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FILED: ERIE COUNTY CLERK 03/23/2021 03:39 PM INDEX NO. 809591/2020
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 03/23/2021
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
UTICA NATIONAL INSURANCE COMPANY OF
OHIO AS SUBROGEE OF SPRINGVILLE-GRIFFITH
INSTITUTE CENTRAL SCHOOL DISTRICT, Index No. 809591/2020
Plaintiff,
vs. REPLY AFFIDAVIT
OF ATTORNEY
CONCEPT CONSTRUCTION CORP.,
ARRIC
MARK P. DELLA POSTA
CORP.,
GUARD CONTRACTING CORP., and
STROMECKI ENGINEERS, P.C.,
Defendants.
STATE OF NEW YORK )
COUNTY OF ERIE ) ss.:
CITY OF BUFFALO )
MARK P. DELLA POSTA, ESQ., being duly sworn, deposes and says:
1. I am an attorney at law, duly authorized to practice in the State of New
York, and am the attorney for the defendant, Arric Corp., ("Arric").
2. That I make this Affidavit in Reply to the Affirmation of Attorney Kris E.
Lawrence, Esq., dated March 18, 2021, and in further support of the Motion for
Dismissal/Summary Judgment filed on behalf of defendant Arric.
3. As is more fully set forth in the Reply Affirmation of Elizabeth A. Kraengel,
Esq. dated March 22, 2021; the Reply Affidavit of Richard A. Clack, Esq. sworn to on
23rd "1-16"
the day of March, 2021; and in paragraphs of the Reply Affidavit of Brian
23rd
Sutter, Esq., sworn to on the day of March, 2021, counsel for the plaintiff
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FILED: ERIE COUNTY CLERK 03/23/2021 03:39 PM INDEX NO. 809591/2020
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 03/23/2021
acknowledges that the subrogation waiver provision contained in its client's contract
with Concept Construction Corp. ("Concept") apply, not only to Concept, but also its
subcontractors and sub-subcontractors, including Arric and Guard Contracting
Corp.("Guard"). As such, the plaintiff's Complaint against those parties is without merit
and should be dismissed.
4. Your deponent hereby incorporates herewith and adopts the arguments
set forth in the Reply Affirmation of Elizabeth A. Kraengel, Esq., the Reply Affidavit of
"1-16"
Richard A. Clack, and paragraphs of the Reply Affidavit of Brian Sutter, Esq., as
if more fully set forth and recited herein.
5. Further, the undisputed the proof before this Court shows that Stromecki
Engineers, P.C. ("Stromecki") was providing services pursuant to a contract between
Stromecki and Guard on a time and materials basis. Notably, the Waiver of
Subrogation clause in Concept's contract applies to "all sub-
expressly subcontractors,
"
subcontractors, agents and employees . . . and makes no requirement that any such
subcontractors/sub-subcontractors are working pursuant to a written or signed contract.
As such, the plaintiff's claim against Stromecki must similarly be dismissed pursuant to
Subrogation"
paragraph 11.3.7 "Waivers of portion of Article 11 of the General
Conditions, a copy of which is attached as Exhibit F to your deponent's original motion
papers.
6. None of the case law cited by plaintiff's counsel in his opposition papers,
nor any of the plaintiff's attempts to somehow distinguish the case of Hodgson vs.
(4th
Isolatek International Corp., 300 A.D.2d 1051 Dept., 2002), provide any legal
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FILED: ERIE COUNTY CLERK 03/23/2021 03:39 PM INDEX NO. 809591/2020
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 03/23/2021
support for the plaintiff's opposition to either Stromecki's Motion for Summary
Judgment, Concept's Motion for Summary Judgment or the Motions to
Dismiss/Summary Judgment by Guard and Arric.
WHEREFORE, your deponent requests an Order dismissing the plaintiff's
Complaint against Arric and all cross-claims against Arric by co-defendants Guard,
Concept and Stromecki, on the merits and with prejudice, together with such other,
further and different relief as this Court deems just, proper and equitable, and costs and
disbursements of this motion.
MARK P. DELLA POSTA
Sworn to fore me this
23rd
day arch, 2021.
JacqtÃélin M. ayden
Public - State of New York
Notary
Qualified in Erie County
License #01HA4994529
My Commission Expires: 04/06/22
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FILED: ERIE COUNTY CLERK 03/23/2021 03:39 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 03/23/2021 STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE UTICA NATIONAL INSURANCE COMPANY OF OHIO AS SUBROGEE OF SPRINGVILLE-GRIFFITH INSTITUTE CENTRAL SCHOOL DISTRICT, Index No. 809591/2020 Plaintiff, vs. REPLY AFFIDAVIT OF ATTORNEY CONCEPT CONSTRUCTION CORP., ARRIC MARK P. DELLA POSTA CORP., GUARD CONTRACTING CORP., and STROMECKI ENGINEERS, P.C., Defendants. STATE OF NEW YORK ) COUNTY OF ERIE ) ss.: CITY OF BUFFALO ) MARK P. DELLA POSTA, ESQ., being duly sworn, deposes and says: 1. I am an attorney at law, duly authorized to practice in the State of New York, and am the attorney for the defendant, Arric Corp., ("Arric"). 2. That I make this Affidavit in Reply to the Affirmation of Attorney Kris E. Lawrence, Esq., dated March 18, 2021, and in further support of the Motion for Dismissal/Summary Judgment filed on behalf of defendant Arric. 3. As is more fully set forth in the Reply Affirmation of Elizabeth A. Kraengel, Esq. dated March 22, 2021; the Reply Affidavit of Richard A. Clack, Esq. sworn to on 23rd "1-16" the day of March, 2021; and in paragraphs of the Reply Affidavit of Brian 23rd Sutter, Esq., sworn to on the day of March, 2021, counsel for the plaintiff Page 1 of 3 1 of 3 FILED: ERIE COUNTY CLERK 03/23/2021 03:39 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 03/23/2021 acknowledges that the subrogation waiver provision contained in its client's contract with Concept Construction Corp. ("Concept") apply, not only to Concept, but also its subcontractors and sub-subcontractors, including Arric and Guard Contracting Corp.("Guard"). As such, the plaintiff's Complaint against those parties is without merit and should be dismissed. 4. Your deponent hereby incorporates herewith and adopts the arguments set forth in the Reply Affirmation of Elizabeth A. Kraengel, Esq., the Reply Affidavit of "1-16" Richard A. Clack, and paragraphs of the Reply Affidavit of Brian Sutter, Esq., as if more fully set forth and recited herein. 5. Further, the undisputed the proof before this Court shows that Stromecki Engineers, P.C. ("Stromecki") was providing services pursuant to a contract between Stromecki and Guard on a time and materials basis. Notably, the Waiver of Subrogation clause in Concept's contract applies to "all sub- expressly subcontractors, " subcontractors, agents and employees . . . and makes no requirement that any such subcontractors/sub-subcontractors are working pursuant to a written or signed contract. As such, the plaintiff's claim against Stromecki must similarly be dismissed pursuant to Subrogation" paragraph 11.3.7 "Waivers of portion of Article 11 of the General Conditions, a copy of which is attached as Exhibit F to your deponent's original motion papers. 6. None of the case law cited by plaintiff's counsel in his opposition papers, nor any of the plaintiff's attempts to somehow distinguish the case of Hodgson vs. (4th Isolatek International Corp., 300 A.D.2d 1051 Dept., 2002), provide any legal Page 2 of 3 2 of 3 FILED: ERIE COUNTY CLERK 03/23/2021 03:39 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 03/23/2021 support for the plaintiff's opposition to either Stromecki's Motion for Summary Judgment, Concept's Motion for Summary Judgment or the Motions to Dismiss/Summary Judgment by Guard and Arric. WHEREFORE, your deponent requests an Order dismissing the plaintiff's Complaint against Arric and all cross-claims against Arric by co-defendants Guard, Concept and Stromecki, on the merits and with prejudice, together with such other, further and different relief as this Court deems just, proper and equitable, and costs and disbursements of this motion. MARK P. DELLA POSTA Sworn to fore me this 23rd day arch, 2021. JacqtÃélin M. ayden Public - State of New York Notary Qualified in Erie County License #01HA4994529 My Commission Expires: 04/06/22 Page 3 of 3 3 of 3