Preview
FILED: KINGS COUNTY CLERK 01/23/2019 03:10 PM INDEX NO. 507880/2016
NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 01/23/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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BENJAMIN GODWARD, Index No.: 507880/2016
Plaintiff,
AFFIRMATION IN
OPPOSITION
- against -
H.L.P. REALTY CORP.,
Defendants.
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H.L.P. REALTY CORP.,
Third-Party Plaintiff,
- against –
PRECISION ELEVATOR CORP.,
Third-Party Defendants.
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JASON S. MATUSKIEWICZ, Esq. an attorney admitted to practice law in the State
of New York, affirms as follows under penalties of perjury:
1. I am of counsel to the law firm of Gordon & Gordon, P.C., the attorneys for
the third-party plaintiff, GREEN PEAK GROUP C4, INC. (“GREEN PEAK”), and I am
fully familiar with all of the facts relating to this case. I submit this affirmation in
opposition to the defendant’s motion for a protective order.
2. This matter arises from an accident that occurred in the elevator shaft at 238
Melrose Street, Brooklyn, New York on April 12, 2015. The accident happened when the
plaintiff demonstrated the use of the freight elevator located on the premises. Using a
rudimentary device commonly known as a drop key, the plaintiff opened the door, and as
he showed how to pull the door backward while holding down the latch, he lost his footing
and fell to the bottom of the elevator shaft, because there was no elevator car on the first
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FILED: KINGS COUNTY CLERK 01/23/2019 03:10 PM INDEX NO. 507880/2016
NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 01/23/2019
floor at that time. At the time of the accident, the Code of the City of New York required a
lock on elevators of the sort located at 238 Melrose Street. The Code additionally required
that elevators of the sort located at 238 Melorse Street have a designated freight elevator
operator with sufficient training to use the elevator safely. The defendant simply allowed
their tenants to use the freight elevator regardless of training and had no parking device on
the elevator, no warning that there was no parking device, etc, and took practically no steps
to ensure the safety of the elevator. See Generally Def. Ex. D &E; Ex. 1: Elevator Expert
Report.
3. There should be no dispute at to the matters contained in the notice to admit.
If they can only be answered with qualifications, they should be answered as such. If they
have been admitted elsewhere, in depositions and such, that has no bearing on the
defendant’s need to answer the notice to admit.
At any time after service of the answer or after the expiration of twenty days
from service of the summons, whichever is sooner, and not later than twenty
days before the trial, a party may serve upon any other party a written
request for admission by the latter of the genuineness of any papers or
documents, or the correctness or fairness of representation of any
photographs, described in and served with the request, or of the truth of any
matters of fact set forth in the request, as to which the party requesting the
admission reasonably believes there can be no substantial dispute at the trial
and which are within the knowledge of such other party or can be
ascertained by him upon reasonable inquiry. Copies of the papers,
documents or photographs shall be served with the request unless copies
have already been furnished. Each of the matters of which an admission is
requested shall be deemed admitted unless within twenty days after service
thereof or within such further time as the court may allow, the party to
whom the request is directed serves upon the party requesting the admission
a sworn statement either denying specifically the matters of which an
admission is requested or setting forth in detail the reasons why he cannot
truthfully either admit or deny those matters. If the matters of which an
admission is requested cannot be fairly admitted without some material
qualification or explanation, or if the matters constitute a trade secret or
such party would be privileged or disqualified from testifying as a witness
concerning them, such party may, in lieu of a denial or statement, serve a
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FILED: KINGS COUNTY CLERK 01/23/2019 03:10 PM INDEX NO. 507880/2016
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sworn statement setting forth in detail his claim and, if the claim is that the
matters cannot be fairly admitted without some material qualification or
explanation, admitting the matters with such qualification or explanation.
N.Y. C.P.L.R. § 3123
WHEREFORE, the plaintiff requests the defendant’s motion be denied in
its entirety.
Dated: January 23, 2019
Brooklyn, New York
GORDON & GORDON, P.C.
By: /s/ Jason S. Matuskiewicz
Jason S. Matuskiewicz, Esq.
Peter S. Gordon, Esq.
108-18 Queens Boulevard, Suite 606
Forest Hills, New York 11375
T: (718) 544-7070
F: (718) 544-0994
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FILED: KINGS COUNTY CLERK 01/23/2019 03:10 PM INDEX NO. 507880/2016
NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 01/23/2019
Index No.: 507880/2016
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
BENJAMIN GODWARD,
Plaintiff,
- against -
H.L.P. REALTY CORP.,
Defendants.
AFFIRMATION IN OPPOSITION
GORDON & GORDON, PC
Attorneys for Plaintiff
108-18 Queens Boulevard, Suite 606
Forest Hills, New York 11375
(718)-544-7070
Pursuant to 22 To: NYCRR 130-1.1, the undersigned, an attorney admitted to practice in
the courts of New York State, certifies that, upon information and belief and reasonable
inquiry, the contentions contained in the annexed document are not frivolous.
Dated: Forest Hills, New York
January 23, 2019
/s/ Jason S. Matuskiewicz
Signature
JASON S. MATUSKIEWICZ, ESQ.
PETER S. GORDON, ESQ.
Print Signer’s Name
Service of copy of the within is hereby admitted.
Attorney(s) for
Dated:
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Preview
FILED: KINGS COUNTY CLERK 01/23/2019 03:10 PM INDEX NO. 507880/2016 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 01/23/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------X BENJAMIN GODWARD, Index No.: 507880/2016 Plaintiff, AFFIRMATION IN OPPOSITION - against - H.L.P. REALTY CORP., Defendants. --------------------------------------------------------------------X H.L.P. REALTY CORP., Third-Party Plaintiff, - against – PRECISION ELEVATOR CORP., Third-Party Defendants. --------------------------------------------------------------------X JASON S. MATUSKIEWICZ, Esq. an attorney admitted to practice law in the State of New York, affirms as follows under penalties of perjury: 1. I am of counsel to the law firm of Gordon & Gordon, P.C., the attorneys for the third-party plaintiff, GREEN PEAK GROUP C4, INC. (“GREEN PEAK”), and I am fully familiar with all of the facts relating to this case. I submit this affirmation in opposition to the defendant’s motion for a protective order. 2. This matter arises from an accident that occurred in the elevator shaft at 238 Melrose Street, Brooklyn, New York on April 12, 2015. The accident happened when the plaintiff demonstrated the use of the freight elevator located on the premises. Using a rudimentary device commonly known as a drop key, the plaintiff opened the door, and as he showed how to pull the door backward while holding down the latch, he lost his footing and fell to the bottom of the elevator shaft, because there was no elevator car on the first 1 of 4 FILED: KINGS COUNTY CLERK 01/23/2019 03:10 PM INDEX NO. 507880/2016 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 01/23/2019 floor at that time. At the time of the accident, the Code of the City of New York required a lock on elevators of the sort located at 238 Melrose Street. The Code additionally required that elevators of the sort located at 238 Melorse Street have a designated freight elevator operator with sufficient training to use the elevator safely. The defendant simply allowed their tenants to use the freight elevator regardless of training and had no parking device on the elevator, no warning that there was no parking device, etc, and took practically no steps to ensure the safety of the elevator. See Generally Def. Ex. D &E; Ex. 1: Elevator Expert Report. 3. There should be no dispute at to the matters contained in the notice to admit. If they can only be answered with qualifications, they should be answered as such. If they have been admitted elsewhere, in depositions and such, that has no bearing on the defendant’s need to answer the notice to admit. At any time after service of the answer or after the expiration of twenty days from service of the summons, whichever is sooner, and not later than twenty days before the trial, a party may serve upon any other party a written request for admission by the latter of the genuineness of any papers or documents, or the correctness or fairness of representation of any photographs, described in and served with the request, or of the truth of any matters of fact set forth in the request, as to which the party requesting the admission reasonably believes there can be no substantial dispute at the trial and which are within the knowledge of such other party or can be ascertained by him upon reasonable inquiry. Copies of the papers, documents or photographs shall be served with the request unless copies have already been furnished. Each of the matters of which an admission is requested shall be deemed admitted unless within twenty days after service thereof or within such further time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters. If the matters of which an admission is requested cannot be fairly admitted without some material qualification or explanation, or if the matters constitute a trade secret or such party would be privileged or disqualified from testifying as a witness concerning them, such party may, in lieu of a denial or statement, serve a 2 of 4 FILED: KINGS COUNTY CLERK 01/23/2019 03:10 PM INDEX NO. 507880/2016 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 01/23/2019 sworn statement setting forth in detail his claim and, if the claim is that the matters cannot be fairly admitted without some material qualification or explanation, admitting the matters with such qualification or explanation. N.Y. C.P.L.R. § 3123 WHEREFORE, the plaintiff requests the defendant’s motion be denied in its entirety. Dated: January 23, 2019 Brooklyn, New York GORDON & GORDON, P.C. By: /s/ Jason S. Matuskiewicz Jason S. Matuskiewicz, Esq. Peter S. Gordon, Esq. 108-18 Queens Boulevard, Suite 606 Forest Hills, New York 11375 T: (718) 544-7070 F: (718) 544-0994 3 of 4 FILED: KINGS COUNTY CLERK 01/23/2019 03:10 PM INDEX NO. 507880/2016 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 01/23/2019 Index No.: 507880/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS BENJAMIN GODWARD, Plaintiff, - against - H.L.P. REALTY CORP., Defendants. AFFIRMATION IN OPPOSITION GORDON & GORDON, PC Attorneys for Plaintiff 108-18 Queens Boulevard, Suite 606 Forest Hills, New York 11375 (718)-544-7070 Pursuant to 22 To: NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of New York State, certifies that, upon information and belief and reasonable inquiry, the contentions contained in the annexed document are not frivolous. Dated: Forest Hills, New York January 23, 2019 /s/ Jason S. Matuskiewicz Signature JASON S. MATUSKIEWICZ, ESQ. PETER S. GORDON, ESQ. Print Signer’s Name Service of copy of the within is hereby admitted. Attorney(s) for Dated: 4 of 4