Preview
FILED: KINGS COUNTY CLERK 03/04/2021 03:35 PM INDEX NO. 523020/2020
NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 03/04/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
SARAH M. LANZA,
Plaintiff Index No.: 523020/2020
-against- AFFIRMATION IN
REPLY
SANTO MERCEDES BAEZ
and GUMA CONSTRUCTION,
De fendants.
RUBEN DAVIDOFF, ESQ., an attorney duly admitted to practice law before the courts
of the State of New York, hereby affirms and says the following under penalties of perjury:
1. I am the Principal of the law offices of THE LAW OFFICE OF DAVIDOFF &
ASSOCIATES P.C., attorney for the plaintiff in the above entitled action, and as such I am fully
familiar with the facts and circumstances herein through a review of this matter's legal file and
discussions with plaintiff.
Defendants'
2. This affirmation is submitted in reply to the opposition to Plaintiff's
motion for partial summary judgment as to the issue of liability.
Defendants'
3. The opposition has not raised and/or uncovered a genuine issue of
fact, and has not provided a reason to believe that an issue of fact may exist either.
4. Also, it further appears that Defendants do not attempt to put whether Plaintiff
made a prima facie showing of entitlement to summary judgment in issue.
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5. Defendant's opposition is an incorrect assertion that Plaintiff's motion is
premature based on their mere hope and speculation that evidence sufficient to defeat plaintiff's
motion might be uncovered during discovery. This does not come close to forming a sufficient
basis to deny Plaintiff's motion.
6. CPLR Section 3212(a) allows for a party to move for summary judgment as soon
as joinder has occurred. Summary Judgment is designed to allow the Court to determine whether
factual issues exist. If there is no factual issue by the opposing party, by proof in admissible
form, then the issue must be resolved in favor of the moving party. In light of the foregoing, it is
respectfully submitted that the plaintiff's motion for summary judgment on the issue of liability
should be granted against the defendant herein.
7. Defendant's opposition also includes an affidavit of the General Manager of
Defendant GUMA CONSTRUCTION alleging he was told via telephone by Defendant SANTO
MERCEDES BAEZ that Plaintiff was not injured. This is a baseless and unsubstantiated
allegation which touches on the issue of Plaintiff s damages sustained, and does not come close
to forming a sufficient basis to deny Plaintiff's motion for Summary Judgment on the issue of
Liability.
8. Consistently, an on point decision of the Supreme Court of the State of New
York, County of Queens sets forth:
"Further, the lack of disclosure does not excuse the failure
of the party with personal knowledge, Butler, to submit an
affidavit in opposition to the motion (see Rainford v Han,
18 AD3d 638 [2d Dept. 2005] citing Niyazov v Bradford, 13
AD3d 501 [2d Dept. 2004]). Lastly, the argument that the
motion for summary judgment is premature is without merit.
Butler himself has personal knowledge of the relevant facts,
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but failed to submit an affidavit or deny the accuracy of
Collazo's affidavit. Additionally, the non-moving parties fail to
offer any evidentiary basis to suggest that discovery may
lead to relevant evidence. The mere hope and speculation
that evidence sufficient to defeat the motion might be
uncovered during discovery is an insufficient basis upon
which to deny the motion (see CPLR 3212[f]; Medina v
Rodriguez, 92 AD3d 850 [2d Dept. 2012]; Hanover Ins. Co.
V Prakin, 81 AD3d 778 [2d Dept. 2011]; Essex Ins. Co. v Michael
Cunningham Carpentry, 74 AD3d 733 [2d Dept. 2010];
Peerless Ins. Co. v Micro Fibertek, Inc., 67 AD3d 978
2003])."
[2d Dept. 2009]; Gross v Marc, 2 AD3d 681 [2d Dept.
Navarro v Butler 2017 NY Slip Op 50285(U) (Supreme Court,
County of Queens) Decided on February 27, 2017.
9. Accordingly, as set forth in the aforesaid slip-op decision of the Supreme Court of
the State of New York, County of Queens, the clear law is "hope and speculation that evidence
sufficient to defeat the motion might be uncovered during discovery [is] an insufficient basis to
deny [this] motion". Essex Ins. Co. v Michael Cunningham Carpentry, 74 AD3d [2d Dept.
2010].
10. The plaintiff remains entitled to an award of summary judgment on the issue of
liability pursuant to the well settled and consistent law of the Second Department's as
demonstrated above.
Wherefore, may this honorable court grant Plaintiff's motion for summary
judgment as to liability in all respects, and for such other and further relief as to which this
honorablecourt deems just and proper.
Dated: Forest Hills, NewYork
March 4, 2021
RUBEN DAVIDOFF, ESQ
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NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 03/04/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
_________._-________________. ¬-----X
SARAH LANZA, Index No.: 523020/2020
Plaintiff(s),
-against-
ATTORNEY'S
AFFIRMATION
OF SERVICE
SANTO MERCEDES BAEZ
and GUMA CONSTRUCTION,
Defendant(s).
-- ---------- X
Ruben Davideff, Esq., an attorney duly admined to practice law before the Courts of this State,
duly affirms the following under the penalties of perjury pursuant to CPLR § 2106:
That I am over the age of 18 and maintain offices in Queens, New York.
That I am not a party to the above-captioned action.
That on the day of March, 2021, I served a copy of the AFFIRMATION IN REPLY,
on:
LAW OFFICE OF KEVIN J.PHILBIN
Attorneys for Defendants
SANTO MERCEDES BAEZ and
GUMA CONSTRUCTION
One Whitehall Street, 13th Floor
New York, New York 10004-2109
(212) 248-9100
By e-filing a true copy of the attached documents via the NYSCEF.
Dated: Forest Hills, New York
March 4, 2021
Yours, etc.,
Ruben Davidoff, Esq.
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
SARAH LANZA,
Plaintiff(s),
- against -
SANTO MERCEDES BAEZ
and GUMA CONSTRUCTION,
Defendant(s).
Index No.: 523020/2020
AFFIRMATION IN REPLY
Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of
New York State, certifies that, upon information and belief and reasonable inquiry, the contentions
contained in the annexed document are not frivolous.
Dated: March 4, 2021
Signature
Print Signer's Name: By: R_UBEN DAVIDOFF. ESO.
THE LAW FIRM OF DAVIDOFF & ASSOCIATES
Attorneys for Plaintiff(s)
Suite 404
108-18 Queens Blvd.
Forest Hills, NY 11375
(718) 268-8800
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Preview
FILED: KINGS COUNTY CLERK 03/04/2021 03:35 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 03/04/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS SARAH M. LANZA, Plaintiff Index No.: 523020/2020 -against- AFFIRMATION IN REPLY SANTO MERCEDES BAEZ and GUMA CONSTRUCTION, De fendants. RUBEN DAVIDOFF, ESQ., an attorney duly admitted to practice law before the courts of the State of New York, hereby affirms and says the following under penalties of perjury: 1. I am the Principal of the law offices of THE LAW OFFICE OF DAVIDOFF & ASSOCIATES P.C., attorney for the plaintiff in the above entitled action, and as such I am fully familiar with the facts and circumstances herein through a review of this matter's legal file and discussions with plaintiff. Defendants' 2. This affirmation is submitted in reply to the opposition to Plaintiff's motion for partial summary judgment as to the issue of liability. Defendants' 3. The opposition has not raised and/or uncovered a genuine issue of fact, and has not provided a reason to believe that an issue of fact may exist either. 4. Also, it further appears that Defendants do not attempt to put whether Plaintiff made a prima facie showing of entitlement to summary judgment in issue. 1 1 of 5 FILED: KINGS COUNTY CLERK 03/04/2021 03:35 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 03/04/2021 5. Defendant's opposition is an incorrect assertion that Plaintiff's motion is premature based on their mere hope and speculation that evidence sufficient to defeat plaintiff's motion might be uncovered during discovery. This does not come close to forming a sufficient basis to deny Plaintiff's motion. 6. CPLR Section 3212(a) allows for a party to move for summary judgment as soon as joinder has occurred. Summary Judgment is designed to allow the Court to determine whether factual issues exist. If there is no factual issue by the opposing party, by proof in admissible form, then the issue must be resolved in favor of the moving party. In light of the foregoing, it is respectfully submitted that the plaintiff's motion for summary judgment on the issue of liability should be granted against the defendant herein. 7. Defendant's opposition also includes an affidavit of the General Manager of Defendant GUMA CONSTRUCTION alleging he was told via telephone by Defendant SANTO MERCEDES BAEZ that Plaintiff was not injured. This is a baseless and unsubstantiated allegation which touches on the issue of Plaintiff s damages sustained, and does not come close to forming a sufficient basis to deny Plaintiff's motion for Summary Judgment on the issue of Liability. 8. Consistently, an on point decision of the Supreme Court of the State of New York, County of Queens sets forth: "Further, the lack of disclosure does not excuse the failure of the party with personal knowledge, Butler, to submit an affidavit in opposition to the motion (see Rainford v Han, 18 AD3d 638 [2d Dept. 2005] citing Niyazov v Bradford, 13 AD3d 501 [2d Dept. 2004]). Lastly, the argument that the motion for summary judgment is premature is without merit. Butler himself has personal knowledge of the relevant facts, 2 2 of 5 FILED: KINGS COUNTY CLERK 03/04/2021 03:35 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 03/04/2021 but failed to submit an affidavit or deny the accuracy of Collazo's affidavit. Additionally, the non-moving parties fail to offer any evidentiary basis to suggest that discovery may lead to relevant evidence. The mere hope and speculation that evidence sufficient to defeat the motion might be uncovered during discovery is an insufficient basis upon which to deny the motion (see CPLR 3212[f]; Medina v Rodriguez, 92 AD3d 850 [2d Dept. 2012]; Hanover Ins. Co. V Prakin, 81 AD3d 778 [2d Dept. 2011]; Essex Ins. Co. v Michael Cunningham Carpentry, 74 AD3d 733 [2d Dept. 2010]; Peerless Ins. Co. v Micro Fibertek, Inc., 67 AD3d 978 2003])." [2d Dept. 2009]; Gross v Marc, 2 AD3d 681 [2d Dept. Navarro v Butler 2017 NY Slip Op 50285(U) (Supreme Court, County of Queens) Decided on February 27, 2017. 9. Accordingly, as set forth in the aforesaid slip-op decision of the Supreme Court of the State of New York, County of Queens, the clear law is "hope and speculation that evidence sufficient to defeat the motion might be uncovered during discovery [is] an insufficient basis to deny [this] motion". Essex Ins. Co. v Michael Cunningham Carpentry, 74 AD3d [2d Dept. 2010]. 10. The plaintiff remains entitled to an award of summary judgment on the issue of liability pursuant to the well settled and consistent law of the Second Department's as demonstrated above. Wherefore, may this honorable court grant Plaintiff's motion for summary judgment as to liability in all respects, and for such other and further relief as to which this honorablecourt deems just and proper. Dated: Forest Hills, NewYork March 4, 2021 RUBEN DAVIDOFF, ESQ 3 3 of 5 FILED: KINGS COUNTY CLERK 03/04/2021 03:35 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 03/04/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS _________._-________________. ¬-----X SARAH LANZA, Index No.: 523020/2020 Plaintiff(s), -against- ATTORNEY'S AFFIRMATION OF SERVICE SANTO MERCEDES BAEZ and GUMA CONSTRUCTION, Defendant(s). -- ---------- X Ruben Davideff, Esq., an attorney duly admined to practice law before the Courts of this State, duly affirms the following under the penalties of perjury pursuant to CPLR § 2106: That I am over the age of 18 and maintain offices in Queens, New York. That I am not a party to the above-captioned action. That on the day of March, 2021, I served a copy of the AFFIRMATION IN REPLY, on: LAW OFFICE OF KEVIN J.PHILBIN Attorneys for Defendants SANTO MERCEDES BAEZ and GUMA CONSTRUCTION One Whitehall Street, 13th Floor New York, New York 10004-2109 (212) 248-9100 By e-filing a true copy of the attached documents via the NYSCEF. Dated: Forest Hills, New York March 4, 2021 Yours, etc., Ruben Davidoff, Esq. 4 4 of 5 FILED: KINGS COUNTY CLERK 03/04/2021 03:35 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 03/04/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS SARAH LANZA, Plaintiff(s), - against - SANTO MERCEDES BAEZ and GUMA CONSTRUCTION, Defendant(s). Index No.: 523020/2020 AFFIRMATION IN REPLY Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of New York State, certifies that, upon information and belief and reasonable inquiry, the contentions contained in the annexed document are not frivolous. Dated: March 4, 2021 Signature Print Signer's Name: By: R_UBEN DAVIDOFF. ESO. THE LAW FIRM OF DAVIDOFF & ASSOCIATES Attorneys for Plaintiff(s) Suite 404 108-18 Queens Blvd. Forest Hills, NY 11375 (718) 268-8800 5 5 of 5