Preview
FILED: DUTCHESS COUNTY CLERK 12/14/2023 05:04 PM INDEX NO. 2015-52210
NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 12/14/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
-----------------------------------------------X Index No: 2015-52210
KENNETH GAROFOLO and JENNIFER GAROFOLO,
Plaintiff,
-against. REPLY
AFFIRMATION
DEVIN J. CARPENTER, PREFERRED GROUP OF
MANHATTAH, INC. CONSOLIDATED RAIL
CORPORATION and CSX TRANSPORTATION, INC.,
Defendants.
____________---______________________Ç
DEVIN J. CARPENTER,
Third-Party Plaintiff,
-against-
THE LAST TRAIN STOP, INC., THE LAST TRAIN STOP,
INC. d/b/a MAHONEY'S IRISH PUB & STEAKHOUSE,
P.OX TRAIN STATION, LLC, P.O.K. TRAIN STATION,
LLC d/b/a MAHONEY'S IRISH PUB & STEAKHOUSE and
MAHONEY'S IRISH PUB & STEAKHOUSE,
Third-Party Defendants.
_______________..---------....--_____________Ç
HOWARD B. ALTMAN, an attorney duly licensed and admitted to practice law in and
before the Courts of the State of New York, hereby affirms the truth of the following under the
penalties of perjury:
1. I ain associated with the law firm, CASCONE & KLUEPFEL, LLP, attorneys for
Third-Party Deferidant THE LAST TRAIN STOP, INC., i/s/h/a THE LAST TRAIN STOP,
INC., THE LAST TRAIN STOP, INC. d/b/a MAHONEY'S IRISH PUB & STEAKHOUSE and
MAHONEY'S IRISH PUB & STEAKHOUSE, ("Mahoney's") in the above-captioned matter.
As such, I am fully familiar with facts and circumstances of this action.
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2. I respectfully submit this Affirmation in reply to the Affirmation in Opposition of
Plaintiff s counsel, Andrew Humphreys ("Humphreys Aff."), and in further support of
Mahoney's motion for an Order: (1) pursuant to CPLR §3212 (a) granting Mahoney's summary
judgment dismissing the Third-Party Complaint against it; and (2) pursuant to CPLR §
321 l(a)(5), dismissing Plaintiff s Complaint against Defendant/Third-Party Plaintiff, DEVIN J.
CARPENTER ("Mr. Carpenter").
3. Initially, we note that Mr. Carpenter did not oppose the portion of Mahoney's
motion that sought to dismiss the Complaint, and Plaintiff limits his opposition to
Third-Party
the portion of Mahoney's motion that seeks to dismiss his Complaint. As such, the portion of
Mahoney's motion that sought to dismiss the Third-Party Complaint should be granted as
unopposed. Zhohtnji v. 52 Wooster Holdings, LLC, 188 A.D.3d 1300, 132 N.Y.S.3d 787, 788
(2d Dept. 2020)( the Supreme Court should have granted the unopposed branch of the
defendants' the Labor Law cause
motion which was for summary judgment dismissing § 241(6)
of action, as the phintiff did not oppose that portion ofthe motion).
Statement of Facts
4. To avoid undue repetition, we respectfully incorporate the facts set forth in
Mahoney's Rule Statement of Facts dated September 7, 2023, and the exhibits attached
202.8-g
to the moving Aff.rmation of Howard B. Altman, swom to September 7, 2023.
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Argument
Mahoney's is Entitled to Dismissal of the Third-Party Complaint
A. Plaintiff Did not Sustain a Grave Injury
5. Plaintiff did not oppose the portion of Mahoney's motion that sought to dismiss
Defendant Carpenter's Third-Party Complaint, and does not have standing to oppose dismissal
even had he done so, Plaintiff did not assert any claims against Mahoney's Thus, whether he
injury"
did or did not sustain a "grave is immaterial as to Mahoney's motion.
6. Thet said, Plaintiff retumed to work (Altman Ex F, p 10) and can drive. (id, p.
14).
disability"
7. The Court of Appeals defined "pemianent total as "unemployability in
capacity." 803 N.Y.S.2d 202
Chel li v. Banle Assocs.. LLC, 22 A.D.3d 781, 782--83, 201,
any
(2005). A person who can work is deemed to have no traumatic brain injury as a matter of law.
This moots the al eged belief of Plaintiff's experts of any cognitive defect and precludes any
claim of a traumatic brain injury.
(15
8. In Alulema v. ZEV Elec. Corp., 168 A.D.3d 469, 470, 90 N.Y.S.3d 171, 172
Workers'
Dept the Court ruled that under Compensation Law § 11, "an acquired injury to
2019),
disability,"
the brain caused an external physical force in permanent total means the
by resulting
capacity." noted that despite the
injured worker is no longer employable "in any The Court
plaintiff's claim o• cognitive and emotional symptoms he was looking for jobs, he had obtained
his GED, and he w as able to drive his vehicle.
9. Hew, Plaintiff retumed to work and ean drive. As such, any alleged brain injury
injury"
does not constitute a "grave as defined in the statute.
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10. The case cited by plaintiff Rubeis v. Aqua Club Inc. states at the end of the
opinion: "Finally, we make clear that the test we adopt for permanent total disability under
capacity'
section 11 is one of unemployability in any capacity. 'In any is in keeping with
legislative intent and sets a more objectively ascertainable test than equivalent, or competitive,
employment."
B. Mr. Carpenter is Not Entitled to Indemnification
11. Plaintiff claims that Mr. Carpenter may be entitled to indemnity if Mahoney's
served Plaintiff abohol when he was visibly intoxicated. Plaintiffs claim fails for numerous
reasons.
12. the Complaint contains no Dram Shop cause of action or any
First, Third-Party
allegation that Mahoney's served Mr. Carpenter alcohol when he was visibly intoxicated. The
Complaint pleads common-law indemnification and contribution and asserts
Third-Party only
that Mahoney's is liable for Plaintiff's conduct.
only
13. Mr. Carpenter did not oppose Mahoney's motion. Thus, Mahoney's
Seebnd,
motion to dismiss the claims for common-law indemnification and contribution must be granted
as unopposed.
14. In Camisa v. Rosen, 150 A.D.3d 809, 54 N.Y.S.3d 11 I (2d Dept. 2017). the
Second Departmeñt ruled that the branch of an employer's motion for summary judgment that
sought to dismiss the Town's cross claim alleging common-law indemnification should have
been granted, as the Town did not oppose that branch of the motion.
15. In Carley v. Country Squire Apartments. Inc.. 32 A.D.3d 978, 978, 820 N.Y.S.2d
900 (2d Dep. 200 , the Second Department ruled that the Supreme Court erred in denying the
branch of the defendant's motion for summary judgment dismissing codefendant Country Squire
4 of 9
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NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 12/14/2023
Apartments'
claim for contractual and common-law indemnification since Country Squire did
!
not oppose that branch of the motion. See. Kalinka v. Saint Francis Hosp., 34 A.D.3d 742, 827
N.Y.S.2d 75 (2d Dept. 2006) (Dismissal of cross-claims for common-law indemnification and
contribution was sarranted where the motion for summary judgment on the cross-claims was
unopposed.)
16. ThÈrd, as set forth above, Plaintiff did not allege any loss of limb, blindness or any
injury." injury"
other enumerated "grave His alleged brain injury does not qualify as a "grave
because he returned to work. As such, the Third-Party Complaint must be dismissed. Fleming v.
10 N.Yjd 296, 886 N.E.2d 769 (2008) (Where worker did not sustain a grave injury as
Graham,
Workers' liable for common law
enumerated in the Compensation Law, employer could not be
indemnification). S_ee Lombardo v. Tag Court Square, LLC. 126 A.D.3d 949, 7 N.Y.S.3d 187
injury" Workers'
(2d Dept. (Worker did not sustain "grave under Compensation Law, and
2015)
site owner ar.d construction managers were not entitled to common-law indemnification or
thus,
contribution from worker's employer for injuries sustained in slip and fall accident at worksite.)
it is respectfully requested that the Court grant the instant motion in all
WHEREFORE,
witil such other and further relief as the Couret may deem just and proper.
respects, along
Dated: Fanningdate, New York
December 14, 2023
QtacMr
Howard B. Altman
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NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 12/14/2023
PRINTING SPECIFICATIONS STATEMENT
I hereby certify that the total number of words in the annexed document, inclusive of
point headings and footnotes and exclusive of any pages (if applicable) containing the table of
contents, table of authorities, proofs of service is 1,070
Dated: Farmingdale, New York
December 14, 2023
loward B. Altman
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NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 12/14/2023
AFFIDAVIT OF SERVICE
STATE OF NEW YORK )
COUNTY OF NASSAU )ss.:
say: I am not a party to the am over 18 years
I, KUILAM L. SANCHEZ, being duly sworn, action,
of age and reside at Nassau County, New York:
.
On December 2023, I served the within REPLY AFFIRMATION
the New York State E-
[X] Service by by imnsmitting the papers by clectmnic moons through the New York State E-Fi(c System. 1 received an e-mail from
Electronic File System indicating that the transmission was received and delivered to all counsel in this action.
Means
name due to COVl()-19.
| } Service by by transmining the papers by electronic means through email addressedto the attomcy set forth añct each
Electronic
Means
in an oflicial deriository under the exclusive care and official depository under the
[ | Service by by depositing a Int.e copy thereof in a post-paid wrapper,
Mail exclusive care and custody of the (J.S. Postal Service within the New York State, addressed to each of the following persons at the last
known address set forth after each name:
below at the address indicated. ( knew each person served to be the person
| | Personal by delivering a true copy thereof personally to each person named
Served ort mentioned and described in said papers us a pany therein:
i ndividual
shown below. into the custody of UNfTED PA RCEL SEltVICE for
1 [ Overnight by depositing a true copy thereof, enclosed in a wrapper addressed as
ovemight delivery. prior to the latest time designated by that service for ovemight delivery.
TO:
JONNA SPILBOR, 15LLC
Attorneys for Plaintiff
12th
214 Main Street, noor
Pouglkeepsie, New York 12601
(845) 485-2529
MAINETTI & MAINETTI, PC.
Attorneysfor Defendant/Third-Party Plaintsff
DEVIN J. CARPENTER
130North Front Street3 Suite 300
Kingston, New York 12402
(845) 600-0000
LANDMAN, CORSI, BALLAINE & FORD, PC
Attorneys for Defendants
CONSOLIDATED RAIL CORPORATION and
CSX TRANSPORTATION, INC.
27*
120 Broadway, Floor
New York, New York 10271
(212) 238-4800
7 of 9
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NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 12/14/2023
L SANCHEZ
Swo .to before me this
'day of December, 2023
MARY L COOKE
New York
Public. State of
Notary No.o3cos24994o
,
[.
Oualified in Nassau County
·q ) CD Expires October 17, 20
Commission
Notary Pub i
8 of 9
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NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 12/14/2023
INDEX NO.: 52210/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
KENNETH GAROFOLO and JENNIFER
GAROFOLO,
Plaintff,
- against -
DEVIN J.
CARPENTER, PREFERRED GROUP OF
MANHATTAN, INC.,CONSOLIDATED RAIL
CORPORATION and CSX TRANSPORTATION,
INC.,
Defendants.
And Third-Party Action
REPLY AFFIRMATION
CASCONE & KLUEPFEL, LLP.
Attorneys for Third -Party Defendant THE LAST TRAIN
STOP, INC. i/s/h/u THE LAST TRAIN STOP, INC. d/b/a
MAHONEY'S IRISH PUB & STEAKHOUSE, P.O.K.
TRAIN STATION, LLC, P.O.K. TRAIN STATION, LLC
d/b/a MAHONEY'S IRISH PUB & STEAKHOUSE and
MAHONEY'S IRISH PUB &STEAKHOUSE
Office and Post Office Address, Telephone
497 Main Street
Farmingdale, New York 11735
(516) 747-1990
(516) 747-1992 Facsimile
To: ALL COUNSEL
Service of a copy of the within
is hereby admitted,
Dated,
Attorney(s) for Third-Party Defendant
9 of 9
Preview
FILED: DUTCHESS COUNTY CLERK 12/14/2023 05:04 PM INDEX NO. 2015-52210 NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 12/14/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DUTCHESS -----------------------------------------------X Index No: 2015-52210 KENNETH GAROFOLO and JENNIFER GAROFOLO, Plaintiff, -against. REPLY AFFIRMATION DEVIN J. CARPENTER, PREFERRED GROUP OF MANHATTAH, INC. CONSOLIDATED RAIL CORPORATION and CSX TRANSPORTATION, INC., Defendants. ____________---______________________Ç DEVIN J. CARPENTER, Third-Party Plaintiff, -against- THE LAST TRAIN STOP, INC., THE LAST TRAIN STOP, INC. d/b/a MAHONEY'S IRISH PUB & STEAKHOUSE, P.OX TRAIN STATION, LLC, P.O.K. TRAIN STATION, LLC d/b/a MAHONEY'S IRISH PUB & STEAKHOUSE and MAHONEY'S IRISH PUB & STEAKHOUSE, Third-Party Defendants. _______________..---------....--_____________Ç HOWARD B. ALTMAN, an attorney duly licensed and admitted to practice law in and before the Courts of the State of New York, hereby affirms the truth of the following under the penalties of perjury: 1. I ain associated with the law firm, CASCONE & KLUEPFEL, LLP, attorneys for Third-Party Deferidant THE LAST TRAIN STOP, INC., i/s/h/a THE LAST TRAIN STOP, INC., THE LAST TRAIN STOP, INC. d/b/a MAHONEY'S IRISH PUB & STEAKHOUSE and MAHONEY'S IRISH PUB & STEAKHOUSE, ("Mahoney's") in the above-captioned matter. As such, I am fully familiar with facts and circumstances of this action. 1 of 9 FILED: DUTCHESS COUNTY CLERK 12/14/2023 05:04 PM INDEX NO. 2015-52210 NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 12/14/2023 2. I respectfully submit this Affirmation in reply to the Affirmation in Opposition of Plaintiff s counsel, Andrew Humphreys ("Humphreys Aff."), and in further support of Mahoney's motion for an Order: (1) pursuant to CPLR §3212 (a) granting Mahoney's summary judgment dismissing the Third-Party Complaint against it; and (2) pursuant to CPLR § 321 l(a)(5), dismissing Plaintiff s Complaint against Defendant/Third-Party Plaintiff, DEVIN J. CARPENTER ("Mr. Carpenter"). 3. Initially, we note that Mr. Carpenter did not oppose the portion of Mahoney's motion that sought to dismiss the Complaint, and Plaintiff limits his opposition to Third-Party the portion of Mahoney's motion that seeks to dismiss his Complaint. As such, the portion of Mahoney's motion that sought to dismiss the Third-Party Complaint should be granted as unopposed. Zhohtnji v. 52 Wooster Holdings, LLC, 188 A.D.3d 1300, 132 N.Y.S.3d 787, 788 (2d Dept. 2020)( the Supreme Court should have granted the unopposed branch of the defendants' the Labor Law cause motion which was for summary judgment dismissing § 241(6) of action, as the phintiff did not oppose that portion ofthe motion). Statement of Facts 4. To avoid undue repetition, we respectfully incorporate the facts set forth in Mahoney's Rule Statement of Facts dated September 7, 2023, and the exhibits attached 202.8-g to the moving Aff.rmation of Howard B. Altman, swom to September 7, 2023. 2 of 9 FILED: DUTCHESS COUNTY CLERK 12/14/2023 05:04 PM INDEX NO. 2015-52210 NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 12/14/2023 Argument Mahoney's is Entitled to Dismissal of the Third-Party Complaint A. Plaintiff Did not Sustain a Grave Injury 5. Plaintiff did not oppose the portion of Mahoney's motion that sought to dismiss Defendant Carpenter's Third-Party Complaint, and does not have standing to oppose dismissal even had he done so, Plaintiff did not assert any claims against Mahoney's Thus, whether he injury" did or did not sustain a "grave is immaterial as to Mahoney's motion. 6. Thet said, Plaintiff retumed to work (Altman Ex F, p 10) and can drive. (id, p. 14). disability" 7. The Court of Appeals defined "pemianent total as "unemployability in capacity." 803 N.Y.S.2d 202 Chel li v. Banle Assocs.. LLC, 22 A.D.3d 781, 782--83, 201, any (2005). A person who can work is deemed to have no traumatic brain injury as a matter of law. This moots the al eged belief of Plaintiff's experts of any cognitive defect and precludes any claim of a traumatic brain injury. (15 8. In Alulema v. ZEV Elec. Corp., 168 A.D.3d 469, 470, 90 N.Y.S.3d 171, 172 Workers' Dept the Court ruled that under Compensation Law § 11, "an acquired injury to 2019), disability," the brain caused an external physical force in permanent total means the by resulting capacity." noted that despite the injured worker is no longer employable "in any The Court plaintiff's claim o• cognitive and emotional symptoms he was looking for jobs, he had obtained his GED, and he w as able to drive his vehicle. 9. Hew, Plaintiff retumed to work and ean drive. As such, any alleged brain injury injury" does not constitute a "grave as defined in the statute. 3 of 9 FILED: DUTCHESS COUNTY CLERK 12/14/2023 05:04 PM INDEX NO. 2015-52210 NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 12/14/2023 10. The case cited by plaintiff Rubeis v. Aqua Club Inc. states at the end of the opinion: "Finally, we make clear that the test we adopt for permanent total disability under capacity' section 11 is one of unemployability in any capacity. 'In any is in keeping with legislative intent and sets a more objectively ascertainable test than equivalent, or competitive, employment." B. Mr. Carpenter is Not Entitled to Indemnification 11. Plaintiff claims that Mr. Carpenter may be entitled to indemnity if Mahoney's served Plaintiff abohol when he was visibly intoxicated. Plaintiffs claim fails for numerous reasons. 12. the Complaint contains no Dram Shop cause of action or any First, Third-Party allegation that Mahoney's served Mr. Carpenter alcohol when he was visibly intoxicated. The Complaint pleads common-law indemnification and contribution and asserts Third-Party only that Mahoney's is liable for Plaintiff's conduct. only 13. Mr. Carpenter did not oppose Mahoney's motion. Thus, Mahoney's Seebnd, motion to dismiss the claims for common-law indemnification and contribution must be granted as unopposed. 14. In Camisa v. Rosen, 150 A.D.3d 809, 54 N.Y.S.3d 11 I (2d Dept. 2017). the Second Departmeñt ruled that the branch of an employer's motion for summary judgment that sought to dismiss the Town's cross claim alleging common-law indemnification should have been granted, as the Town did not oppose that branch of the motion. 15. In Carley v. Country Squire Apartments. Inc.. 32 A.D.3d 978, 978, 820 N.Y.S.2d 900 (2d Dep. 200 , the Second Department ruled that the Supreme Court erred in denying the branch of the defendant's motion for summary judgment dismissing codefendant Country Squire 4 of 9 FILED: DUTCHESS COUNTY CLERK 12/14/2023 05:04 PM INDEX NO. 2015-52210 NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 12/14/2023 Apartments' claim for contractual and common-law indemnification since Country Squire did ! not oppose that branch of the motion. See. Kalinka v. Saint Francis Hosp., 34 A.D.3d 742, 827 N.Y.S.2d 75 (2d Dept. 2006) (Dismissal of cross-claims for common-law indemnification and contribution was sarranted where the motion for summary judgment on the cross-claims was unopposed.) 16. ThÈrd, as set forth above, Plaintiff did not allege any loss of limb, blindness or any injury." injury" other enumerated "grave His alleged brain injury does not qualify as a "grave because he returned to work. As such, the Third-Party Complaint must be dismissed. Fleming v. 10 N.Yjd 296, 886 N.E.2d 769 (2008) (Where worker did not sustain a grave injury as Graham, Workers' liable for common law enumerated in the Compensation Law, employer could not be indemnification). S_ee Lombardo v. Tag Court Square, LLC. 126 A.D.3d 949, 7 N.Y.S.3d 187 injury" Workers' (2d Dept. (Worker did not sustain "grave under Compensation Law, and 2015) site owner ar.d construction managers were not entitled to common-law indemnification or thus, contribution from worker's employer for injuries sustained in slip and fall accident at worksite.) it is respectfully requested that the Court grant the instant motion in all WHEREFORE, witil such other and further relief as the Couret may deem just and proper. respects, along Dated: Fanningdate, New York December 14, 2023 QtacMr Howard B. Altman 5 of 9 FILED: DUTCHESS COUNTY CLERK 12/14/2023 05:04 PM INDEX NO. 2015-52210 NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 12/14/2023 PRINTING SPECIFICATIONS STATEMENT I hereby certify that the total number of words in the annexed document, inclusive of point headings and footnotes and exclusive of any pages (if applicable) containing the table of contents, table of authorities, proofs of service is 1,070 Dated: Farmingdale, New York December 14, 2023 loward B. Altman 6 of 9 FILED: DUTCHESS COUNTY CLERK 12/14/2023 05:04 PM INDEX NO. 2015-52210 NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 12/14/2023 AFFIDAVIT OF SERVICE STATE OF NEW YORK ) COUNTY OF NASSAU )ss.: say: I am not a party to the am over 18 years I, KUILAM L. SANCHEZ, being duly sworn, action, of age and reside at Nassau County, New York: . On December 2023, I served the within REPLY AFFIRMATION the New York State E- [X] Service by by imnsmitting the papers by clectmnic moons through the New York State E-Fi(c System. 1 received an e-mail from Electronic File System indicating that the transmission was received and delivered to all counsel in this action. Means name due to COVl()-19. | } Service by by transmining the papers by electronic means through email addressedto the attomcy set forth añct each Electronic Means in an oflicial deriository under the exclusive care and official depository under the [ | Service by by depositing a Int.e copy thereof in a post-paid wrapper, Mail exclusive care and custody of the (J.S. Postal Service within the New York State, addressed to each of the following persons at the last known address set forth after each name: below at the address indicated. ( knew each person served to be the person | | Personal by delivering a true copy thereof personally to each person named Served ort mentioned and described in said papers us a pany therein: i ndividual shown below. into the custody of UNfTED PA RCEL SEltVICE for 1 [ Overnight by depositing a true copy thereof, enclosed in a wrapper addressed as ovemight delivery. prior to the latest time designated by that service for ovemight delivery. TO: JONNA SPILBOR, 15LLC Attorneys for Plaintiff 12th 214 Main Street, noor Pouglkeepsie, New York 12601 (845) 485-2529 MAINETTI & MAINETTI, PC. Attorneysfor Defendant/Third-Party Plaintsff DEVIN J. CARPENTER 130North Front Street3 Suite 300 Kingston, New York 12402 (845) 600-0000 LANDMAN, CORSI, BALLAINE & FORD, PC Attorneys for Defendants CONSOLIDATED RAIL CORPORATION and CSX TRANSPORTATION, INC. 27* 120 Broadway, Floor New York, New York 10271 (212) 238-4800 7 of 9 FILED: DUTCHESS COUNTY CLERK 12/14/2023 05:04 PM INDEX NO. 2015-52210 NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 12/14/2023 L SANCHEZ Swo .to before me this 'day of December, 2023 MARY L COOKE New York Public. State of Notary No.o3cos24994o , [. Oualified in Nassau County ·q ) CD Expires October 17, 20 Commission Notary Pub i 8 of 9 FILED: DUTCHESS COUNTY CLERK 12/14/2023 05:04 PM INDEX NO. 2015-52210 NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 12/14/2023 INDEX NO.: 52210/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DUTCHESS KENNETH GAROFOLO and JENNIFER GAROFOLO, Plaintff, - against - DEVIN J. CARPENTER, PREFERRED GROUP OF MANHATTAN, INC.,CONSOLIDATED RAIL CORPORATION and CSX TRANSPORTATION, INC., Defendants. And Third-Party Action REPLY AFFIRMATION CASCONE & KLUEPFEL, LLP. Attorneys for Third -Party Defendant THE LAST TRAIN STOP, INC. i/s/h/u THE LAST TRAIN STOP, INC. d/b/a MAHONEY'S IRISH PUB & STEAKHOUSE, P.O.K. TRAIN STATION, LLC, P.O.K. TRAIN STATION, LLC d/b/a MAHONEY'S IRISH PUB & STEAKHOUSE and MAHONEY'S IRISH PUB &STEAKHOUSE Office and Post Office Address, Telephone 497 Main Street Farmingdale, New York 11735 (516) 747-1990 (516) 747-1992 Facsimile To: ALL COUNSEL Service of a copy of the within is hereby admitted, Dated, Attorney(s) for Third-Party Defendant 9 of 9