Preview
INDEX NO. 151434/2020
NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 06/21/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
ALLSTATE INDEMNITY COMPANY AS Index No.: 151434/2020
SUBROGEE OF SWAROOPA REDDY DESAI,
AFFIRMATION
Plaintiff,
-against-
JMJ TURTLE BAY HOLDINGS, LLC, DENNIS
PERTROCELLI, RUBIN MENG, ANTHONY
PANTALEONI, GENESIS WILSON, THE
RELATED COMPANY, LP and RELATED
MANAGEMENT,
Defendants.
JOSEPH GREEN, ESQ., being an attorney duly admitted to practice law in the Courts of
the State of New York, hereby affirms the following under the penalties of perjury and pursuant
to the CPLR:
1 Iam Senior Counsel at Hickey Smith Dodd LLP, attorneys for defendants THE
RELATED COMPANIES L.P. s/h/a THE RELATED COMPANY, LP and RELATED
MANAGEMENT L.P. s/h/a RELATED MANAGEMENT and am fully familiar with this matter
based upon the file maintained by this office.
2 This affirmation is submitted in support of the instant cross motion seeking the
dismissal of plaintiff's complaint pursuant to CPLR Rule 3216 for the plaintiff's unreasonable
neglect of prosecute this matter and for failing to make a showing sufficient to satisfy the strict
requirement of Rule 3216. On the same basis, the instant affirmation is also submitted in
opposition to Plaintiff's Motion to Extend Plaintiff's Time to File Note of Issue.
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3 As set forth below, CPLR 3216 requires that where a party has been served with a
written demand to serve a Note of Issue within 90 days and has failed to file the note of issue or
to have sought an extension within the 90 day period, dismissal is appropriate “unless the
defaulting party shows justifiable excuse for the delay and a good and meritorious cause of
action.” See, CPLR 3216(e). Baczkowski v. D.A. Collins Costr. Co. 89 N.Y.2d 499 (Court of
Appeals 1997). Here, in plaintiff's motion to extend time to file the Note of Issue, plaintiff
has
failed to make any showing whatsoever of either excuse or merit. Here, while a failure to make a
showing on either of these grounds warrants dismissal, Plaintiff can proffer neither a showing of
“reasonable excuse” for the delay nor a showing of merit in its claims against the moving
defendants on the cross motion. As such, it is submitted that under the law of the state of New
York and the facts in this case, dismissal is warranted.
PROCEDURAL HISTORY
4 This is a subrogation action commenced by ALLSTATE INSURANCE
COMPANY as sobrogee of Swaroopa Reddy Desai who it claims suffered property damage in
the amount of $139,778.56 as the result of fire which occurred in certain units of a property
known as 250 E. 53 Street, New York, New York (the “Premises”), on a February 10, 2017.
Specifically, the Complaint alleges that the fire started in Apt. 2902, that “apartment 2902 is
owned by defendant RUBIN MENG who had a tenant contract with JMJ TURTLE BAY
HODINGS, LLC and DENNIS PERTOCELLI, who held a Ryder with Defendants, Anthony
PANTALEONI and GESIS WILSON in a building owned by THE RELATED COMPANY and
Managed by RELATED MANAGEMENT™. See, Summons and Complaint attached as Exhibit
“A”
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5 The Plaintiff commenced action on February 7, 2020, by filing a Summons and
Verified Complaint in the Supreme Court for the State of New York, New York County. Service
of the Summons and Verified Complaint was made on Defendants on March 13, 2020. A Copy
of Plaintiff's Summons and Verified Complaint is annexed hereto as Exhibit “A”.
6. Moving defendants joined issue by service of their Verified Answer on or about
July 10, 2020. Co-defendants JMJ TURTLE BAY HOLDINGS LLC and DENNIS
PETROCELLI joined issue by service of their Answer on March 20, 2020. Co-defendant
GENESIS WILSON joined issue by service ofan Answer on February 22, 2021. A copy of all
three of the Verified Answers are annexed hereto as Exhibit “B”.
7 On April 14, 2021, a Preliminary Conference was held outlining the discovery
obligations of this matter. Plaintiffs were to file their Note of Issue by December 31, 2021. A
copy of the Court’s Preliminary Conference Order is annexed hereto as Exhibit “C”.
8 On October 20, 2021 plaintiff was served by the moving defendants via certified
mail with a 90 day notice to place the case on the trial calendar pursuant to CPLR R. 3216. See,
90 Day Notice, affidavit of service and United States Post Office notification of delivery
attached as Exhibit “D”. More than 90 days have passed since the plaintiff was served with the
90 Day Notice.
9 Thereafter on December 1, 2021, Plaintiffs filed a Motion to Extend its Time to
File the Note of Issue and on March 18, 2022, the Court granted Plaintiffs’ Motion extending the
Note of Issue filing to May 31, 2022.
10. On May 10, 2022 the plaintiff's subrogor SWAROOPA REDDY DESAI
appeared for her deposition and testified for one hour and abruptly ended her deposition advising
that she understood the deposition would only be one hour. An attempt to reschedule the
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remaining six hours of testimony was attempted but was not complied with by plaintiff despite
the defendant advising that they were ready to proceed.
11. Now, over 9 months following the filing of a 90 day notice to place the matter on
the trial calendar, plaintiff still has not filed a Note of Issue, and significantly, fails to support the
instant application with an affidavit setting forth a reasonable excuse or provided an affidavit of
merit setting forth the basis of the claim against the moving defendant. CPLR 3216(e). On that
basis the plaintiffs motion should be denied and the matter should be dismissed.
LEGAL BASIS FOR DISMISSAL
12. New York State CPLR 3216 (e) permits that in the event a party served with a 90
day notice “fails to file a note of issue with such ninety day period, the court may take such
initiative or grant such motion unless the said party shows justifiable excuse for the delay and a
good and meritorious cause of action”.
13. As such, plaintiff is compelled to make a showing which your affirmant contends
can not be made here. Specifically, plaintiff must come forward with an affidavit of merit and a
justifiable excuse. In the absence of such a showing, dismissal is warranted.
WHEREFORE, it is respectfully requested that the Defendants’ Cross- Motion be
granted in its entirety, that the instant motion of the plaintiff seeking to extend time to file a Note
of Issue be denied, together with such other and further relief as this Court may deem just and
proper.
Dated: New York, NY
June 21, 2022
Pel
Joseph Green
jgreen@hickeysmith.com
HICKEY SMITH DODD LLP
1040 Avenue of the Americas, Suite 9C
New York, NY 10018
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INDEX NO. 151434/2020
NYSCEF DOC. NO. 73 RECEIVED NYSCEF 06/21/2022
Telephone: (212) 729-3565
Direct Dial: (914) 898-3228
Facsimile: (914) 898-3228
Hickey Smith Matter Number: 4721
Attorneys for Defendants
The Related Company, LP and Related Management
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CERTIFICATION
In accordance with Uniform Rules of the New York State Trial Courts 202.8-b, the
undersigned certifies that the word count in this NOTICE OF CROSS MOTION, AFFIDAVIT
AND STATEMENT OF FACT, as established using the word count on the word-processing
system used to prepare it, is 2008 words.
Dated: New York, NY
June 21, 2022
Joseph Green
jgreen@hickeysmith.com
HICKEY SMITH DODD LLP
1040 Avenue of the Americas, Suite 9C
New York, NY 10018
Telephone: (212) 729-3565
Direct Dial: (914) 898-3228
Facsimile: (914) 898-3228
Hickey Smith Matter Number: 4721
Attorneys for Defendants
The Related Company, LP and Related Management
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INDEX NO. 151434/2020
NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 06/21/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
ALLSTATE INDEMNITY COMPANY AS Index No.: 151434/2020
SUBROGEE OF SWAROOPA REDDY DESAI,
Plaintiff,
-against-
JMJ TURTLE BAY HOLDINGS, LLC, DENNIS
PERTROCELLI, RUBIN MENG, ANTHONY
PANTALEONI, GENESIS WILSON, THE
RELATED COMPANY, LP and RELATED
MANAGEMENT,
Defendants.
NOTICE OF CROSS MOTION, AFFIRMATION IN OPPOSITION TO MOTION TO
EXTEND NOTE OF ISSUE AND IN SUPPORT OF CROSS-MOTION, AFFIDAVIT OF
FACTS, CERTIFICATION
CERTIFICATION: | hereby certify that, to the best of my knowledge, information and
belief, after an inquiry reasonable under the circumstances, the foregoing papers that I have
served, filed or submitted to the court in this action are not frivolous as defined in subsection (c)
of Section 130-1.1 of the Rules of the Chief Administrator of the Courts.
22ZA
2
Joseph Green
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INDEX NO. 151434/2020 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 06/21/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ALLSTATE INDEMNITY COMPANY AS Index No.: 151434/2020 SUBROGEE OF SWAROOPA REDDY DESAI, AFFIRMATION Plaintiff, -against- JMJ TURTLE BAY HOLDINGS, LLC, DENNIS PERTROCELLI, RUBIN MENG, ANTHONY PANTALEONI, GENESIS WILSON, THE RELATED COMPANY, LP and RELATED MANAGEMENT, Defendants. JOSEPH GREEN, ESQ., being an attorney duly admitted to practice law in the Courts of the State of New York, hereby affirms the following under the penalties of perjury and pursuant to the CPLR: 1 Iam Senior Counsel at Hickey Smith Dodd LLP, attorneys for defendants THE RELATED COMPANIES L.P. s/h/a THE RELATED COMPANY, LP and RELATED MANAGEMENT L.P. s/h/a RELATED MANAGEMENT and am fully familiar with this matter based upon the file maintained by this office. 2 This affirmation is submitted in support of the instant cross motion seeking the dismissal of plaintiff's complaint pursuant to CPLR Rule 3216 for the plaintiff's unreasonable neglect of prosecute this matter and for failing to make a showing sufficient to satisfy the strict requirement of Rule 3216. On the same basis, the instant affirmation is also submitted in opposition to Plaintiff's Motion to Extend Plaintiff's Time to File Note of Issue. lof 7 INDEX NO. 151434/2020 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 06/21/2022 3 As set forth below, CPLR 3216 requires that where a party has been served with a written demand to serve a Note of Issue within 90 days and has failed to file the note of issue or to have sought an extension within the 90 day period, dismissal is appropriate “unless the defaulting party shows justifiable excuse for the delay and a good and meritorious cause of action.” See, CPLR 3216(e). Baczkowski v. D.A. Collins Costr. Co. 89 N.Y.2d 499 (Court of Appeals 1997). Here, in plaintiff's motion to extend time to file the Note of Issue, plaintiff has failed to make any showing whatsoever of either excuse or merit. Here, while a failure to make a showing on either of these grounds warrants dismissal, Plaintiff can proffer neither a showing of “reasonable excuse” for the delay nor a showing of merit in its claims against the moving defendants on the cross motion. As such, it is submitted that under the law of the state of New York and the facts in this case, dismissal is warranted. PROCEDURAL HISTORY 4 This is a subrogation action commenced by ALLSTATE INSURANCE COMPANY as sobrogee of Swaroopa Reddy Desai who it claims suffered property damage in the amount of $139,778.56 as the result of fire which occurred in certain units of a property known as 250 E. 53 Street, New York, New York (the “Premises”), on a February 10, 2017. Specifically, the Complaint alleges that the fire started in Apt. 2902, that “apartment 2902 is owned by defendant RUBIN MENG who had a tenant contract with JMJ TURTLE BAY HODINGS, LLC and DENNIS PERTOCELLI, who held a Ryder with Defendants, Anthony PANTALEONI and GESIS WILSON in a building owned by THE RELATED COMPANY and Managed by RELATED MANAGEMENT™. See, Summons and Complaint attached as Exhibit “A” 2 0f 7 INDEX NO. 151434/2020 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 06/21/2022 5 The Plaintiff commenced action on February 7, 2020, by filing a Summons and Verified Complaint in the Supreme Court for the State of New York, New York County. Service of the Summons and Verified Complaint was made on Defendants on March 13, 2020. A Copy of Plaintiff's Summons and Verified Complaint is annexed hereto as Exhibit “A”. 6. Moving defendants joined issue by service of their Verified Answer on or about July 10, 2020. Co-defendants JMJ TURTLE BAY HOLDINGS LLC and DENNIS PETROCELLI joined issue by service of their Answer on March 20, 2020. Co-defendant GENESIS WILSON joined issue by service ofan Answer on February 22, 2021. A copy of all three of the Verified Answers are annexed hereto as Exhibit “B”. 7 On April 14, 2021, a Preliminary Conference was held outlining the discovery obligations of this matter. Plaintiffs were to file their Note of Issue by December 31, 2021. A copy of the Court’s Preliminary Conference Order is annexed hereto as Exhibit “C”. 8 On October 20, 2021 plaintiff was served by the moving defendants via certified mail with a 90 day notice to place the case on the trial calendar pursuant to CPLR R. 3216. See, 90 Day Notice, affidavit of service and United States Post Office notification of delivery attached as Exhibit “D”. More than 90 days have passed since the plaintiff was served with the 90 Day Notice. 9 Thereafter on December 1, 2021, Plaintiffs filed a Motion to Extend its Time to File the Note of Issue and on March 18, 2022, the Court granted Plaintiffs’ Motion extending the Note of Issue filing to May 31, 2022. 10. On May 10, 2022 the plaintiff's subrogor SWAROOPA REDDY DESAI appeared for her deposition and testified for one hour and abruptly ended her deposition advising that she understood the deposition would only be one hour. An attempt to reschedule the 3 0f 7 INDEX NO. 151434/2020 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 06/21/2022 remaining six hours of testimony was attempted but was not complied with by plaintiff despite the defendant advising that they were ready to proceed. 11. Now, over 9 months following the filing of a 90 day notice to place the matter on the trial calendar, plaintiff still has not filed a Note of Issue, and significantly, fails to support the instant application with an affidavit setting forth a reasonable excuse or provided an affidavit of merit setting forth the basis of the claim against the moving defendant. CPLR 3216(e). On that basis the plaintiffs motion should be denied and the matter should be dismissed. LEGAL BASIS FOR DISMISSAL 12. New York State CPLR 3216 (e) permits that in the event a party served with a 90 day notice “fails to file a note of issue with such ninety day period, the court may take such initiative or grant such motion unless the said party shows justifiable excuse for the delay and a good and meritorious cause of action”. 13. As such, plaintiff is compelled to make a showing which your affirmant contends can not be made here. Specifically, plaintiff must come forward with an affidavit of merit and a justifiable excuse. In the absence of such a showing, dismissal is warranted. WHEREFORE, it is respectfully requested that the Defendants’ Cross- Motion be granted in its entirety, that the instant motion of the plaintiff seeking to extend time to file a Note of Issue be denied, together with such other and further relief as this Court may deem just and proper. Dated: New York, NY June 21, 2022 Pel Joseph Green jgreen@hickeysmith.com HICKEY SMITH DODD LLP 1040 Avenue of the Americas, Suite 9C New York, NY 10018 4o0f 7 INDEX NO. 151434/2020 NYSCEF DOC. NO. 73 RECEIVED NYSCEF 06/21/2022 Telephone: (212) 729-3565 Direct Dial: (914) 898-3228 Facsimile: (914) 898-3228 Hickey Smith Matter Number: 4721 Attorneys for Defendants The Related Company, LP and Related Management 5 of 7 INDEX NO. 151434/2020 NYSCEF DOC. NO. 73 RECEIVED NYSCEF 06/21/2022 CERTIFICATION In accordance with Uniform Rules of the New York State Trial Courts 202.8-b, the undersigned certifies that the word count in this NOTICE OF CROSS MOTION, AFFIDAVIT AND STATEMENT OF FACT, as established using the word count on the word-processing system used to prepare it, is 2008 words. Dated: New York, NY June 21, 2022 Joseph Green jgreen@hickeysmith.com HICKEY SMITH DODD LLP 1040 Avenue of the Americas, Suite 9C New York, NY 10018 Telephone: (212) 729-3565 Direct Dial: (914) 898-3228 Facsimile: (914) 898-3228 Hickey Smith Matter Number: 4721 Attorneys for Defendants The Related Company, LP and Related Management 6 of 7 INDEX NO. 151434/2020 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 06/21/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ALLSTATE INDEMNITY COMPANY AS Index No.: 151434/2020 SUBROGEE OF SWAROOPA REDDY DESAI, Plaintiff, -against- JMJ TURTLE BAY HOLDINGS, LLC, DENNIS PERTROCELLI, RUBIN MENG, ANTHONY PANTALEONI, GENESIS WILSON, THE RELATED COMPANY, LP and RELATED MANAGEMENT, Defendants. NOTICE OF CROSS MOTION, AFFIRMATION IN OPPOSITION TO MOTION TO EXTEND NOTE OF ISSUE AND IN SUPPORT OF CROSS-MOTION, AFFIDAVIT OF FACTS, CERTIFICATION CERTIFICATION: | hereby certify that, to the best of my knowledge, information and belief, after an inquiry reasonable under the circumstances, the foregoing papers that I have served, filed or submitted to the court in this action are not frivolous as defined in subsection (c) of Section 130-1.1 of the Rules of the Chief Administrator of the Courts. 22ZA 2 Joseph Green 7 of 7