Preview
FILED: DUTCHESS COUNTY CLERK 02/12/2024 11:28 AM INDEX NO. 2021-55036
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/12/2024
STATE OF NEW YORK
SUPREME COURT COUNTY OF DUTCHESS
______________________________________________________________________________
NANCY LAURICELLA,
NOTICE OF ENTRY
Plaintiff, Index No.: 2021-55036
-against-
D’ARCANGELO & CO., LLP,
and MICHAEL C. BETROS, CPA, PFS,
and ARLINGTON PROFESSIONAL SUITES, LLC,
Defendants.
______________________________________________________________________________
PLEASE TAKE NOTICE that the within is a true and complete copy of the Amended
Decision and Order executed by the Honorable Thomas R. Davis, J.S.C., on February 7, 2024, and
duly entered in the Dutchess County Clerk’s Office on February 9, 2024.
Dated: February 12, 2024
MAYNARD, O'CONNOR, SMITH
& CATALINOTTO, LLP
/s/ Bridget M. Schultz
___________________________________
Bridget M. Schultz
Attorneys for Defendants
6 Tower Place
Albany, New York 12203
(518) 465-3553
TO: Pamela Gabiger, Esq.
P.O. Box 2952
Poughkeepsie, New York 12603
{M1182645.1}
1 of 4
FILED: DUTCHESS COUNTY CLERK 02/12/2024
02/09/2024 11:28
04:04 AM
PM INDEX NO. 2021-55036
NYSCEF DOC. NO. 44
39 RECEIVED NYSCEF: 02/12/2024
02/07/2024
SUPREME COURT- STATE OF NEW YORK
DUTCHESS COUNTY
Present: Hon. THOMAS R. DAVIS. J.S.C.
SUPREME COURT: DUTCHESS COUNTY
x
NANCY I,AURICELLA.
AMENDED
Plaintif(s). DECISION AND ORDER
(Motion Seq. #1)
-against-
lndex No.: 2021-55036
D'ARCANGELO & CO., LLP,
AND MICHAEL C. BETROS. CPA. PFS, AND
ARLINGTON PROFESSIONAL SUITES, LLC.
Defbndant(s)
x
In this personal injury action arising from a slip and fall on ice, the Defendants
D'ARCANGELO & CO., LLP. ("D'Arcangelo") and MICHAEL C. BETROS, CPA, PFS.
The Defendants motion is suppofled by an affidavit lrom Delendant Betros who identifies
himself as a member of the LLC which owns the property. Arlington, and a commercial tenant at
the property. D'Arcangelo. Betros was present on the date ofthe Plaintilf s fall.
Betros' affidavit, based on personal knowledge, avers that none of the def'endants had
notice of the icy patch on which the Plaintiff allegedly fell. Also attached to the Def'endant's
moving papers is the Plaintifls deposition transcript. While the transcript is unsigned, the fact that
it is presented by the Del'endant allows the Court to consider same, as it is unchallenged by the
Plaintiff. "The Supreme Court properly considered Green's unsigned deposition transcript since it
was certified by the reporter and the plaintiff did not challenge the accuracy of the transcript (sea
,lung Geun Lee v. Mason, I 3 9 A.D.3d 807, 808, 33 N.Y.S.3d 7 6; Gezelter v. Pecora, 129 A.D.3d
1021.1022, l3 N.Y.S.3d l4l)." Ciruldo v County of lVastchester. 147 AD3d 813. 814 [2d Dept
20171. In that transcript, the Plaintiffrepeatedly refers to her fall having taken place on "black ice."
She olfers no factual support tbr any notice to any ofthe Defendants ofan icy condition.
"The injured plaintiff alleged that he slipped and fbll on a patch of ''black
ice" in the defendants' driveway. A property owner will be held liable for a
slip-and-fall accident involving snow and ice on its property only when it
created the dangerous condition which caused the accident or had actual or
constructive notice thereof (see Fahey v. Serola, 23 A.D.3d 335, 806
Page I of3
1 of 4
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FILED: DUTCHESS COUNTY CLERK 02/12/2024
02/09/2024 11:28
04:04 AM
PM INDEX NO. 2021-55036
NYSCEF DOC. NO. 44
39 RECEIVED NYSCEF: 02/12/2024
02/07/2024
N.Y.S.2d 70;Zabbiov. lYestwood, ZZC, l8 A.D.3d 542,795 N.Y.S.2d 319;
Cody v. Dilorenzo, 304 A.D.2d 705, 757 N.Y.S.2d 789; Voss v. D & C
Parking, 299 A.D.2d 346, 749 N.Y.S.2d 76; see also Simmons v.
Metropolitan Life Ins.. 84 N.Y.2d 972, 622 N.Y.S.2d 496, 646 N.E.2d
798)." Robinson v Trade Link Am, 39 AD3d 616, 616-17 [2d Dept 2007].
As the Defendants moving papers establish aprlnro.face entitlement to summary judgment,
it is incumbent upon the Plaintiff to raise a triable issue of fact. Vozzo v Fair/ield llestlake Sq.,
LLC, 152 AD3d 815 l2d Dept20l7l.
The Plaintiff s sole submission is an attomey's affirmation in opposition. Such has no
evidentiary value. The Court's review of the NYSCEF filings reveals that the complaint was
unsigned and unverified. The Plaintifls Bill of Particulars appears to be an email which is not
signed or verified. The Plaintiffhas not submitted any admissible evidence nor does there appear
to be any in existence in the NYSCEF system. Thus. the Defendants are entitled to summary
judgment-
As the Court is granting summary judgment, a determination of the remaining issues raised
in the Defendant's motion is not necessarv.
Therefore, it is hereby,
ORDERED, that the Defendants' D'ARCANGELO & CO., LLP, and MICHAEL C.
BETROS, CPA, PFS, motion for summary judgment is GRANTED and the complaint is
DISMISSED as to those Defendants.
Dated: February 7,2024 ENTER:
Poughkeepsie, NY
Hon. Thomas R. Davis. J.S.C.
VIA NYSCEF
Pamela J. Gabiger, Esq.
P.O. Box 3455
A r torney for P I a int ilJ'
Poughkeepsie, NY I 2603
VIA NYSCEF
Page 2 of3
2 of 4
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FILED: DUTCHESS COUNTY CLERK 02/12/2024
02/09/2024 11:28
04:04 AM
PM INDEX NO. 2021-55036
NYSCEF DOC. NO. 44
39 RECEIVED NYSCEF: 02/12/2024
02/07/2024
Bridget Molly Schultz, Esq.
Maynard O'Connor Smith & Catalinotto, LLP
At tor ney.for De fe ndant s
6 Tower Place
Albany, NY 12203
Pursuant to CPLR Section 5513, an appeal as ofright must be taken within thirty days afier servrce
by a party upon the appellant ofa copy ofthe judgment or order appealed from and wdtten notice
of its entry, except that when the appellant has served a copy ofthejudgment or order and written
notice of its entry, the appeal must be taken within thirty days thereof.
Page 3 of3
3 of 4
4 3
Preview
FILED: DUTCHESS COUNTY CLERK 02/12/2024 11:28 AM INDEX NO. 2021-55036 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/12/2024 STATE OF NEW YORK SUPREME COURT COUNTY OF DUTCHESS ______________________________________________________________________________ NANCY LAURICELLA, NOTICE OF ENTRY Plaintiff, Index No.: 2021-55036 -against- D’ARCANGELO & CO., LLP, and MICHAEL C. BETROS, CPA, PFS, and ARLINGTON PROFESSIONAL SUITES, LLC, Defendants. ______________________________________________________________________________ PLEASE TAKE NOTICE that the within is a true and complete copy of the Amended Decision and Order executed by the Honorable Thomas R. Davis, J.S.C., on February 7, 2024, and duly entered in the Dutchess County Clerk’s Office on February 9, 2024. Dated: February 12, 2024 MAYNARD, O'CONNOR, SMITH & CATALINOTTO, LLP /s/ Bridget M. Schultz ___________________________________ Bridget M. Schultz Attorneys for Defendants 6 Tower Place Albany, New York 12203 (518) 465-3553 TO: Pamela Gabiger, Esq. P.O. Box 2952 Poughkeepsie, New York 12603 {M1182645.1} 1 of 4 FILED: DUTCHESS COUNTY CLERK 02/12/2024 02/09/2024 11:28 04:04 AM PM INDEX NO. 2021-55036 NYSCEF DOC. NO. 44 39 RECEIVED NYSCEF: 02/12/2024 02/07/2024 SUPREME COURT- STATE OF NEW YORK DUTCHESS COUNTY Present: Hon. THOMAS R. DAVIS. J.S.C. SUPREME COURT: DUTCHESS COUNTY x NANCY I,AURICELLA. AMENDED Plaintif(s). DECISION AND ORDER (Motion Seq. #1) -against- lndex No.: 2021-55036 D'ARCANGELO & CO., LLP, AND MICHAEL C. BETROS. CPA. PFS, AND ARLINGTON PROFESSIONAL SUITES, LLC. Defbndant(s) x In this personal injury action arising from a slip and fall on ice, the Defendants D'ARCANGELO & CO., LLP. ("D'Arcangelo") and MICHAEL C. BETROS, CPA, PFS. The Defendants motion is suppofled by an affidavit lrom Delendant Betros who identifies himself as a member of the LLC which owns the property. Arlington, and a commercial tenant at the property. D'Arcangelo. Betros was present on the date ofthe Plaintilf s fall. Betros' affidavit, based on personal knowledge, avers that none of the def'endants had notice of the icy patch on which the Plaintiff allegedly fell. Also attached to the Def'endant's moving papers is the Plaintifls deposition transcript. While the transcript is unsigned, the fact that it is presented by the Del'endant allows the Court to consider same, as it is unchallenged by the Plaintiff. "The Supreme Court properly considered Green's unsigned deposition transcript since it was certified by the reporter and the plaintiff did not challenge the accuracy of the transcript (sea ,lung Geun Lee v. Mason, I 3 9 A.D.3d 807, 808, 33 N.Y.S.3d 7 6; Gezelter v. Pecora, 129 A.D.3d 1021.1022, l3 N.Y.S.3d l4l)." Ciruldo v County of lVastchester. 147 AD3d 813. 814 [2d Dept 20171. In that transcript, the Plaintiffrepeatedly refers to her fall having taken place on "black ice." She olfers no factual support tbr any notice to any ofthe Defendants ofan icy condition. "The injured plaintiff alleged that he slipped and fbll on a patch of ''black ice" in the defendants' driveway. A property owner will be held liable for a slip-and-fall accident involving snow and ice on its property only when it created the dangerous condition which caused the accident or had actual or constructive notice thereof (see Fahey v. Serola, 23 A.D.3d 335, 806 Page I of3 1 of 4 2 3 FILED: DUTCHESS COUNTY CLERK 02/12/2024 02/09/2024 11:28 04:04 AM PM INDEX NO. 2021-55036 NYSCEF DOC. NO. 44 39 RECEIVED NYSCEF: 02/12/2024 02/07/2024 N.Y.S.2d 70;Zabbiov. lYestwood, ZZC, l8 A.D.3d 542,795 N.Y.S.2d 319; Cody v. Dilorenzo, 304 A.D.2d 705, 757 N.Y.S.2d 789; Voss v. D & C Parking, 299 A.D.2d 346, 749 N.Y.S.2d 76; see also Simmons v. Metropolitan Life Ins.. 84 N.Y.2d 972, 622 N.Y.S.2d 496, 646 N.E.2d 798)." Robinson v Trade Link Am, 39 AD3d 616, 616-17 [2d Dept 2007]. As the Defendants moving papers establish aprlnro.face entitlement to summary judgment, it is incumbent upon the Plaintiff to raise a triable issue of fact. Vozzo v Fair/ield llestlake Sq., LLC, 152 AD3d 815 l2d Dept20l7l. The Plaintiff s sole submission is an attomey's affirmation in opposition. Such has no evidentiary value. The Court's review of the NYSCEF filings reveals that the complaint was unsigned and unverified. The Plaintifls Bill of Particulars appears to be an email which is not signed or verified. The Plaintiffhas not submitted any admissible evidence nor does there appear to be any in existence in the NYSCEF system. Thus. the Defendants are entitled to summary judgment- As the Court is granting summary judgment, a determination of the remaining issues raised in the Defendant's motion is not necessarv. Therefore, it is hereby, ORDERED, that the Defendants' D'ARCANGELO & CO., LLP, and MICHAEL C. BETROS, CPA, PFS, motion for summary judgment is GRANTED and the complaint is DISMISSED as to those Defendants. Dated: February 7,2024 ENTER: Poughkeepsie, NY Hon. Thomas R. Davis. J.S.C. VIA NYSCEF Pamela J. Gabiger, Esq. P.O. Box 3455 A r torney for P I a int ilJ' Poughkeepsie, NY I 2603 VIA NYSCEF Page 2 of3 2 of 4 3 3 FILED: DUTCHESS COUNTY CLERK 02/12/2024 02/09/2024 11:28 04:04 AM PM INDEX NO. 2021-55036 NYSCEF DOC. NO. 44 39 RECEIVED NYSCEF: 02/12/2024 02/07/2024 Bridget Molly Schultz, Esq. Maynard O'Connor Smith & Catalinotto, LLP At tor ney.for De fe ndant s 6 Tower Place Albany, NY 12203 Pursuant to CPLR Section 5513, an appeal as ofright must be taken within thirty days afier servrce by a party upon the appellant ofa copy ofthe judgment or order appealed from and wdtten notice of its entry, except that when the appellant has served a copy ofthejudgment or order and written notice of its entry, the appeal must be taken within thirty days thereof. Page 3 of3 3 of 4 4 3