Preview
FILED: KINGS COUNTY CLERK 08/06/2021 06:12 PM INDEX NO. 519872/2018
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 08/06/2021
McElroy, Deutsch, Mulvaney & Carpenter, LLP
Brookfield Place
225 Liberty Street, 36th Floor
New York, NY 10281
(212) 483-9490
Attorneys for Defendant
Flemington Electrical Maintenance, Inc.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
-----------------------------------------------------------------------X
MICHAEL VINDIGNI, Index No. 519872/2018
Plaintiff,
AFFIRMATION
IN SUPPORT
-against-
JOSEPH A. BRIZZI & SONS, INC and
FLEMINGTON ELECTRICAL MAINTENANCE INC.,
Defendants.
-----------------------------------------------------------------------X
BRIAN L. BATTISTI, an attorney admitted to practice law in this State, in accordance
with CPLR § 2106, and being duly sworn, hereby subscribes and affirms under the penalties of
perjury that the following statements are true and accurate:
1. I am an attorney at law of the State of New York and a Partner at the law firm
McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys for the Defendant, Flemington
Electrical Maintenance (hereinafter “Flemington”).
2. I am fully familiar with the matters stated herein, based on my review of the file
maintained by this office.
3. This Affirmation is respectfully submitted by Flemington in support of its motion
for summary judgment dismissing the Complaint in its entirety, along with all cross-claims; and
for all such other and further relief as this Court deems proper.
1
1 of 5
FILED: KINGS COUNTY CLERK 08/06/2021 06:12 PM INDEX NO. 519872/2018
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 08/06/2021
PROCEDURAL HISTORY
4. This action was commenced by plaintiff Michael Vindigni, (hereinafter,
“Vindigni” or “Plaintiff”) for personal injuries allegedly sustained on January 30, 2017 at 3911
Fort Hamilton Parkway, Brooklyn, New York (“Premises”). The plaintiff alleges he sustained
injuries to his left knee as the result of landing on plywood debris on the roof of the Premises
while responding to a call during the course of his employment with the FDNY.
5. The plaintiff commenced suit on October 3, 2018, asserting two causes of action –
one sounding in negligence and a second pursuant to General Municipal Law §205-a. The
Complaint names Joseph A. Brizzi & Sons, Inc (“Brizzi”) and Flemington as defendants. A true
and correct copy of the Summons and Complaint is located at NYSCEF Document No. 11
6. Brizzi interposed an Answer with cross-claims on November 19, 2018. A true
and correct copy of the Answer is located at NYSCEF Documents No. 4. Brizzi owned the
Premises. See Brizzi Answer paragraph 2.
7. Flemington interposed an Answer with cross-claims on December 18, 2018. A
true and correct copy of Flemington’s Answer is located at NYSCEF Document No. 7.
8. The plaintiff served Bills of Particulars on February 1, 2019. Copies of these are
annexed hereto as Exhibit A.
9. The plaintiff filed the Note of Issue on June 9, 2021. A copy of the Note of Issue
is located at NYSCEF Document No. 30. Dispositive motions are to be made within 60 days of
the filing of the Note of Issue. As such, this motion is timely.
1
Pursuant to CPLR § 2214 (c), a party submitting papers on a motion may refer to previously electronically filed
documents by reference to the NYSCEF docket number without the necessity of attaching copies.
2
2 of 5
FILED: KINGS COUNTY CLERK 08/06/2021 06:12 PM INDEX NO. 519872/2018
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 08/06/2021
DEPOSITIONS CONDUCTED
10. The plaintiff was deposed over the course of two days, September 6, 2019 and
November 5, 2020. A true and correct copy of the transcripts of the September 6, 2019
deposition of the plaintiff is annexed hereto as Exhibit B.
11. Corporate secretary Dina Brizzi appeared on behalf of Brizzi on two separate
days, January 16, 2020 and October 15, 2020. True and correct copies of the transcripts are
annexed hereto as Exhibit C.
PHOTOGRAPHS AND REPORTS
12. Attached hereto as Exhibit D is a google photograph of the subject Premises.
This photograph was also marked and confirmed as the Premises at Dina Brizzi’s first day of
deposition on November 24, 2020.
13. Attached hereto as Exhibit E is a copy of the FDNY Member Injury Report (CD
72), marked as an exhibit at the plaintiff’s deposition on September 6, 2019. The plaintiff
authenticated the report, confirmed the accuracy of the FDNY Injury Description Narrative and
confirmed he signed the document. Plaintiff’s Transcript p. 60-61.
14. The FDNY Member Injury Report states that “the roof was covered in debris and
broken material which led to an uneven landing. As FF Vindigni came down he felt a sharp pop
in his left knee and immediately felt severe pain in the knee area.”
3
3 of 5
FILED: KINGS COUNTY CLERK 08/06/2021 06:12 PM INDEX NO. 519872/2018
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 08/06/2021
ARGUMENT
15. The Complaint should be dismissed because the evidentiary record is clear that
there is no directly or indirectly connection between the alleged negligence of Flemington, which
was wholly related to electrical work in the basement and the cause of the plaintiff’s injuries –
the debris on the roof. Rather, the sole proximate cause of the plaintiff’s alleged injuries was
Brizzi’s failure to maintain the roof, resulting in the plaintiff twisting his knee as he landed on
the plywood debris on the roof.
16. Simply put, there is no direct, indirect or proximate connection between the
allegation asserted against Flemington (electrical work in the basement) and the mechanism of
the plaintiff’s alleged injuries (plywood debris on the roof). Accordingly, the plaintiff cannot
maintain either a negligence cause of action – which requires proximate cause – or a GML 205-a
cause of action– which requires a direct or indirect connection - against Flemington. Therefore,
the Complaint should be dismissed in its entirety against Flemington.
CONCLUSION
WHEREFORE, for the foregoing reasons, it is respectfully requested that summary
judgment be awarded and the Complaint be dismissed in its entirety; and for such other and
further relief as this Court deems just and proper.
Dated: New York, New York
August 6, 2021
/s/ Brian L. Battisti
Brian L. Battisti, Esq.
4
4 of 5
FILED: KINGS COUNTY CLERK 08/06/2021 06:12 PM INDEX NO. 519872/2018
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 08/06/2021
WORD COUNT CERTIFICATION
PURSUANT TO UNIFORM COURT RULE § 202.8-b(c)
I certify that the total number of words in this Affirmation in Support, exclusive of the
caption and signature block, is 838. The document therefore complies with the word count limit
as set forth in Uniform Court Rules § 202.8-b(c).
Dated: New York, New York By: __s/ Brian L. Battisti
August 6, 2021 Brian L. Battisti, Esq.
McElroy, Deutsch, Mulvaney & Carpenter, LLP
Brookfield Place
225 Liberty Street, 36th Floor
New York, New York 10281
(212) 483-9490
5
5 of 5
Preview
FILED: KINGS COUNTY CLERK 08/06/2021 06:12 PM INDEX NO. 519872/2018 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 08/06/2021 McElroy, Deutsch, Mulvaney & Carpenter, LLP Brookfield Place 225 Liberty Street, 36th Floor New York, NY 10281 (212) 483-9490 Attorneys for Defendant Flemington Electrical Maintenance, Inc. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -----------------------------------------------------------------------X MICHAEL VINDIGNI, Index No. 519872/2018 Plaintiff, AFFIRMATION IN SUPPORT -against- JOSEPH A. BRIZZI & SONS, INC and FLEMINGTON ELECTRICAL MAINTENANCE INC., Defendants. -----------------------------------------------------------------------X BRIAN L. BATTISTI, an attorney admitted to practice law in this State, in accordance with CPLR § 2106, and being duly sworn, hereby subscribes and affirms under the penalties of perjury that the following statements are true and accurate: 1. I am an attorney at law of the State of New York and a Partner at the law firm McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys for the Defendant, Flemington Electrical Maintenance (hereinafter “Flemington”). 2. I am fully familiar with the matters stated herein, based on my review of the file maintained by this office. 3. This Affirmation is respectfully submitted by Flemington in support of its motion for summary judgment dismissing the Complaint in its entirety, along with all cross-claims; and for all such other and further relief as this Court deems proper. 1 1 of 5 FILED: KINGS COUNTY CLERK 08/06/2021 06:12 PM INDEX NO. 519872/2018 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 08/06/2021 PROCEDURAL HISTORY 4. This action was commenced by plaintiff Michael Vindigni, (hereinafter, “Vindigni” or “Plaintiff”) for personal injuries allegedly sustained on January 30, 2017 at 3911 Fort Hamilton Parkway, Brooklyn, New York (“Premises”). The plaintiff alleges he sustained injuries to his left knee as the result of landing on plywood debris on the roof of the Premises while responding to a call during the course of his employment with the FDNY. 5. The plaintiff commenced suit on October 3, 2018, asserting two causes of action – one sounding in negligence and a second pursuant to General Municipal Law §205-a. The Complaint names Joseph A. Brizzi & Sons, Inc (“Brizzi”) and Flemington as defendants. A true and correct copy of the Summons and Complaint is located at NYSCEF Document No. 11 6. Brizzi interposed an Answer with cross-claims on November 19, 2018. A true and correct copy of the Answer is located at NYSCEF Documents No. 4. Brizzi owned the Premises. See Brizzi Answer paragraph 2. 7. Flemington interposed an Answer with cross-claims on December 18, 2018. A true and correct copy of Flemington’s Answer is located at NYSCEF Document No. 7. 8. The plaintiff served Bills of Particulars on February 1, 2019. Copies of these are annexed hereto as Exhibit A. 9. The plaintiff filed the Note of Issue on June 9, 2021. A copy of the Note of Issue is located at NYSCEF Document No. 30. Dispositive motions are to be made within 60 days of the filing of the Note of Issue. As such, this motion is timely. 1 Pursuant to CPLR § 2214 (c), a party submitting papers on a motion may refer to previously electronically filed documents by reference to the NYSCEF docket number without the necessity of attaching copies. 2 2 of 5 FILED: KINGS COUNTY CLERK 08/06/2021 06:12 PM INDEX NO. 519872/2018 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 08/06/2021 DEPOSITIONS CONDUCTED 10. The plaintiff was deposed over the course of two days, September 6, 2019 and November 5, 2020. A true and correct copy of the transcripts of the September 6, 2019 deposition of the plaintiff is annexed hereto as Exhibit B. 11. Corporate secretary Dina Brizzi appeared on behalf of Brizzi on two separate days, January 16, 2020 and October 15, 2020. True and correct copies of the transcripts are annexed hereto as Exhibit C. PHOTOGRAPHS AND REPORTS 12. Attached hereto as Exhibit D is a google photograph of the subject Premises. This photograph was also marked and confirmed as the Premises at Dina Brizzi’s first day of deposition on November 24, 2020. 13. Attached hereto as Exhibit E is a copy of the FDNY Member Injury Report (CD 72), marked as an exhibit at the plaintiff’s deposition on September 6, 2019. The plaintiff authenticated the report, confirmed the accuracy of the FDNY Injury Description Narrative and confirmed he signed the document. Plaintiff’s Transcript p. 60-61. 14. The FDNY Member Injury Report states that “the roof was covered in debris and broken material which led to an uneven landing. As FF Vindigni came down he felt a sharp pop in his left knee and immediately felt severe pain in the knee area.” 3 3 of 5 FILED: KINGS COUNTY CLERK 08/06/2021 06:12 PM INDEX NO. 519872/2018 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 08/06/2021 ARGUMENT 15. The Complaint should be dismissed because the evidentiary record is clear that there is no directly or indirectly connection between the alleged negligence of Flemington, which was wholly related to electrical work in the basement and the cause of the plaintiff’s injuries – the debris on the roof. Rather, the sole proximate cause of the plaintiff’s alleged injuries was Brizzi’s failure to maintain the roof, resulting in the plaintiff twisting his knee as he landed on the plywood debris on the roof. 16. Simply put, there is no direct, indirect or proximate connection between the allegation asserted against Flemington (electrical work in the basement) and the mechanism of the plaintiff’s alleged injuries (plywood debris on the roof). Accordingly, the plaintiff cannot maintain either a negligence cause of action – which requires proximate cause – or a GML 205-a cause of action– which requires a direct or indirect connection - against Flemington. Therefore, the Complaint should be dismissed in its entirety against Flemington. CONCLUSION WHEREFORE, for the foregoing reasons, it is respectfully requested that summary judgment be awarded and the Complaint be dismissed in its entirety; and for such other and further relief as this Court deems just and proper. Dated: New York, New York August 6, 2021 /s/ Brian L. Battisti Brian L. Battisti, Esq. 4 4 of 5 FILED: KINGS COUNTY CLERK 08/06/2021 06:12 PM INDEX NO. 519872/2018 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 08/06/2021 WORD COUNT CERTIFICATION PURSUANT TO UNIFORM COURT RULE § 202.8-b(c) I certify that the total number of words in this Affirmation in Support, exclusive of the caption and signature block, is 838. The document therefore complies with the word count limit as set forth in Uniform Court Rules § 202.8-b(c). Dated: New York, New York By: __s/ Brian L. Battisti August 6, 2021 Brian L. Battisti, Esq. McElroy, Deutsch, Mulvaney & Carpenter, LLP Brookfield Place 225 Liberty Street, 36th Floor New York, New York 10281 (212) 483-9490 5 5 of 5