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1900 Bausch & Lomb Place
Rochester, New York 14604
WOODS 1900 Main Place Tower
_OVIATT | Buffalo, New York 14202
P 585.987.2800 £ 585.454.3968 GILMAN, P 716.248.3200 716.854.5100
LLP:
Writer's Telephone Number: 585.987.2911 ATTORNEYS
Writer's Fax Number: 585.362.4621 woodsoviatt.com
Email: stephenburke@woodsoviatt.com
PLEASE NOTE THAT MY DIRECT DIAL TELEPHONE NUMBER AND FAX, AS WELL AS OUR MAILING, HAVE CHANGED
~- PLEASE UPDATE YOUR RECORDS
August 22, 2019
Via NYSCEF
Honorable Deborah H. Karalunas
Onondaga County Court House, Room 401
401 Montgomery Street
Syracuse, New York 13202
Re: Prusik vy. Liberty Mutual GroupInc., etc., et al.
Index No.: E008588-2018
Dear Justice Karalunas:
I am writing to Your Honor to address the "Reply Affidavit" and exhibits. submitted via
NYSCEFby Geddes Federal Savings and Loan Association (NYSCEF Document No. 148). Geddes’
Affidavit is plainly improper and should not be considered by this Court for the numerousreasonsset
forth in this letter.
First, Geddes has already submitted opposition to Plaintiffs Motion for Summary Judgement,
and neither the CPLR nor the Rules for the Commercial Division allow submission of a sur-reply
without express permission in advance from the Court. See Commercial Division Rule 18. Geddes
"Reply Affidavit" is an improper sur-reply attempting to insert additional arguments that are not
properly before the Court in opposition to Plaintiff's Motion for Summary Judgement. Meka v
Pufpaff, 167 A.D.3d 1547 (Fourth Dept., 2018) ("Contrary to plaintiffs' further contention, the court
properly disregarded the affidavit submitted with their surreply papers [citation omitted]. It is
generally improper for a party seeking relief by cross motion to submit evidence for thefirst time in
sutreply papers, and ‘plaintiffs have offered no justification for failing to submit the affidavit with
their cross motion papers."). If the Court were to accept Geddes most recent submission, thenit
should allow the Plaintiff to submit a response to Geddes' sur-reply, and that pattern would repeat
itself ad infinitum.
Second, Exhibits Cl, C2, C3, C4, and C5 submitted with Geddes' "Reply Affidavit" contain
photographstaken from a vandalism incident which occurredin the fall of 2016, almosta year before
the theft that is the subject ofthis case. Geddes submits these exhibits in an improper attemptto
conflate the two incidents, despite them having no connection to the current action. See NYSCEF
Document No. 151-155. Furthermore, these exhibits are submitted with no foundational affidavit
from a person with knowledge of the accuracy of the images and thus are inadmissible on a motion
for summary judgment. See, GIF Marketing, Inc. v. Colonial Aluminum Sales,Inc., 66 N.Y.2d 965,
(7566777: ) The art of representing people°
August 22, 2019
Page 2
968 (1985) ("an affidavit or affirmation of an attorney without personal knowledge of the facts cannot
‘supply the evidentiary showing necessary to successfully resist the motion' [citation omitted]. ‘Such
an affirmation by counsel is without evidentiary value and thus unavailing’ (Zuckerman v City of
New York, 49 NY2d 557, 563, supra).").
Finally, Exhibits D, E, and F submitted with Geddes "Reply Affidavit" contain hearsay
statements allegedly made by employees of Liberty Mutual. The "Claim File Narratives" are
presented by Geddes with statements offered for the truth of the matter asserted, but without
establishing the foundation for any of the statements and are thus inadmissible Eddyv. Tops Friendly
Markets, 91 A.D.2d 1203 (Fourth Dept., 1983) ("A party opposing a motion for summary judgment
must produce evidentiary proof in admissible form sufficient to require a trial of material questions of
fact...Further, the existence of a factual issue cannot be established on the hearsay information of one
with no personal knowledgeofthe facts [citation omitted].").
Geddes "Reply Affidavit" is a plainly impropersur-reply affidavit, offers misleading evidence
unrelated to the incident in this case, and contains improper hearsay evidence with no affidavit by a
person with knowledge, the Court should disregard the affidavit and its exhibits in entirety.
Thank you for your attention to this matter. Please feel free to contact me with any questions
or concerns you may have.
Truly yours,
WOODS OVJATT GILMAN LLP
phen P. Burke
Please direct responses to Rochester Office
SPB/mjo
Cc Brian Prusik via email
(7566777:} The art of representing people®
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1900 Bausch & Lomb Place Rochester, New York 14604 WOODS 1900 Main Place Tower _OVIATT | Buffalo, New York 14202 P 585.987.2800 £ 585.454.3968 GILMAN, P 716.248.3200 716.854.5100 LLP: Writer's Telephone Number: 585.987.2911 ATTORNEYS Writer's Fax Number: 585.362.4621 woodsoviatt.com Email: stephenburke@woodsoviatt.com PLEASE NOTE THAT MY DIRECT DIAL TELEPHONE NUMBER AND FAX, AS WELL AS OUR MAILING, HAVE CHANGED ~- PLEASE UPDATE YOUR RECORDS August 22, 2019 Via NYSCEF Honorable Deborah H. Karalunas Onondaga County Court House, Room 401 401 Montgomery Street Syracuse, New York 13202 Re: Prusik vy. Liberty Mutual GroupInc., etc., et al. Index No.: E008588-2018 Dear Justice Karalunas: I am writing to Your Honor to address the "Reply Affidavit" and exhibits. submitted via NYSCEFby Geddes Federal Savings and Loan Association (NYSCEF Document No. 148). Geddes’ Affidavit is plainly improper and should not be considered by this Court for the numerousreasonsset forth in this letter. First, Geddes has already submitted opposition to Plaintiffs Motion for Summary Judgement, and neither the CPLR nor the Rules for the Commercial Division allow submission of a sur-reply without express permission in advance from the Court. See Commercial Division Rule 18. Geddes "Reply Affidavit" is an improper sur-reply attempting to insert additional arguments that are not properly before the Court in opposition to Plaintiff's Motion for Summary Judgement. Meka v Pufpaff, 167 A.D.3d 1547 (Fourth Dept., 2018) ("Contrary to plaintiffs' further contention, the court properly disregarded the affidavit submitted with their surreply papers [citation omitted]. It is generally improper for a party seeking relief by cross motion to submit evidence for thefirst time in sutreply papers, and ‘plaintiffs have offered no justification for failing to submit the affidavit with their cross motion papers."). If the Court were to accept Geddes most recent submission, thenit should allow the Plaintiff to submit a response to Geddes' sur-reply, and that pattern would repeat itself ad infinitum. Second, Exhibits Cl, C2, C3, C4, and C5 submitted with Geddes' "Reply Affidavit" contain photographstaken from a vandalism incident which occurredin the fall of 2016, almosta year before the theft that is the subject ofthis case. Geddes submits these exhibits in an improper attemptto conflate the two incidents, despite them having no connection to the current action. See NYSCEF Document No. 151-155. Furthermore, these exhibits are submitted with no foundational affidavit from a person with knowledge of the accuracy of the images and thus are inadmissible on a motion for summary judgment. See, GIF Marketing, Inc. v. Colonial Aluminum Sales,Inc., 66 N.Y.2d 965, (7566777: ) The art of representing people° August 22, 2019 Page 2 968 (1985) ("an affidavit or affirmation of an attorney without personal knowledge of the facts cannot ‘supply the evidentiary showing necessary to successfully resist the motion' [citation omitted]. ‘Such an affirmation by counsel is without evidentiary value and thus unavailing’ (Zuckerman v City of New York, 49 NY2d 557, 563, supra)."). Finally, Exhibits D, E, and F submitted with Geddes "Reply Affidavit" contain hearsay statements allegedly made by employees of Liberty Mutual. The "Claim File Narratives" are presented by Geddes with statements offered for the truth of the matter asserted, but without establishing the foundation for any of the statements and are thus inadmissible Eddyv. Tops Friendly Markets, 91 A.D.2d 1203 (Fourth Dept., 1983) ("A party opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact...Further, the existence of a factual issue cannot be established on the hearsay information of one with no personal knowledgeofthe facts [citation omitted]."). Geddes "Reply Affidavit" is a plainly impropersur-reply affidavit, offers misleading evidence unrelated to the incident in this case, and contains improper hearsay evidence with no affidavit by a person with knowledge, the Court should disregard the affidavit and its exhibits in entirety. Thank you for your attention to this matter. Please feel free to contact me with any questions or concerns you may have. Truly yours, WOODS OVJATT GILMAN LLP phen P. Burke Please direct responses to Rochester Office SPB/mjo Cc Brian Prusik via email (7566777:} The art of representing people®