Preview
FILED: NEW YORK COUNTY CLERK 04/15/2019 04:06 PM INDEX NO. 155570/2016
NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 04/15/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
________ _..------ - ---··-------- -------------X
ANTHONY MAGNI,
AFFIRMATION IN REPLY
Plaintiff,
-against- Index No.: 155570/16E
THIRD AVENUE TOWER OWNER, LLC, POLSINELL1, P.C.,
CLUNE CONSTRUCTION COMPANY, L.P., CONCEPTS FOR
BUSINESS, LLC., and G&S CONCEPTS, INC.
Defendants.
__ --- ----------------------------------X
POLSINELLI, P.C.,
TP Index No.: 595198/l7E
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 of New York, affirms the following to be true under penalty of perjury:
1. I am associated with the LAW OFFICES OF COHEN & KUHN, attorneys for the
moving defendant, CONCEPTS FOR BUSINESS, LLC, in the above-entitled action, hereinafter
referred to as CONCEPTS. 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 Clune
Construction Comparry, L.P. and in further support of the motion seeking an Order pursuant to
CPLR Section 3211 (a) (8) and (9), dismissing allcauses of action and claims asserted against
the defendant,'CONCEPTS, due to lack of jurisdiction.
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NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 04/15/2019
3. At the outset, itis critical to note that Clune Construction Company, L.P.'s
Order."
opposition is based upon a document that itrefers to as a "Work However, it is
Order"
respectfully submitted that Clune Construction Compãñy, L.P.'s reliance upon the "Work
is fatally flawed for several significant reasons. Notably, the document is not authenticated in
any manner and, as such, is not admissible. Moreover and notwithstanding the iñadalissibility of
"Quotation"
the document, itis merely a setting forth pieces for different shelving units, despite
Order."
Clune Construction Company L.P.'s misguided attempts to label ita "Work Indeed, the
document is completely devoid of any admissible establishing that CONCEPTS FOR
BUSINESS LLC installed or delivered shelving units to New York.
4. Moreover, as previously detailed in the summary judgment motion and reply to
the plaintiff's opposition, the evidence unequivocally demonstrates that CONCEPTS FOR
BUSINESS LLC obtained the shelving units from Aurora, which is the entity that shipped the
shelving units directly to the third-party defendant, G & S CONCEPTS, INC., at itsNew Jersey
address, specifically identified as 287 Cheesequake Road, Parlin, New Jersey. Similarly,
CONCEPTS FOR BUSINESS LLC did not install the shelving units or perform any work
whatsoever at the premises identified as the accident site,as definitively confirmed by John
Archer, who serves as the company's President, while the Purchase Orders do not contain any
information to the contrary. Please refer to the Affidavit and Certification annexed to the motion
as Exhibit J. Additionally, CONCEPTS FOR BUSINESS LLC 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 the plaintiff's accident, as also
confirmed by John Archer. Please refer to the Affidavit and Certification annexed to the motion
as Exhibit J.
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NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 04/15/2019
5. Furthermore, even asmming arguendo that the parties offered admissible evidence
to support his claims, itis respectfully submitted that shipping shelving units to New York would
not serve as a basis to exercise jurisdiction over CONCEPTS FOR BUSINESS LLC.
Significantly, itis undisputed that CONCEPTS FOR BUSINESS LLC has always been a limited
liability company located in Kansas, which has never been registered to do business in the State
of New York. It isalso undisputed that CONCEPTS FOR BUSINESS LLC 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 the motion as Exhibit J. Accordingly, it is
respectfully submitted that the parties do not have a basis to support arguments that CONCEPTS
FOR BUSINESS LLC engaged in a systemic and continuous activity. Pacamor Bearings Inc.
v. Molan Motors & Coil, Inc. 102 A.D.2d 355 (1984).
6. In addition to the foregoing, itis respectfully submitted that Clune Construction
Corspañy, LP.'s reliance upon the case of Taca International Airlines, S.A. v. Rolls-Royce of
England, 15 N.Y.2d 97 (1965) is completely misplaced. In Taca International Airlines, S.A.
v. Rolls-Royce of England, 15 N.Y.2d 97 (1965), the court denied Rolls-Royce of England,
Ltd.'s motion to dismiss seeking a dismissal based upon lack of personal jurisdiction based upon
a finding that there were issues regarding whether Rolls-Royce of England, Ltd., was doing
business in New York through Rolls-Royce, Inc., as its separately incorporated department or
instrumentality. Quite contrastingly, in the case at bar, neither CONCEPTS FOR BUSINESS
LLC does not maintain a presence in New York and did not have a Registered Agent for Service
of Process in New York, and did not have any relations:hips with any companies that did so, as
set forth in the affidavit annexed to the motion as Exhibit J.
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NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 04/15/2019
WHEREFORE, itis respectfully requested that the motion be granted in itsentirety,
along with such other and further relief as this Honorable Court deems just and proper.
Dated: New York, New York
April 15, 2019
Diane L. De ^ta
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NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 04/15/2019
. SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
Index No.: Index No.: 155570/16E/TP Index No.: 595198/17E
-
ANTHONY MAGNI,
Plaintiff,
-against-
THLRD AVENUE TOWER OWNER, LLC, POLSINELLI, P.C.,
CLUNE CONSTRUCTION COMPANY, L.P., CONCEPTS FOR
BUSIlpESS, LLC., and G&S CONCEPTS, INC.
Defendants.
********************************tt†ttt*******************************
POLSINELLI, P.C.,
Third-Party Plaintiff,
-against-
CONCEPTS FOR BUSINESS, LLC and
G&S CONCEPTS, INC.,
Third-Party Defendants.
AFFIRMATION IN REPLY
THE LAW OFFICES OF TOBIAS & KUHN
Attorneys forDefendant
CONCEPTS FOR BUSINESS, LLC
Ojice and Post Ofice Address,Telephone
100 William Suite
Street, 920
New York, NY 10038
(212)553-8700
FileNo.: Y43L41146-001
To: .
Attorney(s) for
Service of a copy of the within
Is hereby admitted.
Dated: 04/15/19
Diane L. DeVita, Esq.
Attorneys forDefendant
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Preview
FILED: NEW YORK COUNTY CLERK 04/15/2019 04:06 PM INDEX NO. 155570/2016 NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 04/15/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ________ _..------ - ---··-------- -------------X ANTHONY MAGNI, AFFIRMATION IN REPLY Plaintiff, -against- Index No.: 155570/16E THIRD AVENUE TOWER OWNER, LLC, POLSINELL1, P.C., CLUNE CONSTRUCTION COMPANY, L.P., CONCEPTS FOR BUSINESS, LLC., and G&S CONCEPTS, INC. Defendants. __ --- ----------------------------------X POLSINELLI, P.C., TP Index No.: 595198/l7E 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 of New York, affirms the following to be true under penalty of perjury: 1. I am associated with the LAW OFFICES OF COHEN & KUHN, attorneys for the moving defendant, CONCEPTS FOR BUSINESS, LLC, in the above-entitled action, hereinafter referred to as CONCEPTS. 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 Clune Construction Comparry, L.P. and in further support of the motion seeking an Order pursuant to CPLR Section 3211 (a) (8) and (9), dismissing allcauses of action and claims asserted against the defendant,'CONCEPTS, due to lack of jurisdiction. 1 of 5 FILED: NEW YORK COUNTY CLERK 04/15/2019 04:06 PM INDEX NO. 155570/2016 NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 04/15/2019 3. At the outset, itis critical to note that Clune Construction Company, L.P.'s Order." opposition is based upon a document that itrefers to as a "Work However, it is Order" respectfully submitted that Clune Construction Compãñy, L.P.'s reliance upon the "Work is fatally flawed for several significant reasons. Notably, the document is not authenticated in any manner and, as such, is not admissible. Moreover and notwithstanding the iñadalissibility of "Quotation" the document, itis merely a setting forth pieces for different shelving units, despite Order." Clune Construction Company L.P.'s misguided attempts to label ita "Work Indeed, the document is completely devoid of any admissible establishing that CONCEPTS FOR BUSINESS LLC installed or delivered shelving units to New York. 4. Moreover, as previously detailed in the summary judgment motion and reply to the plaintiff's opposition, the evidence unequivocally demonstrates that CONCEPTS FOR BUSINESS LLC obtained the shelving units from Aurora, which is the entity that shipped the shelving units directly to the third-party defendant, G & S CONCEPTS, INC., at itsNew Jersey address, specifically identified as 287 Cheesequake Road, Parlin, New Jersey. Similarly, CONCEPTS FOR BUSINESS LLC did not install the shelving units or perform any work whatsoever at the premises identified as the accident site,as definitively confirmed by John Archer, who serves as the company's President, while the Purchase Orders do not contain any information to the contrary. Please refer to the Affidavit and Certification annexed to the motion as Exhibit J. Additionally, CONCEPTS FOR BUSINESS LLC 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 the plaintiff's accident, as also confirmed by John Archer. Please refer to the Affidavit and Certification annexed to the motion as Exhibit J. 2 of 5 FILED: NEW YORK COUNTY CLERK 04/15/2019 04:06 PM INDEX NO. 155570/2016 NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 04/15/2019 5. Furthermore, even asmming arguendo that the parties offered admissible evidence to support his claims, itis respectfully submitted that shipping shelving units to New York would not serve as a basis to exercise jurisdiction over CONCEPTS FOR BUSINESS LLC. Significantly, itis undisputed that CONCEPTS FOR BUSINESS LLC has always been a limited liability company located in Kansas, which has never been registered to do business in the State of New York. It isalso undisputed that CONCEPTS FOR BUSINESS LLC 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 the motion as Exhibit J. Accordingly, it is respectfully submitted that the parties do not have a basis to support arguments that CONCEPTS FOR BUSINESS LLC engaged in a systemic and continuous activity. Pacamor Bearings Inc. v. Molan Motors & Coil, Inc. 102 A.D.2d 355 (1984). 6. In addition to the foregoing, itis respectfully submitted that Clune Construction Corspañy, LP.'s reliance upon the case of Taca International Airlines, S.A. v. Rolls-Royce of England, 15 N.Y.2d 97 (1965) is completely misplaced. In Taca International Airlines, S.A. v. Rolls-Royce of England, 15 N.Y.2d 97 (1965), the court denied Rolls-Royce of England, Ltd.'s motion to dismiss seeking a dismissal based upon lack of personal jurisdiction based upon a finding that there were issues regarding whether Rolls-Royce of England, Ltd., was doing business in New York through Rolls-Royce, Inc., as its separately incorporated department or instrumentality. Quite contrastingly, in the case at bar, neither CONCEPTS FOR BUSINESS LLC does not maintain a presence in New York and did not have a Registered Agent for Service of Process in New York, and did not have any relations:hips with any companies that did so, as set forth in the affidavit annexed to the motion as Exhibit J. 3 of 5 FILED: NEW YORK COUNTY CLERK 04/15/2019 04:06 PM INDEX NO. 155570/2016 NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 04/15/2019 WHEREFORE, itis respectfully requested that the motion be granted in itsentirety, along with such other and further relief as this Honorable Court deems just and proper. Dated: New York, New York April 15, 2019 Diane L. De ^ta 4 of 5 FILED: NEW YORK COUNTY CLERK 04/15/2019 04:06 PM INDEX NO. 155570/2016 NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 04/15/2019 . SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Index No.: Index No.: 155570/16E/TP Index No.: 595198/17E - ANTHONY MAGNI, Plaintiff, -against- THLRD AVENUE TOWER OWNER, LLC, POLSINELLI, P.C., CLUNE CONSTRUCTION COMPANY, L.P., CONCEPTS FOR BUSIlpESS, LLC., and G&S CONCEPTS, INC. Defendants. ********************************tt†ttt******************************* POLSINELLI, P.C., Third-Party Plaintiff, -against- CONCEPTS FOR BUSINESS, LLC and G&S CONCEPTS, INC., Third-Party Defendants. AFFIRMATION IN REPLY THE LAW OFFICES OF TOBIAS & KUHN Attorneys forDefendant CONCEPTS FOR BUSINESS, LLC Ojice and Post Ofice Address,Telephone 100 William Suite Street, 920 New York, NY 10038 (212)553-8700 FileNo.: Y43L41146-001 To: . Attorney(s) for Service of a copy of the within Is hereby admitted. Dated: 04/15/19 Diane L. DeVita, Esq. Attorneys forDefendant 5 of 5