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FILED: NEW YORK COUNTY CLERK 11/11/2019 02:56 PM INDEX NO. 155570/2016
NYSCEF DOC. NO. 162 RECEIVED NYSCEF: 11/11/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
..---- ________________ -X
ANTHONY MAGNI,
AFFIRMATION
Plaintiff, IN REPLY
-against-
Index #: 155570/16E
THIRD AVENUE TOWER OWNER, LLC,
POLSINELLI, P.C., CLUNE CONSTRUCTION
COMPANY, L.P., CONCEPTS FOR BUSINESS,
LLC and G&S CONCEPTS, INC.,
Defendants.
____ _____ ____------------X
POLSINELLI, P.C.,
TP Index #: 595198/17E
Third-Party Plaintiff,
-against-
CONCEPTS FOR BUSINESS, LLC
and G&S CONCEPTS, INC.,
Third-Party Defendants.
--- -------------------------------------------X
Diane L. DeVita, an attorney duly admitted to the practice of law in the Courts of the
State ofNew York, affirms the following to be true under penalty of perjury:
1. I am associated with the LAW OFFICES OF TOBIAS & KUHN, attorneys for
the moving Defendant, CONCEPTS FOR BUSINESS, LLC (hereinafter referred to as
"CONCEPTS") in the above-entitled action. I am fully familiar with the facts and circumstances
had herein by virtue of the file maintained by this office.
2. I submit this Affirmation in reply to the opposition submitted on behalf of the
Defendants, THIRD AVENUE TOWER OWNER, LLC and POLSINELLI, P.C. (hereinafter
"OWNER" "POLSINELLI,"
referred to as and respectively), and in further support of the
motion seeking an Order pursuant to CPLR and (9), allcauses of action
§3211(a) (8) dismissing
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and claims asserted against the Defendant, CONCEPTS, due to lack of jurisdiction. I also
submit this Affirmation in partial opposition to the motion brought on behalf of G & S.
3. At the outset, itis crucial to note that the opposition papers are completely
devoice of admissible evidence establishing a basis to exercise jurisdiction over CONCEPTS.
Notably, as clearly set forth in the Affidavit annexed to the motion as Exhibit J, CONCEPTS did
not perform any work or have any connection to the accident site,and the opposition failsto cite
a single piece of admissible evidence to the contrary.
4. Indeed, CONCEPTS merely purchased a shelving unit from Aurora Storage
Products, which shipped itdirectly to the third-party defendant, G & S CONCEPTS, INC., at its
New Jersey, as confirmed by the Purchase Order and accompanying invoices annexed to
CONCEPT'S motion as Exhibit I, which is further confirmed by the affidavit annexed to the
motion brought on behalf of the third-party defendant, G & S CONCEPTS, INC. Accordingly,
itis respectfully submitted that the parties are unable to establish CONCEPTS had a connection
to New York that would serve as a basis to exercise jurisdiction, which is underscored by the
parties'
failure to cite any applicable statute or case law in support of their contention.
5. It is further submitted that shipping shelving units to New York and/or to Aurora,
a registered New York corporation, would not serve as a basis to exercise jurisdiction over
CONCEPTS. It is undisputed that CONCEPTS has always been a limited liability company
located in Kansas and has never been registered to do business in the State of New York;
CONCEPTS has never maintained a principal place of business or an office in the State of New
York. Please refer to the Affidavit and Certification annexed to Exhibit annexed
J, to
CONCEPTS'
motion.
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6. Accordingly, as CONCEPTS is a foreign limited liability company, the Plaintiff
and other parties who have asserted claims against it must demonstrate that CONCEPTS
eñgaged in systemic and continuous level of activity with a level of permanence in New York.
Pacamor Bearings Inc. v. Molan Motors & Coil, Inc., 102 A.D.2d 355 (1984). While Defendants
OWNER and POLS1NELLI attempt to argue that CONCEPTS maintenance of a website that
country"
"appears to advertise and solicit business from the entire appears to indicate that
CONCEPTS has advertised in New York, there is simply no evidence to establish that the use of
a business website can be deemed a systemic and continuous level of activity and, further, there
is no evidence that any of CONCEPTS business activities purported to seek a level of
permanence in the State of New York.
7. Finally, as previously detailed in the summary judgment motion and prior reply
affirmations to oppositions to same, CONCEPTS did not install the shelving units or perform
any work whatsoever at the premises identified as the accident site, as confirmed by John
CONCEPTS'
Archer, President. Defendant CONCEPTS did not play any role whatsoever with
regard to managing, maintaining, supervising, directing or controlling the premises or
construction work taking place at the time of Plaintiff's accident.
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8. Based upon the foregoing, in the event this Honorable Court does not grant the
within motion, itis respectfully submitted that the motion brought on behalf of G & S should
also be denied.
WHEREFORE, it is respectfully requested that the motion be granted in its entirety,
along with such other and further relief as this Honorable Court deems just and proper.
Dated: November 8, 2019
New York, NY
Dia DeVita
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FILED: NEW YORK COUNTY CLERK 11/11/2019 02:56 PM INDEX NO. 155570/2016 NYSCEF DOC. NO. 162 RECEIVED NYSCEF: 11/11/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ..---- ________________ -X ANTHONY MAGNI, AFFIRMATION Plaintiff, IN REPLY -against- Index #: 155570/16E THIRD AVENUE TOWER OWNER, LLC, POLSINELLI, P.C., CLUNE CONSTRUCTION COMPANY, L.P., CONCEPTS FOR BUSINESS, LLC and G&S CONCEPTS, INC., Defendants. ____ _____ ____------------X POLSINELLI, P.C., TP Index #: 595198/17E Third-Party Plaintiff, -against- CONCEPTS FOR BUSINESS, LLC and G&S CONCEPTS, INC., Third-Party Defendants. --- -------------------------------------------X Diane L. DeVita, an attorney duly admitted to the practice of law in the Courts of the State ofNew York, affirms the following to be true under penalty of perjury: 1. I am associated with the LAW OFFICES OF TOBIAS & KUHN, attorneys for the moving Defendant, CONCEPTS FOR BUSINESS, LLC (hereinafter referred to as "CONCEPTS") in the above-entitled action. I am fully familiar with the facts and circumstances had herein by virtue of the file maintained by this office. 2. I submit this Affirmation in reply to the opposition submitted on behalf of the Defendants, THIRD AVENUE TOWER OWNER, LLC and POLSINELLI, P.C. (hereinafter "OWNER" "POLSINELLI," referred to as and respectively), and in further support of the motion seeking an Order pursuant to CPLR and (9), allcauses of action §3211(a) (8) dismissing 1 of 4 FILED: NEW YORK COUNTY CLERK 11/11/2019 02:56 PM INDEX NO. 155570/2016 NYSCEF DOC. NO. 162 RECEIVED NYSCEF: 11/11/2019 and claims asserted against the Defendant, CONCEPTS, due to lack of jurisdiction. I also submit this Affirmation in partial opposition to the motion brought on behalf of G & S. 3. At the outset, itis crucial to note that the opposition papers are completely devoice of admissible evidence establishing a basis to exercise jurisdiction over CONCEPTS. Notably, as clearly set forth in the Affidavit annexed to the motion as Exhibit J, CONCEPTS did not perform any work or have any connection to the accident site,and the opposition failsto cite a single piece of admissible evidence to the contrary. 4. Indeed, CONCEPTS merely purchased a shelving unit from Aurora Storage Products, which shipped itdirectly to the third-party defendant, G & S CONCEPTS, INC., at its New Jersey, as confirmed by the Purchase Order and accompanying invoices annexed to CONCEPT'S motion as Exhibit I, which is further confirmed by the affidavit annexed to the motion brought on behalf of the third-party defendant, G & S CONCEPTS, INC. Accordingly, itis respectfully submitted that the parties are unable to establish CONCEPTS had a connection to New York that would serve as a basis to exercise jurisdiction, which is underscored by the parties' failure to cite any applicable statute or case law in support of their contention. 5. It is further submitted that shipping shelving units to New York and/or to Aurora, a registered New York corporation, would not serve as a basis to exercise jurisdiction over CONCEPTS. It is undisputed that CONCEPTS has always been a limited liability company located in Kansas and has never been registered to do business in the State of New York; CONCEPTS has never maintained a principal place of business or an office in the State of New York. Please refer to the Affidavit and Certification annexed to Exhibit annexed J, to CONCEPTS' motion. 2 of 4 FILED: NEW YORK COUNTY CLERK 11/11/2019 02:56 PM INDEX NO. 155570/2016 NYSCEF DOC. NO. 162 RECEIVED NYSCEF: 11/11/2019 6. Accordingly, as CONCEPTS is a foreign limited liability company, the Plaintiff and other parties who have asserted claims against it must demonstrate that CONCEPTS eñgaged in systemic and continuous level of activity with a level of permanence in New York. Pacamor Bearings Inc. v. Molan Motors & Coil, Inc., 102 A.D.2d 355 (1984). While Defendants OWNER and POLS1NELLI attempt to argue that CONCEPTS maintenance of a website that country" "appears to advertise and solicit business from the entire appears to indicate that CONCEPTS has advertised in New York, there is simply no evidence to establish that the use of a business website can be deemed a systemic and continuous level of activity and, further, there is no evidence that any of CONCEPTS business activities purported to seek a level of permanence in the State of New York. 7. Finally, as previously detailed in the summary judgment motion and prior reply affirmations to oppositions to same, CONCEPTS did not install the shelving units or perform any work whatsoever at the premises identified as the accident site, as confirmed by John CONCEPTS' Archer, President. Defendant CONCEPTS did not play any role whatsoever with regard to managing, maintaining, supervising, directing or controlling the premises or construction work taking place at the time of Plaintiff's accident. 3 of 4 FILED: NEW YORK COUNTY CLERK 11/11/2019 02:56 PM INDEX NO. 155570/2016 NYSCEF DOC. NO. 162 RECEIVED NYSCEF: 11/11/2019 8. Based upon the foregoing, in the event this Honorable Court does not grant the within motion, itis respectfully submitted that the motion brought on behalf of G & S should also be denied. WHEREFORE, it is respectfully requested that the motion be granted in its entirety, along with such other and further relief as this Honorable Court deems just and proper. Dated: November 8, 2019 New York, NY Dia DeVita 4 of 4