Preview
FILED: BRONX COUNTY CLERK 02/06/2023 05:04 PM INDEX NO. 29675/2020E
NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 02/06/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
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DOLKUIS BARRERAS, Index No.: 29675/2020E
Plaintiff, AFFIRMATION IN
-against- SUPPORT
THE CITY OF NEW YORK, NEW YORK CITY HOUSING
AUTHORITY, and L&M BUILDERS GROUP LLC,
Defendants.
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I, Nick Serlin, Esq., an attorney duly admitted to practice law before the Courts of the State of
New York, respectfully affirms under penalty of perjury:
1. I am an associate at the law firm McMAHON, MARTINE & GALLAGHER, LLP,
attorneys for the Defendants in this matter and as such I am fully familiar with the pleadings and
proceedings of the within action.
2. I submit this Affirmation in support of the instant motion seeking summary judgment,
pursuant to CPLR § 3212 (a) dismissing Plaintiff’s complaint and all claims by against THE CITY OF
NEW YORK; and (b) such further relief as to this Court may deem to be just, proper and equitable.
3. This is an action for personal injuries sustained by Plaintiff as a result of fence annexed
to the top of a construction barrier, known as a Yodock barrier, falling onto the Plaintiff’s body as she
was running along a pathway on her way to work at 1805 Crotona Avenue in the Bronx.
4. Plaintiff alleges violation of multiple NYC Building Code violations encompassing
chapters 27, 28, and 33. The alleged violations all pertain to requirements placed upon contractors
performing construction work. However, the instant motion is not being brought on behalf of the general
contractor, L&M BUILDERS GROUP LLC. Therefore, the only question presented with respect to the
instant motion is whether THE CITY OF NEW YORK was negligent.
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5. THE CITY OF NEW YORK does not contest that the incident occurred as alleged
given that there was video depicting the incident.
6. However, as will be demonstrated herein, Plaintiff’s claims against THE CITY OF
NEW YORK must be dismissed because there was no duty of care owed to the Plaintiff by THE CITY
OF NEW YORK.
PROCEDURAL HISTORY
7. Plaintiff commenced this action by filing of a Summons and Verified Complaint on
August 31, 2020. See Exhibit “A”.
8. Issue was joined by L&M BUILDERS GROUP LLC and NEW YORK CITY
HOUSING AUTHORITY by filing of their Answer on November 5, 2020. See Exhibit “B”.
9. On February 16, 2021, an Answer was filed by against THE CITY OF NEW YORK.
See Exhibit “C”.
10. A Case Scheduling Order was uploaded by the Court on August 10, 2021 providing for
dispositive motions to be filed within 90 days after filing of the Note of Issue. See Exhibit “D”.
11. Plaintiff filed a Note of Issue on November 8, 2022. See Exhibit “E”.
12. The instant motion having been filed less than 90 days after the Note of Issue was filed
is therefore timely made.
STANDARD OF REVIEW
13. When no material issue of fact exists and the undisputed facts establish that a party is
entitled to judgment as a matter of law, summary judgment should be granted. Meth v. Kolker, 39 A.D.
2d 651 (1st Dep’t 1972); Long Island R.R. v. Northville Indus., 41 N.Y. 2d 455, 461 (1977); Andre v.
Pomeroy, 35 N.Y. 2d 361 (1974). Motions for summary judgment, “should be granted without
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hesitation where there is no merit to the cause of action.” Blake v. Gardino, 29 N.Y. 2d 876 (1972);
Gibbons v. Hantman, 43 N.Y. 2d 941 (1978).
14. On a motion for summary judgment, once the proponent has made a prima facie
showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any
material issues of fact from the case, the burden shifts to the party opposing the motion to produce
evidentiary proof in admissible form to establish that material issues of fact exist which require a trial.
See Winegrad v. New York University Med. Center, 64 N.Y.2d 851, 853 (1985); Alvarez v. Prospect
Hospital, 68 N.Y.2d 320, 324 (2007). “[W]hen there is no genuine issue to be resolved at trial, the case
should be summarily decided…” See Andre v. Pomeroy, 35 N.Y.2d 361, 364 (1974); Robinson v. City
of New York, 18 A.D.3d 255, 794 N.Y.S.2d 378 (1st Dept. 2005).
15. Affirmations of counsel are insufficient to raise a triable issue of fact. See Sanabria v.
Paduch, 61 AD3d 839, 876 NYS2d 874 (2nd Dept. 2009). Also insufficient are “conclusory allegations,
expressions of hope, and unsubstantiated assertions that a jury might find an issue of fact where none
truly exists.” See Jordan Mfg. Corp. v. Zimmerman, 169 AD2d 815, 565 NYS2d 184 (2nd Dept. 1991).
16. The party opposing summary judgment "must assemble and lay bare [its] affirmative
proof to demonstrate that genuine issues of fact exist" and "the issue must be shown to be real, not
feigned since a sham or frivolous issue will not preclude summary relief.” See Kornfeld v. NRX
Technologies, Inc., 93 AD2d 772, 461 N.Y.S.2d 342 (1st Dept. 1983).
ARGUMENT
THE CITY OF NEW YORK IS NOT LIABLE FOR THE SUBJECT INCIDENT AS THERE
WAS NO DUTY OF CARE OWED TO THE PLAINTIFF
17. Administrative Code § 7-201(c)(2) "limits the City's duty of care over municipal
streets and sidewalks by imposing liability only for those defects or hazardous conditions which its
officials have been actually notified exist at a specified location." Katz v. City of New York, 87 NY2d
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241, 243, 661 N.E.2d 1374, 638 N.Y.S.2d 593. “Prior written notice of a defect is a condition precedent
which [a] plaintiff is required to plead and prove to maintain an action against the City". Id. at 243.
“Failure to demonstrate prior written notice leaves [a] plaintiff without legal recourse against the City".
Id.
18. The only exceptions to prior written notice are when the City “created the defect or
hazard through an affirmative act of negligence and where a 'special use' confers a special benefit upon
the City." Yarborough v City of New York, 10 NY3d 726, 728, 882 N.E.2d 873, 853 N.Y.S.2d 261.
19. The subject incident occurred along a walkway at 1805 Crotona Avenue on January 16,
2020. See Plaintiff’s deposition transcript annexed hereto as Exhibit F, p. 32:4-18.
20. The walkway is not a municipal street or sidewalk pursuant to Administrative Code §
7-201(c)(2) as the property is owned by owned by Cross Bronx Preservation LLC with an ownership
interest by NEW YORK CITY HOUSING AUTHORITY. See L&M BUILDERS GROUP LLC’s
deposition transcript annexed hereto as Exhibit G, pp. 13:25, 14:1-7.
21. Regardless, THE CITY OF NEW YORK could not possibly have had notice of a
defective condition. Fencing was attached to the unsecured Yodock barriers less than two hours before
the subject incident. Exhibit G, p. 27:14-23.
22. Nor would the exception to notice apply as there is no evidence that THE CITY OF
NEW YORK had any involvement with the project at 1805 Crotona Avenue on the date of the incident
aside from the issuance of permits by the Department of Transportation which has no relevance with
respect to this matter.
23. THE CITY OF NEW YORK did not hire any contractors, including L&M BUILDERS
GROUP LLC, to perform any work at 1805 Crotona Avenue as this was undertaken by Cross Bronx
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Preservation LLC and NEW YORK CITY HOUSING AUTHORITY. Exhibit G, pp. 12:6-25, 13:1-
24.
24. The Yodock barriers and fencing were proper but for the barriers not being weighed
down at the time of the incident which L&M BUILDERS GROUP LLC acknowledges was done by
laborers from a company called CTR at the direction of L&M BUILDERS GROUP LLC. Exhibit G,
pp. 15:19-25, 20:1-12, 21:2-13, 27:5-13, 38:3-10, 56:22-25, 57:11-4., 68:5-13.
25. There was no special use conferred upon THE CITY OF NEW YORK as the property
was owned by the NEW YORK CITY HOUSING AUTHORITY not THE CITY OF NEW YORK.
Exhibit G, 13:25, 14:1-7.
26. It bears noting that Plaintiff elected to waive any deposition of THE CITY OF NEW
YORK before filing their Note of Issue which further suggests that Plaintiff is aware that THE CITY
OF NEW YORK is not subject to liability for the subject incident.
CONCLUSION
27. There is simply no evidence that THE CITY OF NEW YORK owed a duty of care to
the Plaintiff nor that THE CITY OF NEW YORK was negligent.
28. Plaintiff cannot possibly offer any evidence to raise a question of fact that the THE
CITY OF NEW YORK bears any liability for this incident.
WHEREFORE, it is respectfully requested that the Court issue an Order, pursuant to CPLR §
3212, (a) dismissing Plaintiff’s complaint and all claims by against THE CITY OF NEW YORK; and
(b) such further relief as to this Court may deem to be just, proper and equitable.
Dated: February 6, 2023
Brooklyn, New York
Respectfully Submitted,
____________________________________
Nick Serlin, Esq.
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ATTORNEY CERTIFICATION PURSUANT TO RULE 202.8-b(c)
I, Nick Serlin, an attorney duly admitted to practice law before the Courts of the State of New York,
hereby certify that this Affirmation in Support complies with the word count limit set forth by Rule
202.9-b(c) of the Supreme Court because it contains 1519 words excluding the parts of the
memorandum exempted by Rule 202.8-b(b). In preparing this certification, I have relied upon the word
count of the word processing system used to prepare the Statement of Material Facts.
Dated: February 6, 2023
Brooklyn, New York
Respectfully Submitted,
____________________________________
Nick Serlin, Esq.
.
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Preview
FILED: BRONX COUNTY CLERK 02/06/2023 05:04 PM INDEX NO. 29675/2020E NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 02/06/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX -------------------------------------------------------------------------x DOLKUIS BARRERAS, Index No.: 29675/2020E Plaintiff, AFFIRMATION IN -against- SUPPORT THE CITY OF NEW YORK, NEW YORK CITY HOUSING AUTHORITY, and L&M BUILDERS GROUP LLC, Defendants. ------------------------------------------------------------------------x I, Nick Serlin, Esq., an attorney duly admitted to practice law before the Courts of the State of New York, respectfully affirms under penalty of perjury: 1. I am an associate at the law firm McMAHON, MARTINE & GALLAGHER, LLP, attorneys for the Defendants in this matter and as such I am fully familiar with the pleadings and proceedings of the within action. 2. I submit this Affirmation in support of the instant motion seeking summary judgment, pursuant to CPLR § 3212 (a) dismissing Plaintiff’s complaint and all claims by against THE CITY OF NEW YORK; and (b) such further relief as to this Court may deem to be just, proper and equitable. 3. This is an action for personal injuries sustained by Plaintiff as a result of fence annexed to the top of a construction barrier, known as a Yodock barrier, falling onto the Plaintiff’s body as she was running along a pathway on her way to work at 1805 Crotona Avenue in the Bronx. 4. Plaintiff alleges violation of multiple NYC Building Code violations encompassing chapters 27, 28, and 33. The alleged violations all pertain to requirements placed upon contractors performing construction work. However, the instant motion is not being brought on behalf of the general contractor, L&M BUILDERS GROUP LLC. Therefore, the only question presented with respect to the instant motion is whether THE CITY OF NEW YORK was negligent. 1 of 6 FILED: BRONX COUNTY CLERK 02/06/2023 05:04 PM INDEX NO. 29675/2020E NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 02/06/2023 5. THE CITY OF NEW YORK does not contest that the incident occurred as alleged given that there was video depicting the incident. 6. However, as will be demonstrated herein, Plaintiff’s claims against THE CITY OF NEW YORK must be dismissed because there was no duty of care owed to the Plaintiff by THE CITY OF NEW YORK. PROCEDURAL HISTORY 7. Plaintiff commenced this action by filing of a Summons and Verified Complaint on August 31, 2020. See Exhibit “A”. 8. Issue was joined by L&M BUILDERS GROUP LLC and NEW YORK CITY HOUSING AUTHORITY by filing of their Answer on November 5, 2020. See Exhibit “B”. 9. On February 16, 2021, an Answer was filed by against THE CITY OF NEW YORK. See Exhibit “C”. 10. A Case Scheduling Order was uploaded by the Court on August 10, 2021 providing for dispositive motions to be filed within 90 days after filing of the Note of Issue. See Exhibit “D”. 11. Plaintiff filed a Note of Issue on November 8, 2022. See Exhibit “E”. 12. The instant motion having been filed less than 90 days after the Note of Issue was filed is therefore timely made. STANDARD OF REVIEW 13. When no material issue of fact exists and the undisputed facts establish that a party is entitled to judgment as a matter of law, summary judgment should be granted. Meth v. Kolker, 39 A.D. 2d 651 (1st Dep’t 1972); Long Island R.R. v. Northville Indus., 41 N.Y. 2d 455, 461 (1977); Andre v. Pomeroy, 35 N.Y. 2d 361 (1974). Motions for summary judgment, “should be granted without 2 of 6 FILED: BRONX COUNTY CLERK 02/06/2023 05:04 PM INDEX NO. 29675/2020E NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 02/06/2023 hesitation where there is no merit to the cause of action.” Blake v. Gardino, 29 N.Y. 2d 876 (1972); Gibbons v. Hantman, 43 N.Y. 2d 941 (1978). 14. On a motion for summary judgment, once the proponent has made a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which require a trial. See Winegrad v. New York University Med. Center, 64 N.Y.2d 851, 853 (1985); Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 (2007). “[W]hen there is no genuine issue to be resolved at trial, the case should be summarily decided…” See Andre v. Pomeroy, 35 N.Y.2d 361, 364 (1974); Robinson v. City of New York, 18 A.D.3d 255, 794 N.Y.S.2d 378 (1st Dept. 2005). 15. Affirmations of counsel are insufficient to raise a triable issue of fact. See Sanabria v. Paduch, 61 AD3d 839, 876 NYS2d 874 (2nd Dept. 2009). Also insufficient are “conclusory allegations, expressions of hope, and unsubstantiated assertions that a jury might find an issue of fact where none truly exists.” See Jordan Mfg. Corp. v. Zimmerman, 169 AD2d 815, 565 NYS2d 184 (2nd Dept. 1991). 16. The party opposing summary judgment "must assemble and lay bare [its] affirmative proof to demonstrate that genuine issues of fact exist" and "the issue must be shown to be real, not feigned since a sham or frivolous issue will not preclude summary relief.” See Kornfeld v. NRX Technologies, Inc., 93 AD2d 772, 461 N.Y.S.2d 342 (1st Dept. 1983). ARGUMENT THE CITY OF NEW YORK IS NOT LIABLE FOR THE SUBJECT INCIDENT AS THERE WAS NO DUTY OF CARE OWED TO THE PLAINTIFF 17. Administrative Code § 7-201(c)(2) "limits the City's duty of care over municipal streets and sidewalks by imposing liability only for those defects or hazardous conditions which its officials have been actually notified exist at a specified location." Katz v. City of New York, 87 NY2d 3 of 6 FILED: BRONX COUNTY CLERK 02/06/2023 05:04 PM INDEX NO. 29675/2020E NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 02/06/2023 241, 243, 661 N.E.2d 1374, 638 N.Y.S.2d 593. “Prior written notice of a defect is a condition precedent which [a] plaintiff is required to plead and prove to maintain an action against the City". Id. at 243. “Failure to demonstrate prior written notice leaves [a] plaintiff without legal recourse against the City". Id. 18. The only exceptions to prior written notice are when the City “created the defect or hazard through an affirmative act of negligence and where a 'special use' confers a special benefit upon the City." Yarborough v City of New York, 10 NY3d 726, 728, 882 N.E.2d 873, 853 N.Y.S.2d 261. 19. The subject incident occurred along a walkway at 1805 Crotona Avenue on January 16, 2020. See Plaintiff’s deposition transcript annexed hereto as Exhibit F, p. 32:4-18. 20. The walkway is not a municipal street or sidewalk pursuant to Administrative Code § 7-201(c)(2) as the property is owned by owned by Cross Bronx Preservation LLC with an ownership interest by NEW YORK CITY HOUSING AUTHORITY. See L&M BUILDERS GROUP LLC’s deposition transcript annexed hereto as Exhibit G, pp. 13:25, 14:1-7. 21. Regardless, THE CITY OF NEW YORK could not possibly have had notice of a defective condition. Fencing was attached to the unsecured Yodock barriers less than two hours before the subject incident. Exhibit G, p. 27:14-23. 22. Nor would the exception to notice apply as there is no evidence that THE CITY OF NEW YORK had any involvement with the project at 1805 Crotona Avenue on the date of the incident aside from the issuance of permits by the Department of Transportation which has no relevance with respect to this matter. 23. THE CITY OF NEW YORK did not hire any contractors, including L&M BUILDERS GROUP LLC, to perform any work at 1805 Crotona Avenue as this was undertaken by Cross Bronx 4 of 6 FILED: BRONX COUNTY CLERK 02/06/2023 05:04 PM INDEX NO. 29675/2020E NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 02/06/2023 Preservation LLC and NEW YORK CITY HOUSING AUTHORITY. Exhibit G, pp. 12:6-25, 13:1- 24. 24. The Yodock barriers and fencing were proper but for the barriers not being weighed down at the time of the incident which L&M BUILDERS GROUP LLC acknowledges was done by laborers from a company called CTR at the direction of L&M BUILDERS GROUP LLC. Exhibit G, pp. 15:19-25, 20:1-12, 21:2-13, 27:5-13, 38:3-10, 56:22-25, 57:11-4., 68:5-13. 25. There was no special use conferred upon THE CITY OF NEW YORK as the property was owned by the NEW YORK CITY HOUSING AUTHORITY not THE CITY OF NEW YORK. Exhibit G, 13:25, 14:1-7. 26. It bears noting that Plaintiff elected to waive any deposition of THE CITY OF NEW YORK before filing their Note of Issue which further suggests that Plaintiff is aware that THE CITY OF NEW YORK is not subject to liability for the subject incident. CONCLUSION 27. There is simply no evidence that THE CITY OF NEW YORK owed a duty of care to the Plaintiff nor that THE CITY OF NEW YORK was negligent. 28. Plaintiff cannot possibly offer any evidence to raise a question of fact that the THE CITY OF NEW YORK bears any liability for this incident. WHEREFORE, it is respectfully requested that the Court issue an Order, pursuant to CPLR § 3212, (a) dismissing Plaintiff’s complaint and all claims by against THE CITY OF NEW YORK; and (b) such further relief as to this Court may deem to be just, proper and equitable. Dated: February 6, 2023 Brooklyn, New York Respectfully Submitted, ____________________________________ Nick Serlin, Esq. 5 of 6 FILED: BRONX COUNTY CLERK 02/06/2023 05:04 PM INDEX NO. 29675/2020E NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 02/06/2023 ATTORNEY CERTIFICATION PURSUANT TO RULE 202.8-b(c) I, Nick Serlin, an attorney duly admitted to practice law before the Courts of the State of New York, hereby certify that this Affirmation in Support complies with the word count limit set forth by Rule 202.9-b(c) of the Supreme Court because it contains 1519 words excluding the parts of the memorandum exempted by Rule 202.8-b(b). In preparing this certification, I have relied upon the word count of the word processing system used to prepare the Statement of Material Facts. Dated: February 6, 2023 Brooklyn, New York Respectfully Submitted, ____________________________________ Nick Serlin, Esq. . 6 of 6