Preview
FILED: NEW YORK COUNTY CLERK 10/04/2019 02:55 PM INDEX NO. 150253/2017
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 10/04/2019
MJM:gy
10/ 2/19
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
JEFFREY GOLDSTEIN and KELLIE GOLDSTEIN, ! INDEX NO.
150253/2017
Plaintiffs,
- against - | AFFIRMATION
| IN OPPOSITION
THE CITY OF NEW YORK, THE NEW YORK CITY
DEPARTMENT OF TRANSPORTATION AND
CONSOLIDATED EDISON COMPANY OF NEW YORK, j
INC.,
Defendants.
CONSOLIDATED EDISON COMPANY OF NEW YORK, | THIRD-PARTY
INC., INDEX NO.:
596024/2017
Third-Party Plaintiff,
- against -
CAC INDUSTRIES, INC.,
Third-Party Defendant.
CONSOLIDATED EDISON COMPANY OF NEW YORK, SECOND
INC., THIRD-PARTY
INDEX NO.:
Second Third-Party Plaintiff,
- against -
CARLO LIZZA & SONS PAVING, INC.,
Second Third-Party Defendant.
MICHAEL J. McNULTY, an attorney admitted to practice in the courts of this
state, associated with Nadine Rivellese, the of record for defendant, Consolidated
attorney
Our File No.:
2017-000639/
FN2012060
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FILED: NEW YORK COUNTY CLERK 10/04/2019 02:55 PM INDEX NO. 150253/2017
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 10/04/2019
Edison Company of New York, Inc. (hereinafter "Con Edison"), affirms the following under
the penalties of perjury and pursuant to CPLR 2106:
1. I am fully familiar with the facts and circumstances surrounding the
within litigation based on the materials and information in the file maintained by my
office.
2. I submit this affirmation in opposition to plaintiff's motion to strike
Con Edison's Answer for failing to produce a further deposition witness in the instant
action.
3. This is an action for personal injuries sustained by plaintiff on
February 22, 2016 when he allegedly fell from a foot scooter due to a defect in the roadway
located on 9th Street near its intersection with Fifth Avenue in Manhattan.
4. Contrary to plaintiff's counsel's assertions, Con Edison has not
willfully or contumaciously delayed in the subject action.
5. Con Edison appeared in this action in February, 2017. In December
2017, Con Edison impleaded CAC Industries, Inc. In February 2018, Plaintiff served an
Amended Summons and Complaint adding CAC as a direct defendant. In August 2018,
Con Edison impleaded the City milling contractor, Carlo Lizza. In February 2019,
plaintiff commenced a separate action against Carlo Lizza under Index Number
151924/19 and no appearance was made by defendant. By Order dated June 3, 2019, this
Court granted Con Edison's motion for a default judgment against Carlo Lizza.
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FILED: NEW YORK COUNTY CLERK 10/04/2019 02:55 PM INDEX NO. 150253/2017
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 10/04/2019
6. In
July 2019, after discovery exchanged, Con Edison signed a
Stipulation of Discontinuance as to CAC Industries as further discovery indicated that
CAC's work was on the opposite side of the intersection from the subject accident
location. Although no Stipulation is e-filed, apparently, from the rider of the instant
motion, the plaintiff also discontinued the direct action against CAC Industries, Inc. The
only Con Edison excavation in the intersection was the work performed by CAC.
6. By Order filed July 30, 2019, the City was required to produce the
records regarding Carlo Lizza's work in the subject intersection. The deposition of "Con
Edison's Project Manager/CCI was scheduled for September 20, 2019. However, it isnot
clear from the Order, or plaintiff's motion, which construction project the plaintiff is
referring to in its demand.
7. Con Edison is ready and willing to produce the Chief Construction
Inspector regarding CAC's work at a time and place set by the Court and agreeable by
the parties.
8. The relief sought by the plaintiff is drastic and unwarranted. Delays
have not been willful or contumacious.
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FILED: NEW YORK COUNTY CLERK 10/04/2019 02:55 PM INDEX NO. 150253/2017
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 10/04/2019
WHEREFORE, defendant, Consolidated Edison Company of New York,
Inc. respectfully requests that the Court deny plaintiff's motion and grant such other
relief deemed to be proper.
Subscribed to this 3rd of 2019.
day October,
MICHÉÈL J. McNULTY
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FILED: NEW YORK COUNTY CLERK 10/04/2019 02:55 PM INDEX NO. 150253/2017
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 10/04/2019
INDI?X NO.,: 150253/2017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
JEFFREY GOLDSTEIN and KELLIE GOLDSTEIN,
Plaintiff,
- against -
THE CITY OF NEW YORK,
THE NEW YORK CITY DEPARTMENT
OF TRANSPORATION AND
CONSOLIDATED EDISON COMPANY
OF NEW YORK, INC.,
Defendants.
AFFIRMATION IN OPPOSITION
NADINE RIVELLESE
Attorney for
Consolidated Edison Company of New York, Inc.
4 Irving Place, Room 1800
New York, New York 10003-3598
Tel. No. (212) 460-3355
FAX No. (212) 677-5849
To Service of a copy of the within
is hereby admitted.
Dated: 19
Attorney(s) for
PLEASE TAKE NOTICE:
[ ] NOTICE OF ENTRY
that the within is a true copy of an entered in the office of the clerk of the within named court on
19 .
[ ] NOTICE OF SETTLEMENT
that an Order of which the within is a truecopy will be presented for settlement to the HON. one of
the judges of the within named Court, at on 19 at M.
Dated:
Yours, etc.,
NADINE RIVELLESE
Refer all communications to: MICHAEL J. McNULTY
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Preview
FILED: NEW YORK COUNTY CLERK 10/04/2019 02:55 PM INDEX NO. 150253/2017 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 10/04/2019 MJM:gy 10/ 2/19 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK JEFFREY GOLDSTEIN and KELLIE GOLDSTEIN, ! INDEX NO. 150253/2017 Plaintiffs, - against - | AFFIRMATION | IN OPPOSITION THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION AND CONSOLIDATED EDISON COMPANY OF NEW YORK, j INC., Defendants. CONSOLIDATED EDISON COMPANY OF NEW YORK, | THIRD-PARTY INC., INDEX NO.: 596024/2017 Third-Party Plaintiff, - against - CAC INDUSTRIES, INC., Third-Party Defendant. CONSOLIDATED EDISON COMPANY OF NEW YORK, SECOND INC., THIRD-PARTY INDEX NO.: Second Third-Party Plaintiff, - against - CARLO LIZZA & SONS PAVING, INC., Second Third-Party Defendant. MICHAEL J. McNULTY, an attorney admitted to practice in the courts of this state, associated with Nadine Rivellese, the of record for defendant, Consolidated attorney Our File No.: 2017-000639/ FN2012060 1 of 5 FILED: NEW YORK COUNTY CLERK 10/04/2019 02:55 PM INDEX NO. 150253/2017 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 10/04/2019 Edison Company of New York, Inc. (hereinafter "Con Edison"), affirms the following under the penalties of perjury and pursuant to CPLR 2106: 1. I am fully familiar with the facts and circumstances surrounding the within litigation based on the materials and information in the file maintained by my office. 2. I submit this affirmation in opposition to plaintiff's motion to strike Con Edison's Answer for failing to produce a further deposition witness in the instant action. 3. This is an action for personal injuries sustained by plaintiff on February 22, 2016 when he allegedly fell from a foot scooter due to a defect in the roadway located on 9th Street near its intersection with Fifth Avenue in Manhattan. 4. Contrary to plaintiff's counsel's assertions, Con Edison has not willfully or contumaciously delayed in the subject action. 5. Con Edison appeared in this action in February, 2017. In December 2017, Con Edison impleaded CAC Industries, Inc. In February 2018, Plaintiff served an Amended Summons and Complaint adding CAC as a direct defendant. In August 2018, Con Edison impleaded the City milling contractor, Carlo Lizza. In February 2019, plaintiff commenced a separate action against Carlo Lizza under Index Number 151924/19 and no appearance was made by defendant. By Order dated June 3, 2019, this Court granted Con Edison's motion for a default judgment against Carlo Lizza. 2 of 5 FILED: NEW YORK COUNTY CLERK 10/04/2019 02:55 PM INDEX NO. 150253/2017 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 10/04/2019 6. In July 2019, after discovery exchanged, Con Edison signed a Stipulation of Discontinuance as to CAC Industries as further discovery indicated that CAC's work was on the opposite side of the intersection from the subject accident location. Although no Stipulation is e-filed, apparently, from the rider of the instant motion, the plaintiff also discontinued the direct action against CAC Industries, Inc. The only Con Edison excavation in the intersection was the work performed by CAC. 6. By Order filed July 30, 2019, the City was required to produce the records regarding Carlo Lizza's work in the subject intersection. The deposition of "Con Edison's Project Manager/CCI was scheduled for September 20, 2019. However, it isnot clear from the Order, or plaintiff's motion, which construction project the plaintiff is referring to in its demand. 7. Con Edison is ready and willing to produce the Chief Construction Inspector regarding CAC's work at a time and place set by the Court and agreeable by the parties. 8. The relief sought by the plaintiff is drastic and unwarranted. Delays have not been willful or contumacious. 3 of 5 FILED: NEW YORK COUNTY CLERK 10/04/2019 02:55 PM INDEX NO. 150253/2017 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 10/04/2019 WHEREFORE, defendant, Consolidated Edison Company of New York, Inc. respectfully requests that the Court deny plaintiff's motion and grant such other relief deemed to be proper. Subscribed to this 3rd of 2019. day October, MICHÉÈL J. McNULTY 4 of 5 FILED: NEW YORK COUNTY CLERK 10/04/2019 02:55 PM INDEX NO. 150253/2017 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 10/04/2019 INDI?X NO.,: 150253/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK JEFFREY GOLDSTEIN and KELLIE GOLDSTEIN, Plaintiff, - against - THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF TRANSPORATION AND CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Defendants. AFFIRMATION IN OPPOSITION NADINE RIVELLESE Attorney for Consolidated Edison Company of New York, Inc. 4 Irving Place, Room 1800 New York, New York 10003-3598 Tel. No. (212) 460-3355 FAX No. (212) 677-5849 To Service of a copy of the within is hereby admitted. Dated: 19 Attorney(s) for PLEASE TAKE NOTICE: [ ] NOTICE OF ENTRY that the within is a true copy of an entered in the office of the clerk of the within named court on 19 . [ ] NOTICE OF SETTLEMENT that an Order of which the within is a truecopy will be presented for settlement to the HON. one of the judges of the within named Court, at on 19 at M. Dated: Yours, etc., NADINE RIVELLESE Refer all communications to: MICHAEL J. McNULTY 5 of 5