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FILED: KINGS COUNTY CLERK 12/20/2021 02:54 PM INDEX NO. 519697/2018
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/20/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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JAHARY CANTO, Index No. 519697/2018 (ECF)
Plaintiff
RULE 202.8 STATEMENT OF
v. UNDISPUTED FACTS
CINE MAGIC EAST RIVER STUDIOS, LLC and
JAVA LANDING, LLC AND THE CITY OF NEW
YORK,
Defendants
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Defendant, Cine Magic East River Studios, LLC, hereby submits this statement pursuant
to Rule 202.8-g of the Uniform Civil Rules for the Supreme Court and states that the following
are material facts as to which there is no genuine issue to be tried:
1. On October 10, 2017, Plaintiff Jahary Canto (“Plaintiff”) was working as a
parking assistant for non-party, EnteExhibit rtainment Partners, a subcontractor in the business of
filming movies and commercials (Exhibit “A”, p. 6). Plaintiff’s alleged accident occurred at
approximately 5:40 a.m. on that date, in the roadway abutting the property located at 33 Kent
Avenue, Brooklyn, New York (Exhibit “A”, p. 7; Exhibit “E”). Plaintiff had been working since
3p.m. the day before (Exhibit “A”, p. 9).
2. At the 50-H hearing, Plaintiff unequivocally testified that his accident occurred in
the roadway, not on the sidewalk (Exhibit “A”, p. 8). The questioning proceeded as follows:
Q: Did the accident take place on a sidewalk, a roadway, a curb, or somewhere else?
A: Roadway.
Q: Was that roadway Kent Avenue?
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A: Yes.
(Exhibit “A”, p. 8).
3. Plaintiff described the condition that he fell on as “the edge of the crack of a
crater” in the roadway which took his “whole ankle to the left” when he stepped on it (Exhibit
“A”, p. 10). The crater was approximately four to six inches deep and one and a half feet wide
(Exhibit “A”, p. 11-12). Plaintiff identified photographs of the crater where he fell at his 50-H
hearing (See Exhibit “A”, pp. 39-44)1.
4. Defendant/Movant, Cine Magic East River Studios, LLC (“Cine Magic”) leases
the premises located at 33 Kent Street, Brooklyn, New York (See Cine Magic’s Lease for 11
Kent Street, a copy of which is annexed as Exhibit “I”; see also Affidavit of Petros Kapsalis,
CEO and Managing Member of Cine Magic, annexed as Exhibit “J”). The owner of the
premises adjacent to the roadway, including 33 Kent Street, is co-defendant Java Landing, LLC
(“Java”) (Exhibit “J”, Exhibit “I”).
5. Cine Magic does not own the premises located at 33 Kent Street (Exhibit “J”,
Exhibit “J”). The demised premises that Cine Magic leases does not include the roadway
abutting 33 Kent Street, where plaintiff’s accident occurred (Exhibit “J”, Exhibit “I”). Cine
Magic had no duty, contractual or otherwise, to maintain or repair the roadway abutting 33 Kent
Street (Exhibit “J”, Exhibit “I”). Indeed, Cine Magic never repaired the roadway abutting its
leased premises on Kent Street, and never hired anyone to repair that roadway (Exhibit “J”,).
Cine Magic never performed and any maintenance, repair, construction, renovation, demolition,
or excavation work in the roadway abutting its leased premises on Kent Street (Exhibit “J”).
Cine Magic never hired anyone to perform any maintenance, repair, construction, renovation,
1
Copies of these photographs have not yet been produced by Plaintiff or the co-defendant, the City of New York,
despite longstanding demands for color copies of same dating back to January 28, 2019.
2
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demolition, or excavation work in the roadway abutting its leased premises on Kent Street
(Exhibit “J”). Neither Cine Magic nor any of its employees, agents, customers, or invitees ever
exercised any “special use” over the roadway abutting its leased premises at Kent Street, in
Brooklyn (Exhibit “J”). It is clear that Cine Magic had no relevant duty concerning the alleged
accident involving Plaintiff Jahary Canto, on October 10, 2017.
WHEREFORE, it is respectfully requested that the Court issue an Order pursuant to
C.P.L.R. §3212 granting Defendant Cine Magic East River Studios, LLC’s Motion for Summary
Judgment dismissing the Plaintiff’s Complaint in its entirety, along with such other and further
relief as this Court deems just and proper.
DATED: December 20, 2021
New York, New York
EUSTACE, PREZIOSO & YAPCHANYK
Attorneys for Defendant
Cine Magic East River Studios, LLC
55 Water Street, 28th Floor
New York, New York 10041
(212) 612-4200
By:
Robert M. Mazzei
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NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/20/2021
CERTIFICATION PURSUANT TO 202.8-B
I, Robert M. Mazzei, hereby certify pursuant to 22 NYCRR § 202.8-b of the Uniform
Rules of the Supreme Court that the foregoing RULE 202.8 STATEMENT OF UNDISPUTED
FACTS contains 655 words, exclusive of caption, table of contents, table of authorities and
signature block. The word count was determined in Microsoft Word, in which the document was
created.
DATED: December 20, 2021
New York, New York
_____________________________
Robert M. Mazzei
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FILED: KINGS COUNTY CLERK 12/20/2021 02:54 PM INDEX NO. 519697/2018 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/20/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS x JAHARY CANTO, Index No. 519697/2018 (ECF) Plaintiff RULE 202.8 STATEMENT OF v. UNDISPUTED FACTS CINE MAGIC EAST RIVER STUDIOS, LLC and JAVA LANDING, LLC AND THE CITY OF NEW YORK, Defendants x Defendant, Cine Magic East River Studios, LLC, hereby submits this statement pursuant to Rule 202.8-g of the Uniform Civil Rules for the Supreme Court and states that the following are material facts as to which there is no genuine issue to be tried: 1. On October 10, 2017, Plaintiff Jahary Canto (“Plaintiff”) was working as a parking assistant for non-party, EnteExhibit rtainment Partners, a subcontractor in the business of filming movies and commercials (Exhibit “A”, p. 6). Plaintiff’s alleged accident occurred at approximately 5:40 a.m. on that date, in the roadway abutting the property located at 33 Kent Avenue, Brooklyn, New York (Exhibit “A”, p. 7; Exhibit “E”). Plaintiff had been working since 3p.m. the day before (Exhibit “A”, p. 9). 2. At the 50-H hearing, Plaintiff unequivocally testified that his accident occurred in the roadway, not on the sidewalk (Exhibit “A”, p. 8). The questioning proceeded as follows: Q: Did the accident take place on a sidewalk, a roadway, a curb, or somewhere else? A: Roadway. Q: Was that roadway Kent Avenue? 1 of 4 FILED: KINGS COUNTY CLERK 12/20/2021 02:54 PM INDEX NO. 519697/2018 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/20/2021 A: Yes. (Exhibit “A”, p. 8). 3. Plaintiff described the condition that he fell on as “the edge of the crack of a crater” in the roadway which took his “whole ankle to the left” when he stepped on it (Exhibit “A”, p. 10). The crater was approximately four to six inches deep and one and a half feet wide (Exhibit “A”, p. 11-12). Plaintiff identified photographs of the crater where he fell at his 50-H hearing (See Exhibit “A”, pp. 39-44)1. 4. Defendant/Movant, Cine Magic East River Studios, LLC (“Cine Magic”) leases the premises located at 33 Kent Street, Brooklyn, New York (See Cine Magic’s Lease for 11 Kent Street, a copy of which is annexed as Exhibit “I”; see also Affidavit of Petros Kapsalis, CEO and Managing Member of Cine Magic, annexed as Exhibit “J”). The owner of the premises adjacent to the roadway, including 33 Kent Street, is co-defendant Java Landing, LLC (“Java”) (Exhibit “J”, Exhibit “I”). 5. Cine Magic does not own the premises located at 33 Kent Street (Exhibit “J”, Exhibit “J”). The demised premises that Cine Magic leases does not include the roadway abutting 33 Kent Street, where plaintiff’s accident occurred (Exhibit “J”, Exhibit “I”). Cine Magic had no duty, contractual or otherwise, to maintain or repair the roadway abutting 33 Kent Street (Exhibit “J”, Exhibit “I”). Indeed, Cine Magic never repaired the roadway abutting its leased premises on Kent Street, and never hired anyone to repair that roadway (Exhibit “J”,). Cine Magic never performed and any maintenance, repair, construction, renovation, demolition, or excavation work in the roadway abutting its leased premises on Kent Street (Exhibit “J”). Cine Magic never hired anyone to perform any maintenance, repair, construction, renovation, 1 Copies of these photographs have not yet been produced by Plaintiff or the co-defendant, the City of New York, despite longstanding demands for color copies of same dating back to January 28, 2019. 2 2 of 4 FILED: KINGS COUNTY CLERK 12/20/2021 02:54 PM INDEX NO. 519697/2018 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/20/2021 demolition, or excavation work in the roadway abutting its leased premises on Kent Street (Exhibit “J”). Neither Cine Magic nor any of its employees, agents, customers, or invitees ever exercised any “special use” over the roadway abutting its leased premises at Kent Street, in Brooklyn (Exhibit “J”). It is clear that Cine Magic had no relevant duty concerning the alleged accident involving Plaintiff Jahary Canto, on October 10, 2017. WHEREFORE, it is respectfully requested that the Court issue an Order pursuant to C.P.L.R. §3212 granting Defendant Cine Magic East River Studios, LLC’s Motion for Summary Judgment dismissing the Plaintiff’s Complaint in its entirety, along with such other and further relief as this Court deems just and proper. DATED: December 20, 2021 New York, New York EUSTACE, PREZIOSO & YAPCHANYK Attorneys for Defendant Cine Magic East River Studios, LLC 55 Water Street, 28th Floor New York, New York 10041 (212) 612-4200 By: Robert M. Mazzei 3 3 of 4 FILED: KINGS COUNTY CLERK 12/20/2021 02:54 PM INDEX NO. 519697/2018 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/20/2021 CERTIFICATION PURSUANT TO 202.8-B I, Robert M. Mazzei, hereby certify pursuant to 22 NYCRR § 202.8-b of the Uniform Rules of the Supreme Court that the foregoing RULE 202.8 STATEMENT OF UNDISPUTED FACTS contains 655 words, exclusive of caption, table of contents, table of authorities and signature block. The word count was determined in Microsoft Word, in which the document was created. DATED: December 20, 2021 New York, New York _____________________________ Robert M. Mazzei 4 of 4