install a No or No sign or to remove such a sign that was installed by the City. That some benefit may have flowed to [the owner] is notthe determinative factor. There must be control over the installed object in order to impute liability to [the owner] under a theory of special use, and that has not been here" shown (Calise v Millennium Partners, 2010 NY Slip Op 50208[U], *3). Consequently, the above analysis shows that plaintiff s proposed amendment to add MMLC, the building owner, as a co-defendant lacks merit and warrants denial. The above analysis equally warrants granting tenant Millennium's summary judgment motion. No statutory duty applies herein to either Millennium or MMLC, and plaintiff does not contend that Millennium created the dangerous condition of the sidewalk nor caused the condition through special use. Plaintiff does argue that Millennium bears liabilityfor failing to notify the City or MMLC of the metal stump because Mr. Rahman, Millennium's President, voluntarily assumed a duty to act "in a reasonably prudent manner" by calling 311 twice to notify the City before the accident about a hole in the street in front of his store. However, Mr. Rahman's telephone calls failto constitute assumption of a voluntary duty. The Court of Appeals noted in Waters v New York City Housing Authority (69 NY2d 225, 230 [1987]) that the extent of control that a defendant has over the ultimate injuries incurred by a plaintiff constitutes an important issue in determining the scope of a defendant's duty. Here, the City, not Millennium, controls the signpost repair and no liabilitycould extend to plaintiff from Mr. Rahman's phone notifications to the City (see Matter of New York State Silicone Breast Implant Litig., 166 Misc 2d 299 [NY County, 1995], affd 227AD2d 310, 311 [1996], appeal dismissed 89 NY2d 889 [1996]). Accordingly, itis ORDERED that defendant City's summary judgment motion is granted; and itis further ORDERED that plaintiffs motion to amend her complaint and add MMLC as a co-defendant is denied; and itis further ORDERED that defendant Millermium's summary judgment motion is granted.This constitutes the decision, order and judgment of this court". [Emphasis added]. FILED: RICHMOND COUNTY CLERK 02/02/2019 02:52 PM INDEX NO. 750035/2018 NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 02/02/2019 While the Kings County Fermin decision (supra) cannot control especially since same involves a pedestrian injured using a sidewalk and thus, is factually distinguishable from the passenger Esther Dipilato in the instant case, language in the decision in bold/emphasized above should underscore the failure of SAMMO to eliminate issues of fact as to control over the plant lifethat obstructed the stop sign. At this juncture, discovery in the Dipilato action has not meaningfully taken place. No depositions have bene conducted to date, upon information and belief. Before the drastic remedy of dismissal results in favor of Sammo, depositions of all parties should take place, and to the extent necessary, plaintiff should be permitted to present a full record in thiscase including FOIL results and deposition transcripts to an expert to analyze whether thè condition of the tree/shrubbery constituted a condition so inherently dangerous as to necessitate the removal of the trees/plant/shrubbery and whether same were in such close proximity to the accident location to constitute an unreasonable danger. Compare/Contrast; In Soto v. City of New York, 63 A.D.3d 1035 (2nd Dep't 2009), Herman Soto was driving his car on Highland Boulevard in Highland Park, Brooklyn. To avoid an oncoming car Soto swerved and collided with a tree that was located four and a half feet from the roadway. There were guardrails on that portion of the road, but the tree was located between the road and the guardrail. Soto argued that the guardrails were defectively installed because they would not prevent a car from striking the tree. The court found that the guardrails were designed to prevent entry into the park, not to prevent collisions with trees. The existence of trees so close to the roadway "did not give rise to a condition so inherently dangerous as to necessitate the erection of trees." guardrails or the removal of Id. at 1037. The case was dismissed as a matter of law. FILED: RICHMOND COUNTY CLERK 02/02/2019 02:52 PM INDEX NO. 750035/2018 NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 02/02/2019 To the extent the parties have not been deposed to ascertain any knowledge of any prior accidents at the location, same should reflect that summary judgment may be correctly denied pursuant to CPLR section 3212 (f).Compare/Contrast; Hav v. State of New York, 60 A.D.3d 1190 (3rd Dep't 2009) (driver swerved to avoid deer and hittree stump three feet from roadway surface). On January 22, 2019 a Preliminary Conference was held in the above captioned action in Supreme Court, Richmond County. A copy of the order from said conference is attached hereto at Exhibit "3". Upon information and belief, questions exist as to whether depositions with the defendants in the Dipilato action, the related Scibelli action (index number 151036/2017) and/or the Third Party action, would lead to relevant evidence in the instant action should favor denial of the SAMMO motion pursuant to CPLR section 3212 (f).See; Martinez v 305 W. 52 Condominium, 128 AD3d 912, 914 (2nd Dept., 2015) ["A party should be afforded a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment.... the Supreme Court properly denied the motion and cross motions for summary judgment to the extent indicated above, as premature, since further discovery may lead to relevant evidence, although the denial should have been without prejudice to renew upon the completion of discovery"]4. To the extent that SAMMO cannot show that plaintiff has had a reasonable opportunity to engage in discovery with the defendants in the above captioned actions regarding the exercise of control and/or existence of agreement(s) or contract(s) regarding duties related to the stop sign, accident, and shrubbery, and conduct discovery (now that venue has been decided) related to such duties that bear upon liability questions in the instant case, then at least questions exist as to 4 Emphasis added FILED: RICHMOND COUNTY CLERK 02/02/2019 02:52 PM INDEX NO. 750035/2018 NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 02/02/2019 whether facts exist that would support denial of the Sammo motion but cannot be stated at this juncture. Accordingly, the Sammo motion should be denied. However, ifgranted, the order granting same should afford plaintiff Dipilato the relief sought as against the Third Party "2" defendants/municipal defendants and/or relief sought as set forth in Exhibit of this Opposition. WHEREFORE, itis respectfully requested that the motion by SAMMO LLC., dated January 8, 2019 , be denied in all respects, and together with such other and further relief in favor of plaintiff as to this Honorable Court may seem just an pr per. Lee uttner, Esq. UBIN ASSOCIATES, LLP Attomey for Plaintiff 23rd 150 Broadway, flOOr New York, N.Y. 10038 (212) 285-3800 Sworn to before me this 28* day of, January, 2019 Notary Public GWzkaEahankukmi Commieskmer of Deeds, City of New Wik No.02-14248 C :a, 04