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FILED: RICHMOND COUNTY CLERK 08/08/2022 01:41 PM INDEX NO. 152018/2020
NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 08/08/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
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VICTOR CALDERON, STATEMENT OF
MATERIAL FACTS
Plaintiff,
Index No. 152018/2020
-against-
Hon. Lizette Colon
HOLIDAY VILLAS AT OAKWOOD HOMEOWNERS
ASSOCIATION, INC., CHRISTINA FALGIANO, and
J.K.S., INC. d/b/a J&K LANDSCAPING,
Defendants.
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Pursuant to the Uniform Rules for the Supreme Court and the county Court §202.8-g,
defendant J.K.S., INC. d/b/a J&K LANDSCAPING (“hereinafter J.K.S.) submits this Statement
of Material Facts as to which there is no material issue of fact to be tried with respect to the
within Motion for Summary Judgment pursuant to CPLR §3212.
1. The subject incident occurred on May 25, 2020, at 21 Garth Lane in Staten Island,
New York (F, 16- 17).
2. 21 Garth Lane is located within the Holiday Villas Condominium Complex, as testified
to by Sheryl Iavarone, the property manager for the Holiday Villas. (I, 11, 14-15).
3. Ms. Iavarone notes that both the front lawns, and walkways are considered common
areas, this includes the front lawn in front of 21 Garth Court, Staten Island NY (I, 13).
4. Holiday Villas was solely responsible for maintaining the common areas, including
maintaining the lawn and areas outside in front of 21 Garth Court, Staten Island NY as of the
date of this incident, May 25, 2020 (I, 13).
5. As of the date of this incident, Holiday Villas did have a valid contract with J.K.S. (I,
16-17). Ms. Iavarone identified the contract between J.K.S. and the Holiday Villas which she
signed on their behalf. (I, 47-49) (G, 11-12, 26).
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FILED: RICHMOND COUNTY CLERK 08/08/2022 01:41 PM INDEX NO. 152018/2020
NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 08/08/2022
6. The contract has no provisions for contractual indemnification or for naming Holiday
Villas as an additional insured on J.K.S.’s insurance.(K)
7. As part of their work, J.K.S. maintains the grass, including cutting grass, edging grass
and cleaning up as well as spot seeding at the Holiday Villas (G, 12-13). Mr. Schaffer has no
recollection of the edge work adjacent to the walkway in front of 21 Garth Court prior to May
25, 2020, and he is unfamiliar with the grade of that area and indicated that there was no concrete
work ever performed in that location to his recollection and that any grade of the land was as a
result of the way the builder built the location (G, 22).
8. Mr. Schaffer testified and was not controverted in that testimony that the only creating
that J.K.S. had provided was after the accident occurred at the request of Ms. Iavarone (G, 13).
9. Ms. Iavarone, on behalf of the Holiday Villas had the authority to direct, supervise and
control the work being performed by landscapers in the common areas involving the lawn and
walkways; she would also handle resident complaints and act as the intermediary between the
Board and the residents (I, 17-18).
10. Ms. Iavarone, is unaware of any complaints being made about the walkway and grass
area in front of 21 Garth Court, prior May 25, 2020 (I, 22).
11. The accident occurred in front of Ms. Falgiano’s home, on the grass adjacent to the
walkway leading to the front door. (F, 26).
12. Plaintiff stepped backwards off of the walkway without looking, (H, 16-17), (F, 51)
to maintain social distancing with an approaching child and his foot got caught in a gap where
the grass met the sidewalk (F, 27, 35) because he claims that the grass was not level with the
sidewalk(F, 28). He never observed a height difference on other occasions (F, 29-31). Ms.
Falgiano only noticed that there was a height differential between the walkway and the grass
adjacent to the walkway after plaintiff fell (H, 16-17).
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FILED: RICHMOND COUNTY CLERK 08/08/2022 01:41 PM INDEX NO. 152018/2020
NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 08/08/2022
Dated: Elmsford, New York
August 8, 2022
Yours, etc.,
________________________________________
JAMES C. MILLER, ESQ.
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Preview
FILED: RICHMOND COUNTY CLERK 08/08/2022 01:41 PM INDEX NO. 152018/2020 NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 08/08/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND --------------------------------------X VICTOR CALDERON, STATEMENT OF MATERIAL FACTS Plaintiff, Index No. 152018/2020 -against- Hon. Lizette Colon HOLIDAY VILLAS AT OAKWOOD HOMEOWNERS ASSOCIATION, INC., CHRISTINA FALGIANO, and J.K.S., INC. d/b/a J&K LANDSCAPING, Defendants. --------------------------------------X Pursuant to the Uniform Rules for the Supreme Court and the county Court §202.8-g, defendant J.K.S., INC. d/b/a J&K LANDSCAPING (“hereinafter J.K.S.) submits this Statement of Material Facts as to which there is no material issue of fact to be tried with respect to the within Motion for Summary Judgment pursuant to CPLR §3212. 1. The subject incident occurred on May 25, 2020, at 21 Garth Lane in Staten Island, New York (F, 16- 17). 2. 21 Garth Lane is located within the Holiday Villas Condominium Complex, as testified to by Sheryl Iavarone, the property manager for the Holiday Villas. (I, 11, 14-15). 3. Ms. Iavarone notes that both the front lawns, and walkways are considered common areas, this includes the front lawn in front of 21 Garth Court, Staten Island NY (I, 13). 4. Holiday Villas was solely responsible for maintaining the common areas, including maintaining the lawn and areas outside in front of 21 Garth Court, Staten Island NY as of the date of this incident, May 25, 2020 (I, 13). 5. As of the date of this incident, Holiday Villas did have a valid contract with J.K.S. (I, 16-17). Ms. Iavarone identified the contract between J.K.S. and the Holiday Villas which she signed on their behalf. (I, 47-49) (G, 11-12, 26). -1- TMB-ERIE-00216/2772829/Pleadings /JCM/jvm 1 of 3 FILED: RICHMOND COUNTY CLERK 08/08/2022 01:41 PM INDEX NO. 152018/2020 NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 08/08/2022 6. The contract has no provisions for contractual indemnification or for naming Holiday Villas as an additional insured on J.K.S.’s insurance.(K) 7. As part of their work, J.K.S. maintains the grass, including cutting grass, edging grass and cleaning up as well as spot seeding at the Holiday Villas (G, 12-13). Mr. Schaffer has no recollection of the edge work adjacent to the walkway in front of 21 Garth Court prior to May 25, 2020, and he is unfamiliar with the grade of that area and indicated that there was no concrete work ever performed in that location to his recollection and that any grade of the land was as a result of the way the builder built the location (G, 22). 8. Mr. Schaffer testified and was not controverted in that testimony that the only creating that J.K.S. had provided was after the accident occurred at the request of Ms. Iavarone (G, 13). 9. Ms. Iavarone, on behalf of the Holiday Villas had the authority to direct, supervise and control the work being performed by landscapers in the common areas involving the lawn and walkways; she would also handle resident complaints and act as the intermediary between the Board and the residents (I, 17-18). 10. Ms. Iavarone, is unaware of any complaints being made about the walkway and grass area in front of 21 Garth Court, prior May 25, 2020 (I, 22). 11. The accident occurred in front of Ms. Falgiano’s home, on the grass adjacent to the walkway leading to the front door. (F, 26). 12. Plaintiff stepped backwards off of the walkway without looking, (H, 16-17), (F, 51) to maintain social distancing with an approaching child and his foot got caught in a gap where the grass met the sidewalk (F, 27, 35) because he claims that the grass was not level with the sidewalk(F, 28). He never observed a height difference on other occasions (F, 29-31). Ms. Falgiano only noticed that there was a height differential between the walkway and the grass adjacent to the walkway after plaintiff fell (H, 16-17). -2- TMB-ERIE-00216/2772829/Pleadings /JCM/jvm 2 of 3 FILED: RICHMOND COUNTY CLERK 08/08/2022 01:41 PM INDEX NO. 152018/2020 NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 08/08/2022 Dated: Elmsford, New York August 8, 2022 Yours, etc., ________________________________________ JAMES C. MILLER, ESQ. -3- TMB-ERIE-00216/2772829/Pleadings /JCM/jvm 3 of 3