Preview
FILED: NEW YORK COUNTY CLERK 11/30/2022 07:38 PM INDEX NO. 153982/2021
NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 11/30/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK Index No.: 153982/2021
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STEVEN JIMENEZ, AFFIRMATION IN
Plaintiff, OPPOSITON TO MOTION
TO DISMISS
-against-
MAXWELL KATES, INC. 315 SEVENTH RESIDENTIAL LLC.,
THE 315 SEVENTH AVENUE CONDOMINIUM, and
T-MOBILE USA, INC.,
Defendants.
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Joshua Versoza, Esq., an attorney duly admitted to practice law in the Courts of the State of New
York, affirms the following under the penalties of perjury:
1. I am associated with LIAKAS LAW, P.C., attorneys for Plaintiff, STEVEN JIMENEZ in the above
matter and as such, I am fully familiar with all the pleadings and proceedings herein.
2. This Affirmation is submitted in Opposition to Defendant’s, 315 SEVENTH RESIDENTIAL
LLC, Motion pursuant to CPLR §§3211(a)(1) and CPLR §§3211(a)(7) dismissing the Verified
Complaint in this action as against 315 SEVENTH RESIDENTIAL LLC, (ii) and for such other
and further relief as the Court may deem just and proper.
BRIEF STATEMENT OF FACTS
3. This litigation arises from personal injuries sustained by STEVEN JIMENEZ as a result of an
incident that occurred on the sidewalk of the premises located at 315 7th Avenue, New York, New
York, more specifically, in front of a T-Mobile store at said location.
4. As a result of the subject accident, Plaintiff sustained serious and permanent personal injuries.
PROCEDURAL HISTORY
5. In the interest of judicial economy, Plaintiff adopts and incorporates the procedural history as
stated in Defendant’s, 315 SEVENTH RESIDENTIAL LLC, motion papers, except to add that
depositions in this case have not yet taken place.
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ARGUMENT
MOTION TO DISMISS MUST FAIL WHEN THE COMPLAINT LIBERALLY
CONSTRUED MANIFESTS ANY CAUSE OF ACTION COGNIZABLE AT LAW
6. In considering a motion to dismiss complaint, the sole criterion is whether the pleading states
cause of action, and if, from complaint’s four corners, factual allegations are discerned which,
taken together, manifest any cause of action cognizable at law, motion for dismissal will fail.
CPLR 3211(a)(7); Guggenheimer v Ginzburg, 43 NY2d 268 (1977).
7. The law is well settled that the facts as alleged in complaint as deemed to be true for
purposes of deciding a motion to dismiss. Leon v Martinez, 84 NY2d 83 (1994). The court must
accord plaintiff the benefit of every possible favorable inference and determine only whether facts
as alleged fit within any cognizable legal theory. CAE Indus. v KPMG Peat Marwick, 193 AD2d
470 (1st Dept 1993).
8. Plaintiffs’ ultimate ability to prove those allegations is not relevant on a motion to dismiss the
complaint. Landon v Kroll Lab. Specialists, Inc., 22 NY3d 1 (2013). Where the pleaded facts
state a cause of action, documentary evidence may result in dismissal only where it has been shown
that a material fact as claimed by the pleader is not a fact at all and no significant dispute exists
regarding it. Acquista v New York Life Ins. Co., 285 AD2d 73 (1st Dept 2001). Evidence in an
affidavit used by defendant to attack the sufficiency of a pleading will seldom, if ever, warrant the
relief defendant seeks unless such evidence conclusively establishes that plaintiffs have no cause
of action. Basis Yield Alpha Fund (Master) v Goldman Sachs Group, Inc., 115 AD3d 128 (1st
Dept 2014).
9. The Verified Complaint is valid on its face, states causes of action as a matter of law, and
significant disputes exist regarding material facts. Accordingly, Defendant’s Motion to Dismiss
the complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7) must be denied.
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MOTION TO DISMISS MUST BE DENIED TO ALLOW
DISCOVERY PURSUANT TO CPLR 3211(d)
10. The Motion to Dismiss must be denied to allow discovery pursuant to CPLR 3211(d). There is
key information that is currently unavailable to Plaintiff. Material evidence exists that is within
Defendant’s sole knowledge or possession. The fundamental right to receive discovery must be
granted to Plaintiffs. CPLR 3211(d) states:
“Facts unavailable to opposing party. Should it appear from affidavits submitted in opposition
to a motion made under subdivision (a) or (b) that facts essential to justify opposition may exist
but cannot then be stated, the court may deny the motion, allowing the moving party to assert
the objection in his responsive pleading, if any, or may order a continuance to permit further
affidavits to be obtained or disclosure to be had and may make such other order as may be just.”
11. Discovery is sanctioned when a party demonstrates that facts may exist in opposition to a motion
to dismiss. Amigo Foods Corp. v Marine Midland Bank-N.Y., 39 NY2d 391 (1976). Under
CPLR 3211(d) a plaintiff opposing a motion to dismiss need only show that facts unavailable to
the plaintiff may exist which will justify denial of the motion, and need not demonstrate the actual
existence of such facts. See e.g. Cerchia v V.A. Mesa, Inc., 191 AD2d 377 (1st Dept 1993);
National Union Fire Ins. Co. of Pittsburgh v Ideal Mut. Ins. Co., 122 AD2d 630(1st Dept 1986);
Lemle v Lemle, 92 AD3d 494 (2012); Peterson v Spartan Indus., 33 NY2d 463 (1974).
12. Facts regarding Defendant’s, 315 SEVENTH RESIDENTIAL LLC, negligence are exclusively
within Defendant’s possession. Despite being pled in the Complaint, Defendant, 315 SEVENTH
RESIDENTIAL LLC, conveniently fails to address any of the allegations regarding the
maintenance, repair, inspection, and duty to maintain the premise in a reasonably safe condition.
13. Plaintiff is entitled to information that is in the sole knowledge and possession of Defendant in
order to respond fully to this motion to dismiss. The Court has explicit power underCPLR 3211(d)
to deny the Motion to Dismiss to afford Plaintiff an opportunity to seek a deposition or use any
other disclosure device against the party who holds a possible key to the facts. Accordingly, the
Motion to Dismiss must be denied and discovery permitted to go forward.
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DEFENDANT 315 SEVENTH RESIDENTIAL LLC HAS FAILED TO
MEET ITS BURDEN UNDER CPLR 3211
14. As Defendant, 315 SEVENTH RESIDENTIAL LLC, is moving pursuant to CPLR § 3211, the
motion must be denied as they have failed to establish their prima facie case.
15. In Sims v Prom Realty Co., 160 AD3d 1006, 2108 NY Slip Op 02822 (2nd Dept., 2018) the lower
court denied defendant’s motion to dismiss pursuant to CPLR 3211. It should be noted that the
Defendant claimed, as in the instant case, that it had no duty to the Plaintiff – on any level. On
appeal the Second Department affirmed the denial, holding that:
“A motion to dismiss pursuant to CPLR 3211 (a) (1) will be granted only if the
'documentary evidence resolves all factual issues as a matter of law, and conclusively
disposes of the plaintiff's claim' " (Fontanetta v John Doe 1, 73 AD3d 78, 83 [2010],
quoting Fortis Fin. Servs. v Fimat Futures USA, 290 AD2d 383, 383 [2002]; see Leon v
Martinez, 84 NY2d 83, 88 [1994]; Guido v Orange Regional Med. Ctr., 102 AD3d 828,
830 [2013]). "In order for evidence to qualify as 'documentary,' it must be unambiguous,
authentic, and undeniable" (Granada Condominium III Assn. v Palomino, 78 AD3d 996,
996-997 [2010] [internal quotation marks omitted]). "Neither affidavits, deposition
testimony, nor letters are considered documentary evidence within the intendment of
CPLR 3211 (a) (1)" (Granada Condominium III Assn. v Palomino, 78 AD3d at 997
[internal quotation marks omitted]; see Suchmacher v Manana Grocery, 73 AD3d 1017,
1017 [2010]; Fontanetta v John Doe 1, 73 AD3d at 86).
16. The same was seen in A.N. v Roman Catholic Diocese of Rockville Ctr., 165 AD3d 69, 2018
NY Slip Op 06872, where the court held that following:
"On a pre-answer motion to dismiss pursuant to CPLR 3211, the pleading is to be
afforded a liberal construction and the plaintiff's allegations are accepted as true and
accorded the benefit of every possible favorable inference" (Granada Condominium III
Assn. v Palomino, 78 AD3d 996, 996 [2010]; see Leon v Martinez, 84 NY2d 83, 87
[1994]; Reiver v Burkhart Wexler & Hirschberg, LLP, 73 AD3d 1149 [2010]). Dismissal
on the basis of CPLR 3211 (a) (1) should be granted only where the documentary
evidence that forms the basis of the defense is such that it utterly refutes the plaintiff's
factual allegations, and conclusively disposes of the plaintiff's claims as a matter of law
(see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Held v Kaufman,
91 NY2d 425, 430-431 [1998]; Pasquaretto v Long Is. Univ., 106 AD3d
794 [2013]; Parekh v Cain, 96 AD3d 812, 815 [2012]; Sato Constr. Co., Inc. v 17 & 24
Corp., 92 AD3d 934, 935-936 [2012]). To qualify as documentary evidence, the evidence
"must be unambiguous and of undisputed authenticity" (Fontanetta v John Doe 1, 73
AD3d 78, 86 [2010]; see Flushing Sav. Bank, FSB v Siunykalimi, 94 AD3d 807, 808
[2012]). "[N]either affidavits, deposition testimony, nor letters are considered
'documentary evidence,' within the intendment of CPLR 3211 (a) (1)" (Granada
Condominium III Assn. v Palomino, 78 AD3d at 997).
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17. Here, the Defendant 315 SEVENTH RESIDENTIAL LLC, presents an affidavit of Myles Horn
(see NYSCEF doc # 34), a member of 315 SEVENTH RESIDENTIAL LLC. This self serving
affidavit should not be considered, as affidavits are not considered documentary evidence for the
purposes of a motion to dismiss pursuant to CPLR 3211(a)(1).
18. Defendant 315 SEVENTH RESIDENTIAL LLC, also relies on the offering plan and fifteenth
amendment to the offering plan (see Exhibits “1” and “2” of Defendant’s motion) to show that
they do not have any control, responsibility, or involvement in the maintenance and/or
management of the outside of the building. These documents merely that 315 SEVENTH
RESIDENTIAL LLC owned residential units at the address where the accident took place.
19. Questions remain such as at the time of occurrence was there a contractual relationship between
the named Defendants in the case, as well as if Defendant 315 SEVENTH RESIDENTIAL LLC
performed work on the sidewalk, performed inspections on the sidewalk, amongst other items
that would be more appropriate upon the taking of depositions and after the receipt of
documentary discovery from all Defendants.
20. An entity is responsible for the maintenance, management, and/or repair of the outside/exterior
portion of the building located at 315 Seventh Avenue, and without the opportunity to conduct
discovery, Plaintiff will be unable to hold the proper entity responsible for his injuries.
21. As illustrated above it is incumbent upon the Defendant to demonstrate to this Court, through
documentary evidence, that Plaintiff’s allegations are utterly refuted. Id. It is impossible for this
Court to find that Defendant has met this burden. Therefore, Defendant’s motion must be denied
in its entirety.
SANCTIONS ARE NOT WARRENTED
22. Defendant is seeking costs and sanctions against Plaintiff because Plaintiff brought this action
against Defendant after Defendant, in correspondence to your affirmant’s office, said not to do so.
This application must be denied.
23. Defendant seeks costs but fails to outline what their costs are.
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24. While it is understandable that Defendant 315 SEVENTH RESIDENTIAL LLC does not want to
be involved in any sort of litigation, it conclusions are not supported by documentary evidence.
Its application for sanctions, is wholly improper, has no merit and must be denied.
CONCLUSION
25. Applied to the case at bar, the proof offered by movant clearly falls below the level required and
the Court should deny Defendant’s motion entirely, especially since the proof offered herein is
not “documentary evidence” that supports a motion to dismiss pursuant to CPLR § 3211.
26. WHEREFORE it is respectfully requested that the Court deny Defendant’s motion in its entirety
and grant such other and further relief as it may deem just and proper.
Dated: New York, New York
November 30, 2022
LIAKAS LAW, P.C.
Joshua Versoza
Joshua Versoza, Esq.
Attorneys for Plaintiff
40 Wall Street, Floor 50
New York, New York 10005
212-937-7765
To: All Parties Via NYSCEF
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Preview
FILED: NEW YORK COUNTY CLERK 11/30/2022 07:38 PM INDEX NO. 153982/2021 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 11/30/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Index No.: 153982/2021 -----------------------------------------------------------------------------X STEVEN JIMENEZ, AFFIRMATION IN Plaintiff, OPPOSITON TO MOTION TO DISMISS -against- MAXWELL KATES, INC. 315 SEVENTH RESIDENTIAL LLC., THE 315 SEVENTH AVENUE CONDOMINIUM, and T-MOBILE USA, INC., Defendants. -----------------------------------------------------------------------------X Joshua Versoza, Esq., an attorney duly admitted to practice law in the Courts of the State of New York, affirms the following under the penalties of perjury: 1. I am associated with LIAKAS LAW, P.C., attorneys for Plaintiff, STEVEN JIMENEZ in the above matter and as such, I am fully familiar with all the pleadings and proceedings herein. 2. This Affirmation is submitted in Opposition to Defendant’s, 315 SEVENTH RESIDENTIAL LLC, Motion pursuant to CPLR §§3211(a)(1) and CPLR §§3211(a)(7) dismissing the Verified Complaint in this action as against 315 SEVENTH RESIDENTIAL LLC, (ii) and for such other and further relief as the Court may deem just and proper. BRIEF STATEMENT OF FACTS 3. This litigation arises from personal injuries sustained by STEVEN JIMENEZ as a result of an incident that occurred on the sidewalk of the premises located at 315 7th Avenue, New York, New York, more specifically, in front of a T-Mobile store at said location. 4. As a result of the subject accident, Plaintiff sustained serious and permanent personal injuries. PROCEDURAL HISTORY 5. In the interest of judicial economy, Plaintiff adopts and incorporates the procedural history as stated in Defendant’s, 315 SEVENTH RESIDENTIAL LLC, motion papers, except to add that depositions in this case have not yet taken place. 1 of 6 FILED: NEW YORK COUNTY CLERK 11/30/2022 07:38 PM INDEX NO. 153982/2021 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 11/30/2022 ARGUMENT MOTION TO DISMISS MUST FAIL WHEN THE COMPLAINT LIBERALLY CONSTRUED MANIFESTS ANY CAUSE OF ACTION COGNIZABLE AT LAW 6. In considering a motion to dismiss complaint, the sole criterion is whether the pleading states cause of action, and if, from complaint’s four corners, factual allegations are discerned which, taken together, manifest any cause of action cognizable at law, motion for dismissal will fail. CPLR 3211(a)(7); Guggenheimer v Ginzburg, 43 NY2d 268 (1977). 7. The law is well settled that the facts as alleged in complaint as deemed to be true for purposes of deciding a motion to dismiss. Leon v Martinez, 84 NY2d 83 (1994). The court must accord plaintiff the benefit of every possible favorable inference and determine only whether facts as alleged fit within any cognizable legal theory. CAE Indus. v KPMG Peat Marwick, 193 AD2d 470 (1st Dept 1993). 8. Plaintiffs’ ultimate ability to prove those allegations is not relevant on a motion to dismiss the complaint. Landon v Kroll Lab. Specialists, Inc., 22 NY3d 1 (2013). Where the pleaded facts state a cause of action, documentary evidence may result in dismissal only where it has been shown that a material fact as claimed by the pleader is not a fact at all and no significant dispute exists regarding it. Acquista v New York Life Ins. Co., 285 AD2d 73 (1st Dept 2001). Evidence in an affidavit used by defendant to attack the sufficiency of a pleading will seldom, if ever, warrant the relief defendant seeks unless such evidence conclusively establishes that plaintiffs have no cause of action. Basis Yield Alpha Fund (Master) v Goldman Sachs Group, Inc., 115 AD3d 128 (1st Dept 2014). 9. The Verified Complaint is valid on its face, states causes of action as a matter of law, and significant disputes exist regarding material facts. Accordingly, Defendant’s Motion to Dismiss the complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7) must be denied. 2 of 6 FILED: NEW YORK COUNTY CLERK 11/30/2022 07:38 PM INDEX NO. 153982/2021 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 11/30/2022 MOTION TO DISMISS MUST BE DENIED TO ALLOW DISCOVERY PURSUANT TO CPLR 3211(d) 10. The Motion to Dismiss must be denied to allow discovery pursuant to CPLR 3211(d). There is key information that is currently unavailable to Plaintiff. Material evidence exists that is within Defendant’s sole knowledge or possession. The fundamental right to receive discovery must be granted to Plaintiffs. CPLR 3211(d) states: “Facts unavailable to opposing party. Should it appear from affidavits submitted in opposition to a motion made under subdivision (a) or (b) that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion, allowing the moving party to assert the objection in his responsive pleading, if any, or may order a continuance to permit further affidavits to be obtained or disclosure to be had and may make such other order as may be just.” 11. Discovery is sanctioned when a party demonstrates that facts may exist in opposition to a motion to dismiss. Amigo Foods Corp. v Marine Midland Bank-N.Y., 39 NY2d 391 (1976). Under CPLR 3211(d) a plaintiff opposing a motion to dismiss need only show that facts unavailable to the plaintiff may exist which will justify denial of the motion, and need not demonstrate the actual existence of such facts. See e.g. Cerchia v V.A. Mesa, Inc., 191 AD2d 377 (1st Dept 1993); National Union Fire Ins. Co. of Pittsburgh v Ideal Mut. Ins. Co., 122 AD2d 630(1st Dept 1986); Lemle v Lemle, 92 AD3d 494 (2012); Peterson v Spartan Indus., 33 NY2d 463 (1974). 12. Facts regarding Defendant’s, 315 SEVENTH RESIDENTIAL LLC, negligence are exclusively within Defendant’s possession. Despite being pled in the Complaint, Defendant, 315 SEVENTH RESIDENTIAL LLC, conveniently fails to address any of the allegations regarding the maintenance, repair, inspection, and duty to maintain the premise in a reasonably safe condition. 13. Plaintiff is entitled to information that is in the sole knowledge and possession of Defendant in order to respond fully to this motion to dismiss. The Court has explicit power underCPLR 3211(d) to deny the Motion to Dismiss to afford Plaintiff an opportunity to seek a deposition or use any other disclosure device against the party who holds a possible key to the facts. Accordingly, the Motion to Dismiss must be denied and discovery permitted to go forward. 3 of 6 FILED: NEW YORK COUNTY CLERK 11/30/2022 07:38 PM INDEX NO. 153982/2021 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 11/30/2022 DEFENDANT 315 SEVENTH RESIDENTIAL LLC HAS FAILED TO MEET ITS BURDEN UNDER CPLR 3211 14. As Defendant, 315 SEVENTH RESIDENTIAL LLC, is moving pursuant to CPLR § 3211, the motion must be denied as they have failed to establish their prima facie case. 15. In Sims v Prom Realty Co., 160 AD3d 1006, 2108 NY Slip Op 02822 (2nd Dept., 2018) the lower court denied defendant’s motion to dismiss pursuant to CPLR 3211. It should be noted that the Defendant claimed, as in the instant case, that it had no duty to the Plaintiff – on any level. On appeal the Second Department affirmed the denial, holding that: “A motion to dismiss pursuant to CPLR 3211 (a) (1) will be granted only if the 'documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim' " (Fontanetta v John Doe 1, 73 AD3d 78, 83 [2010], quoting Fortis Fin. Servs. v Fimat Futures USA, 290 AD2d 383, 383 [2002]; see Leon v Martinez, 84 NY2d 83, 88 [1994]; Guido v Orange Regional Med. Ctr., 102 AD3d 828, 830 [2013]). "In order for evidence to qualify as 'documentary,' it must be unambiguous, authentic, and undeniable" (Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996-997 [2010] [internal quotation marks omitted]). "Neither affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211 (a) (1)" (Granada Condominium III Assn. v Palomino, 78 AD3d at 997 [internal quotation marks omitted]; see Suchmacher v Manana Grocery, 73 AD3d 1017, 1017 [2010]; Fontanetta v John Doe 1, 73 AD3d at 86). 16. The same was seen in A.N. v Roman Catholic Diocese of Rockville Ctr., 165 AD3d 69, 2018 NY Slip Op 06872, where the court held that following: "On a pre-answer motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction and the plaintiff's allegations are accepted as true and accorded the benefit of every possible favorable inference" (Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996 [2010]; see Leon v Martinez, 84 NY2d 83, 87 [1994]; Reiver v Burkhart Wexler & Hirschberg, LLP, 73 AD3d 1149 [2010]). Dismissal on the basis of CPLR 3211 (a) (1) should be granted only where the documentary evidence that forms the basis of the defense is such that it utterly refutes the plaintiff's factual allegations, and conclusively disposes of the plaintiff's claims as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Held v Kaufman, 91 NY2d 425, 430-431 [1998]; Pasquaretto v Long Is. Univ., 106 AD3d 794 [2013]; Parekh v Cain, 96 AD3d 812, 815 [2012]; Sato Constr. Co., Inc. v 17 & 24 Corp., 92 AD3d 934, 935-936 [2012]). To qualify as documentary evidence, the evidence "must be unambiguous and of undisputed authenticity" (Fontanetta v John Doe 1, 73 AD3d 78, 86 [2010]; see Flushing Sav. Bank, FSB v Siunykalimi, 94 AD3d 807, 808 [2012]). "[N]either affidavits, deposition testimony, nor letters are considered 'documentary evidence,' within the intendment of CPLR 3211 (a) (1)" (Granada Condominium III Assn. v Palomino, 78 AD3d at 997). 4 of 6 FILED: NEW YORK COUNTY CLERK 11/30/2022 07:38 PM INDEX NO. 153982/2021 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 11/30/2022 17. Here, the Defendant 315 SEVENTH RESIDENTIAL LLC, presents an affidavit of Myles Horn (see NYSCEF doc # 34), a member of 315 SEVENTH RESIDENTIAL LLC. This self serving affidavit should not be considered, as affidavits are not considered documentary evidence for the purposes of a motion to dismiss pursuant to CPLR 3211(a)(1). 18. Defendant 315 SEVENTH RESIDENTIAL LLC, also relies on the offering plan and fifteenth amendment to the offering plan (see Exhibits “1” and “2” of Defendant’s motion) to show that they do not have any control, responsibility, or involvement in the maintenance and/or management of the outside of the building. These documents merely that 315 SEVENTH RESIDENTIAL LLC owned residential units at the address where the accident took place. 19. Questions remain such as at the time of occurrence was there a contractual relationship between the named Defendants in the case, as well as if Defendant 315 SEVENTH RESIDENTIAL LLC performed work on the sidewalk, performed inspections on the sidewalk, amongst other items that would be more appropriate upon the taking of depositions and after the receipt of documentary discovery from all Defendants. 20. An entity is responsible for the maintenance, management, and/or repair of the outside/exterior portion of the building located at 315 Seventh Avenue, and without the opportunity to conduct discovery, Plaintiff will be unable to hold the proper entity responsible for his injuries. 21. As illustrated above it is incumbent upon the Defendant to demonstrate to this Court, through documentary evidence, that Plaintiff’s allegations are utterly refuted. Id. It is impossible for this Court to find that Defendant has met this burden. Therefore, Defendant’s motion must be denied in its entirety. SANCTIONS ARE NOT WARRENTED 22. Defendant is seeking costs and sanctions against Plaintiff because Plaintiff brought this action against Defendant after Defendant, in correspondence to your affirmant’s office, said not to do so. This application must be denied. 23. Defendant seeks costs but fails to outline what their costs are. 5 of 6 FILED: NEW YORK COUNTY CLERK 11/30/2022 07:38 PM INDEX NO. 153982/2021 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 11/30/2022 24. While it is understandable that Defendant 315 SEVENTH RESIDENTIAL LLC does not want to be involved in any sort of litigation, it conclusions are not supported by documentary evidence. Its application for sanctions, is wholly improper, has no merit and must be denied. CONCLUSION 25. Applied to the case at bar, the proof offered by movant clearly falls below the level required and the Court should deny Defendant’s motion entirely, especially since the proof offered herein is not “documentary evidence” that supports a motion to dismiss pursuant to CPLR § 3211. 26. WHEREFORE it is respectfully requested that the Court deny Defendant’s motion in its entirety and grant such other and further relief as it may deem just and proper. Dated: New York, New York November 30, 2022 LIAKAS LAW, P.C. Joshua Versoza Joshua Versoza, Esq. Attorneys for Plaintiff 40 Wall Street, Floor 50 New York, New York 10005 212-937-7765 To: All Parties Via NYSCEF 6 of 6