Preview
FILED: NEW YORK COUNTY CLERK 12/08/2022 01:35 PM INDEX NO. 153982/2021
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 12/08/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
STEVEN JIMENEZ, Index No. 153982/2021
Plaintiff,
-against- REPLY AFFIDAVIT IN FURTHER
SUPPORT OF MOTION TO
MAXWELL KATES, INC., 315 SEVENTH DISMISS THIS ACTION AS
RESIDENTIAL THE 315 SEVENTH AVENUE AGAINST 315 SEVENTH
L.L.C.,
RESIDENTIAL L.L.C.
CONDOMINIUM and T-MOBILE USA, INC.,
Defendants.
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
Myles Horn, being duly sworn, deposes and says:
1. I am a member of 315 Seventh Residentiall, a defendant in this action. I
am familiar with the facts and circumstances set forth herein.
2. This reply affidavit, along with the reply affirmation of Noelle Picone, is
respectfully submitted in further support of 315 Seventh Residential's motion seeking an order:
(a) Vacating 315 Seventh Residential's default in failing to
timely respond to the complaint under CPLR § 320(a) and
accepting this pre-answer motion to dismiss as 315 Seventh
Residential's response to the complaint;
(b) Pursuant to CPLR § § 3211(a)(1) and (a)(7), dismissing this
action as against 315 Seventh Residential because the
complaint fails to state a cause of action as against 315
Seventh Resi ential;
'
Pursuant to Section 130-1.1 of the Administrative Rules of
(c)
the Unified Court System & Uniform Rules of the Trial
Courts, granting sanctions as against Jimenez and/or his
1 The Residential'
capitalizedterms hereinhave the same meaning as thoseterms defined in 315 Seventh s underlying
motion.
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counsel in commencing, and oursuing, this frivolous action
as against 315 Seventh Residential;
(d) In the event that this pre-answer motion to dismiss isdenied,
extending 315 Seventh Residential's time to interpose an
answer to the complaint by thirty (30) days from the date of
said decision; and
(e) Granting such other and further relief to 315 Seventh
Residential as this Court may deem just and proper.
3. 315 Seventh Residential is the owner of certain residential units at the
Building, which is a condominium building. 315 Seventh Residential does not own the T-Mobile
Store, or any other commercial units at the Building. 315 Seventh Residential is not responsible
for the maintenance and/or management of the common arears, exterior of the Building, the
sidewalk outside of the Building, or the T-Mobile Store.
4. Jimenez's sole cause of action involves an injury that he allegedly sustained
on the sidewalk outside of the Building as a result of being struck by an unsecured A-Frame sign
outside of T-Mobile's Store at the Building. As 315 Seventh Residential has absolutely no
involvement with the T-Mobile Store, the sidewalk of the Building, or the exterior of the Building,
itcannot possible be liable for Jimenez's injury.
5. This was made clear in 315 Seventh Residential's underling motion.
6. Jimenez's counsel - who for some reason seeks to
Yet, inexplicably keep
- remain"
315 Seventh Residential in this action asserts in his opposition that "questions as to who
has "performed work on the sidewalk, performed inspections on the sidewalk, amongst other
items"
and that that Jimenez needs discovery to explore what "entity is responsible for the
outside/exterior."
maintenance, management, and/or repair of the
7. There are no questions that remain, and no discovery needed, in light of my
sworn affidavit to the fact that 315 Seventh Residential is not responsible for the
attesting
maintenance of the exterior of the Building and/or sidewalk outside of the Building. Given that,
315 Seventh Residential has never performed work on the sidewalk or inspections of the sidewalk.
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8. If Jimenez's attorney were to depose 315 Residential LLC, this would be
the exact testimony. My sworn statements are supported by documentation, including the first
page to the Offering Plan for the Building showing that 315 Seventh Condominium is the
condominium association for the Building and the Fifteenth Amendment to the Offering Plan
showing that 315 Residential LLC owns only certain units at the Building. (See Exhibits 1 and 2
to underlying motion papers).
9. Also attached hereto collectively as Exhibit 1 is a copy of the relevant
portion of the condominium declaration and by-laws of the condominium.
Elements"
10. Page E-3 of the declaration defines "General Common as all
portions of the Building that are not within the residential or commercial units. This includes the
exterior of the Building and the sidewalk (ifthe sidewalk is within the boundaries of the property).
Page W-7 of the declaration provides that the maintenance of the General Common Elements is
the responsibility of the Board of Managers of the condominium.
11. Page QQ-27, Section 11(b) of the by-laws to the condominium declaration
likewise provides that all maintenance of the General Common Elements is the responsibility of
Board of Managers of the condominium.
12. Page E-3 of the declaration defines "Commercial Limited Common
Elements"
as the street level and cellar level entrances and exits to the commercial units and all
apparatus, installations, systems, equipment and facilities in the Building that serve or benefit
exclusively the commercial units.
13. Page QQ-27, Section 11(d) of the by-laws provides that all maintenance of
the Commercial Limited Common Elements is the responsibility of the owner of the commercial
unit.
315 Seventh Residential is not the condominium and does not own the T-
14.
Mobile Store, a commercial unit at the Building. Thus, under the terms of the condominium
declaration and by-laws, it isnot responsible for the maintenance of the exterior of the Building,
the sidewalk outside of the Building, or the T-Mobile Store. This responsibility is born to 315
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Seventh Condominium and/or the owner ofthe T-Mobile Store and/or T-Mobile, as the leaseholder
of the T-Mobile Store.
15. Since Jimenez's alleged injury was caused by a by an unsecured A-Frame
sign on the sidewalk outside of T-Mobile's Store, 315 Seventh Residential cannot possibly have
any liability here. The alleged injury did not occur inside, or have any connection to, any of the
residential units owned by 315 Seventh Residential.
16. Given my sworn statements and the supporting documentation, clearly
discovery is not warranted before dismissing this action as against 315 Seventh Residential.
17. Also, notably, counsel for co-defendants, 315 Seventh Condominium,
Maxwell Kates and T-Mobile, has submitted an affirmation in support of 315 Seventh
Residential's motion to dismiss and are all willing to withdraw their counterclaims against 315
Seventh Residential. So, it is only Jimenez who continues to take the position that 315 Seventh
Residential should remain in this action.
CONCLUSION
Based upon all of the foregoing, the Court should grant the motion of 315 Seventh
Residential LLC in its entirety, together with such other and rther ief as this Court may deem
just and proper.
Myles Ho
Sworn to before me this
8th day of December 2022
Notary Pu lic
MAIRA BLANCO
Notary Public State of New York
No. 01BL6099807
Qualified in New York County
Commission Expires October 6, 2023
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CERTIFICATION OF COUNSEL
Noelle Picone., an attorney duly admitted to the practice of law in the Courts of the State
of New York, does hereby affirm, pursuant to Rule 17 of the Uniform Rules for the Supreme Court
and County Court, 22 NYCRR 202.8-b(b), that the word count of the processing system used to
prepare the aforesaid document indicates that the document contains no more than 1173 words,
exclusive of the caption, table of contents, table of authorities, and signature block.
Noelle Picone
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Preview
FILED: NEW YORK COUNTY CLERK 12/08/2022 01:35 PM INDEX NO. 153982/2021 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 12/08/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK STEVEN JIMENEZ, Index No. 153982/2021 Plaintiff, -against- REPLY AFFIDAVIT IN FURTHER SUPPORT OF MOTION TO MAXWELL KATES, INC., 315 SEVENTH DISMISS THIS ACTION AS RESIDENTIAL THE 315 SEVENTH AVENUE AGAINST 315 SEVENTH L.L.C., RESIDENTIAL L.L.C. CONDOMINIUM and T-MOBILE USA, INC., Defendants. STATE OF NEW YORK ) : ss.: COUNTY OF NEW YORK ) Myles Horn, being duly sworn, deposes and says: 1. I am a member of 315 Seventh Residentiall, a defendant in this action. I am familiar with the facts and circumstances set forth herein. 2. This reply affidavit, along with the reply affirmation of Noelle Picone, is respectfully submitted in further support of 315 Seventh Residential's motion seeking an order: (a) Vacating 315 Seventh Residential's default in failing to timely respond to the complaint under CPLR § 320(a) and accepting this pre-answer motion to dismiss as 315 Seventh Residential's response to the complaint; (b) Pursuant to CPLR § § 3211(a)(1) and (a)(7), dismissing this action as against 315 Seventh Residential because the complaint fails to state a cause of action as against 315 Seventh Resi ential; ' Pursuant to Section 130-1.1 of the Administrative Rules of (c) the Unified Court System & Uniform Rules of the Trial Courts, granting sanctions as against Jimenez and/or his 1 The Residential' capitalizedterms hereinhave the same meaning as thoseterms defined in 315 Seventh s underlying motion. NPICONE/11033.0013/4048348.1 1 of 5 FILED: NEW YORK COUNTY CLERK 12/08/2022 01:35 PM INDEX NO. 153982/2021 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 12/08/2022 counsel in commencing, and oursuing, this frivolous action as against 315 Seventh Residential; (d) In the event that this pre-answer motion to dismiss isdenied, extending 315 Seventh Residential's time to interpose an answer to the complaint by thirty (30) days from the date of said decision; and (e) Granting such other and further relief to 315 Seventh Residential as this Court may deem just and proper. 3. 315 Seventh Residential is the owner of certain residential units at the Building, which is a condominium building. 315 Seventh Residential does not own the T-Mobile Store, or any other commercial units at the Building. 315 Seventh Residential is not responsible for the maintenance and/or management of the common arears, exterior of the Building, the sidewalk outside of the Building, or the T-Mobile Store. 4. Jimenez's sole cause of action involves an injury that he allegedly sustained on the sidewalk outside of the Building as a result of being struck by an unsecured A-Frame sign outside of T-Mobile's Store at the Building. As 315 Seventh Residential has absolutely no involvement with the T-Mobile Store, the sidewalk of the Building, or the exterior of the Building, itcannot possible be liable for Jimenez's injury. 5. This was made clear in 315 Seventh Residential's underling motion. 6. Jimenez's counsel - who for some reason seeks to Yet, inexplicably keep - remain" 315 Seventh Residential in this action asserts in his opposition that "questions as to who has "performed work on the sidewalk, performed inspections on the sidewalk, amongst other items" and that that Jimenez needs discovery to explore what "entity is responsible for the outside/exterior." maintenance, management, and/or repair of the 7. There are no questions that remain, and no discovery needed, in light of my sworn affidavit to the fact that 315 Seventh Residential is not responsible for the attesting maintenance of the exterior of the Building and/or sidewalk outside of the Building. Given that, 315 Seventh Residential has never performed work on the sidewalk or inspections of the sidewalk. NPICONE/11033.0013/4048348.1 2 of 5 FILED: NEW YORK COUNTY CLERK 12/08/2022 01:35 PM INDEX NO. 153982/2021 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 12/08/2022 8. If Jimenez's attorney were to depose 315 Residential LLC, this would be the exact testimony. My sworn statements are supported by documentation, including the first page to the Offering Plan for the Building showing that 315 Seventh Condominium is the condominium association for the Building and the Fifteenth Amendment to the Offering Plan showing that 315 Residential LLC owns only certain units at the Building. (See Exhibits 1 and 2 to underlying motion papers). 9. Also attached hereto collectively as Exhibit 1 is a copy of the relevant portion of the condominium declaration and by-laws of the condominium. Elements" 10. Page E-3 of the declaration defines "General Common as all portions of the Building that are not within the residential or commercial units. This includes the exterior of the Building and the sidewalk (ifthe sidewalk is within the boundaries of the property). Page W-7 of the declaration provides that the maintenance of the General Common Elements is the responsibility of the Board of Managers of the condominium. 11. Page QQ-27, Section 11(b) of the by-laws to the condominium declaration likewise provides that all maintenance of the General Common Elements is the responsibility of Board of Managers of the condominium. 12. Page E-3 of the declaration defines "Commercial Limited Common Elements" as the street level and cellar level entrances and exits to the commercial units and all apparatus, installations, systems, equipment and facilities in the Building that serve or benefit exclusively the commercial units. 13. Page QQ-27, Section 11(d) of the by-laws provides that all maintenance of the Commercial Limited Common Elements is the responsibility of the owner of the commercial unit. 315 Seventh Residential is not the condominium and does not own the T- 14. Mobile Store, a commercial unit at the Building. Thus, under the terms of the condominium declaration and by-laws, it isnot responsible for the maintenance of the exterior of the Building, the sidewalk outside of the Building, or the T-Mobile Store. This responsibility is born to 315 NPICONE/11033.0013/4048348.1 3 of 5 FILED: NEW YORK COUNTY CLERK 12/08/2022 01:35 PM INDEX NO. 153982/2021 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 12/08/2022 Seventh Condominium and/or the owner ofthe T-Mobile Store and/or T-Mobile, as the leaseholder of the T-Mobile Store. 15. Since Jimenez's alleged injury was caused by a by an unsecured A-Frame sign on the sidewalk outside of T-Mobile's Store, 315 Seventh Residential cannot possibly have any liability here. The alleged injury did not occur inside, or have any connection to, any of the residential units owned by 315 Seventh Residential. 16. Given my sworn statements and the supporting documentation, clearly discovery is not warranted before dismissing this action as against 315 Seventh Residential. 17. Also, notably, counsel for co-defendants, 315 Seventh Condominium, Maxwell Kates and T-Mobile, has submitted an affirmation in support of 315 Seventh Residential's motion to dismiss and are all willing to withdraw their counterclaims against 315 Seventh Residential. So, it is only Jimenez who continues to take the position that 315 Seventh Residential should remain in this action. CONCLUSION Based upon all of the foregoing, the Court should grant the motion of 315 Seventh Residential LLC in its entirety, together with such other and rther ief as this Court may deem just and proper. Myles Ho Sworn to before me this 8th day of December 2022 Notary Pu lic MAIRA BLANCO Notary Public State of New York No. 01BL6099807 Qualified in New York County Commission Expires October 6, 2023 NPICONE/11033.0013/4048348.1 4 of 5 FILED: NEW YORK COUNTY CLERK 12/08/2022 01:35 PM INDEX NO. 153982/2021 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 12/08/2022 CERTIFICATION OF COUNSEL Noelle Picone., an attorney duly admitted to the practice of law in the Courts of the State of New York, does hereby affirm, pursuant to Rule 17 of the Uniform Rules for the Supreme Court and County Court, 22 NYCRR 202.8-b(b), that the word count of the processing system used to prepare the aforesaid document indicates that the document contains no more than 1173 words, exclusive of the caption, table of contents, table of authorities, and signature block. Noelle Picone NPICONE/11033.0013/4048348.1 NPICONE/12090.0154/2939418 5 of 5