Preview
FILED: DUTCHESS COUNTY CLERK 02/20/2024 05:18 PM INDEX NO. 2021-55036
NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 02/20/2024
STATE OF NEW YORK
SUPREME COURT COUNTY OF DUTCHESS
NANCY LAURICELLA,
Plaintiff,
AFFIDAVIT
- against -
Index No. 2021-55036
D’ARCANGELO & CO., LLP,
and MICHAEL C. BETROS, CPA, PFS,
and ARLINGTON PROFESSIONAL SUITES, LLC
Defendants.
STATE OF NEW YORK )
) ss.:
COUNTY OF DUTCHESS )
MICHAEL C. BETROS, CPA/PFS, being duly sworn deposes and says:
1. I am a named defendant in this action in my individual capacity.
2. I am also a member of defendant, Arlington Professional Suites, LLC (hereinafter
Arlington”). I have been a member of Arlington since 2018.
3. I am also a former partner of defendant, D’Arcangelo & Co., LLP
(“D’Arcangelo”). I was a partner with D’Arcangelo from 1988 through 2019. In or around 2020,
the Poughkeepsie office of D’Arcangelo (where I worked) merged with another company^
4. I submit this affidavit in support of the motion for summary judgment submitted
on behalf of D’Arcangelo and myself (in my individual capacity)^.
I
The Poughkeepsie, Millbrook and Rye Brook offices of D’Arcangelo & Co., LLP merged with another firm on
1/1/20. However, there were a number of offices in Rome, NY, Utica and Syracuse that did not merge and stayed as
D’Arcangelo & Co., LLP
2 I deny that Arlington is liable for plaintiffs alleged fall. However, my counsel has advised that the Court has
granted D’Arcangelo and myself leave to move for summary judgment prior to the conclusion of discovery, as the
Parties have acknowledged that all discovery has been completed with respect to ownership/maintenance of the real
{M1161884.1}
FILED: DUTCHESS COUNTY CLERK 02/20/2024 05:18 PM INDEX NO. 2021-55036
NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 02/20/2024
5. As an aside, on or about March 30, 2023, I appeared for a deposition that was
noticed by plaintiffs counsel. I appeared on behalf of all three (3) defendants. My counsel has
advised that plaintiffs counsel has yet to serve my deposition transcript upon my attorney, so 1
have been unable to review my testimony.
6. I do not recall specifically what was asked of me at my deposition, but as best as 1
can remember, the facts detailed in this affidavit do not contradict my deposition testimony.
7. I offer this affidavit to provide the Court with information that was not elicited
from me at my examination before trial.
I reserve all rights under the CPLR as it relates to my ability to review and revise
(if applicable) my testimony.
9. By way of background, 1 am a Certified Public Accountant.
10. D’Arcangelo was an accounting firm, of which I was a partner.
11. On or about March 1, 1988, D’Arcangelo signed a commercial lease agreement
with Jean Patrick, the former owner of real property commonly known as 510 Haight Avenue
Poughkeepsie, New York (hereinafter the “Property”). I do not have the original lease agreement
in my file, but 1 do have a of D’Arcangelo’s lease with Jean Patrick dated November 9, 2010,
which is annexed hereto as Exhibit A.
12. The Property consists of multiple commercial suites, as well as a parking lot.
13. D’Arcangelo only leased a portion of the Property. The rest of the suites were
occupied by other commercial tenants.
14. Arlington purchased the Property in 2018. A copy of Arlington’s deed to the
Property is annexed hereto as Exhibit B.
property at issue in this action. Thus, 1 reserve all rights I have to submit another affidavit in the future on behalf of
Arlington if Arlington files a dispositive motion after the conclusion of discovery.
2
{Ml 161884.1)
FILED: DUTCHESS COUNTY CLERK 02/20/2024 05:18 PM INDEX NO. 2021-55036
NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 02/20/2024
15. Arlington assumed all leases in effect with the prior owner, which included
D’Arcangelo’s lease.
16. D'Arcangelo continued to lease space in the Property after Arlington purchased it.
17. In addition to D’Arcangelo, there were also approximately 6-7 other commercial
tenants that leased space from Arlington (including on the date of plaintiffs alleged accident).
In or around 2019, Arlington and D’Arcangelo entered into a lease amendment, a
copy of which is annexed hereto as Exhibit C^.
19. The lease and the lease amendment are collectively referred to herein as the
Lease.
20. Section 38 of the Lease requires the landlord of the property to ‘●maintain the
exterior of the office building which houses the demised premises, make structural repairs, and
be responsible for the removal of ice and snow from the sidewalks and parking lot.”
21. Thus, based upon the plain language of the lease, D’Arcangelo (and myself) had
no contractual obligation/duty to remove ice and snow from the parking lot.
22. It is my understanding that plaintiff alleges she tripped and fell on ice in the
Property parking lot on January 7, 2019.
23. A photograph of the ice Ms. Lauricella allegedly tripped on is annexed hereto as
Exhibit D.
24. Neither myself, nor anyone from D’Arcangelo or Arlington, “created” or “made'
this ice.
25. At the time of this alleged fall, 1 was working in the D’Arcangelo office suite at
the Property. Her alleged fall occurred during normal business hours.
^ 1 unfortunately cannot locate a signed copy of the amendment, but I do know that it was signed.
3
{M116I884.I)
FILED: DUTCHESS COUNTY CLERK 02/20/2024 05:18 PM INDEX NO. 2021-55036
NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 02/20/2024
26. My counsel advised that plaintiff testified that she initially reported her fall to
RSS, which was another tenant in the Property at the time of her fall. It is my further
understanding that plaintiff testified that RSS advised her to report the accident to me (as a
member of Arlington, the landlord).
27. 1 recall plaintiff reporting her fall to me while I was working in the D’Arcangelo
suite. I assume this is why plaintiff wrongly believes D’Arcangelo (and/or myself) has something
to do with maintenance of the parking lot.
28. When plaintiff reported her accident to me, I had authority to take down
plaintiffs recollection of her fall in the parking lot on behalf of Arlington, but I just so happened
to be working in the D'Arcangelo suite at the time she reported her fall to me.
29. Ms. Lauricella pointed out the patch of ice that she allegedly tripped on after her
fall. I brought out salt that Arlington purchased, and proceeded to salt the ice patch. I did this
work in my capacity as the member of Arlington (i.e., the landlord).
30. I had not seen the ice patch before plaintiff pointed it out to me after her alleged
fall. In addition, I was aware of no other prior complaints regarding the ice patch, either.
31. At all times material hereto, neither D’Arcangelo nor I (in my individual capacity)
have a duty to maintain the parking lot.
32. At all times material hereto, neither D’Arcangelo nor I (in my individual capacity)
have ever held an ownership interest in the Property and/or the parking lot.
33. At all times material hereto, neither D’Arcangelo nor 1 (in my individual capacity)
was ever responsible to clear snow and ice from the parking lot.
34. At all times material hereto, my sole involvement with the Property was related to
my corporate relationship with Arlington and D’Arcangelo.
4
{MM61884.1}
FILED: DUTCHESS COUNTY CLERK 02/20/2024 05:18 PM INDEX NO. 2021-55036
NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 02/20/2024
35.
I do not lease space from Arlington in my individual capacity.
36. I am not required to hire contractors to clear snow and ice in my individual
capacity.
37. Simply put, neither D’Arcangelo nor I (in my individual capacity) have a duty to
maintain and/or repair the parking lot of the Property.
38. Thus, 1 respectfully submit that D’Arcangelo and I (in my individual capacity) be
dismissed from this ease because we had absolutely no duty to maintain the parking lot where
Plaintiff alleges she fell.
£1
ICHAEL C. BETROS, CPA,\^FS
Sworn to before me this
day of October, 2023.
u X.
Notary Public - State of New York
LORILYN A. LAPOLLA
notary public-state of new YORK
NO.01LA4910698
Qualified in Dutchess County
MyCommission Expires 02-28-2026
5
t\fl I61S84.I)
Preview
FILED: DUTCHESS COUNTY CLERK 02/20/2024 05:18 PM INDEX NO. 2021-55036 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 02/20/2024 STATE OF NEW YORK SUPREME COURT COUNTY OF DUTCHESS NANCY LAURICELLA, Plaintiff, AFFIDAVIT - against - Index No. 2021-55036 D’ARCANGELO & CO., LLP, and MICHAEL C. BETROS, CPA, PFS, and ARLINGTON PROFESSIONAL SUITES, LLC Defendants. STATE OF NEW YORK ) ) ss.: COUNTY OF DUTCHESS ) MICHAEL C. BETROS, CPA/PFS, being duly sworn deposes and says: 1. I am a named defendant in this action in my individual capacity. 2. I am also a member of defendant, Arlington Professional Suites, LLC (hereinafter Arlington”). I have been a member of Arlington since 2018. 3. I am also a former partner of defendant, D’Arcangelo & Co., LLP (“D’Arcangelo”). I was a partner with D’Arcangelo from 1988 through 2019. In or around 2020, the Poughkeepsie office of D’Arcangelo (where I worked) merged with another company^ 4. I submit this affidavit in support of the motion for summary judgment submitted on behalf of D’Arcangelo and myself (in my individual capacity)^. I The Poughkeepsie, Millbrook and Rye Brook offices of D’Arcangelo & Co., LLP merged with another firm on 1/1/20. However, there were a number of offices in Rome, NY, Utica and Syracuse that did not merge and stayed as D’Arcangelo & Co., LLP 2 I deny that Arlington is liable for plaintiffs alleged fall. However, my counsel has advised that the Court has granted D’Arcangelo and myself leave to move for summary judgment prior to the conclusion of discovery, as the Parties have acknowledged that all discovery has been completed with respect to ownership/maintenance of the real {M1161884.1} FILED: DUTCHESS COUNTY CLERK 02/20/2024 05:18 PM INDEX NO. 2021-55036 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 02/20/2024 5. As an aside, on or about March 30, 2023, I appeared for a deposition that was noticed by plaintiffs counsel. I appeared on behalf of all three (3) defendants. My counsel has advised that plaintiffs counsel has yet to serve my deposition transcript upon my attorney, so 1 have been unable to review my testimony. 6. I do not recall specifically what was asked of me at my deposition, but as best as 1 can remember, the facts detailed in this affidavit do not contradict my deposition testimony. 7. I offer this affidavit to provide the Court with information that was not elicited from me at my examination before trial. I reserve all rights under the CPLR as it relates to my ability to review and revise (if applicable) my testimony. 9. By way of background, 1 am a Certified Public Accountant. 10. D’Arcangelo was an accounting firm, of which I was a partner. 11. On or about March 1, 1988, D’Arcangelo signed a commercial lease agreement with Jean Patrick, the former owner of real property commonly known as 510 Haight Avenue Poughkeepsie, New York (hereinafter the “Property”). I do not have the original lease agreement in my file, but 1 do have a of D’Arcangelo’s lease with Jean Patrick dated November 9, 2010, which is annexed hereto as Exhibit A. 12. The Property consists of multiple commercial suites, as well as a parking lot. 13. D’Arcangelo only leased a portion of the Property. The rest of the suites were occupied by other commercial tenants. 14. Arlington purchased the Property in 2018. A copy of Arlington’s deed to the Property is annexed hereto as Exhibit B. property at issue in this action. Thus, 1 reserve all rights I have to submit another affidavit in the future on behalf of Arlington if Arlington files a dispositive motion after the conclusion of discovery. 2 {Ml 161884.1) FILED: DUTCHESS COUNTY CLERK 02/20/2024 05:18 PM INDEX NO. 2021-55036 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 02/20/2024 15. Arlington assumed all leases in effect with the prior owner, which included D’Arcangelo’s lease. 16. D'Arcangelo continued to lease space in the Property after Arlington purchased it. 17. In addition to D’Arcangelo, there were also approximately 6-7 other commercial tenants that leased space from Arlington (including on the date of plaintiffs alleged accident). In or around 2019, Arlington and D’Arcangelo entered into a lease amendment, a copy of which is annexed hereto as Exhibit C^. 19. The lease and the lease amendment are collectively referred to herein as the Lease. 20. Section 38 of the Lease requires the landlord of the property to ‘●maintain the exterior of the office building which houses the demised premises, make structural repairs, and be responsible for the removal of ice and snow from the sidewalks and parking lot.” 21. Thus, based upon the plain language of the lease, D’Arcangelo (and myself) had no contractual obligation/duty to remove ice and snow from the parking lot. 22. It is my understanding that plaintiff alleges she tripped and fell on ice in the Property parking lot on January 7, 2019. 23. A photograph of the ice Ms. Lauricella allegedly tripped on is annexed hereto as Exhibit D. 24. Neither myself, nor anyone from D’Arcangelo or Arlington, “created” or “made' this ice. 25. At the time of this alleged fall, 1 was working in the D’Arcangelo office suite at the Property. Her alleged fall occurred during normal business hours. ^ 1 unfortunately cannot locate a signed copy of the amendment, but I do know that it was signed. 3 {M116I884.I) FILED: DUTCHESS COUNTY CLERK 02/20/2024 05:18 PM INDEX NO. 2021-55036 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 02/20/2024 26. My counsel advised that plaintiff testified that she initially reported her fall to RSS, which was another tenant in the Property at the time of her fall. It is my further understanding that plaintiff testified that RSS advised her to report the accident to me (as a member of Arlington, the landlord). 27. 1 recall plaintiff reporting her fall to me while I was working in the D’Arcangelo suite. I assume this is why plaintiff wrongly believes D’Arcangelo (and/or myself) has something to do with maintenance of the parking lot. 28. When plaintiff reported her accident to me, I had authority to take down plaintiffs recollection of her fall in the parking lot on behalf of Arlington, but I just so happened to be working in the D'Arcangelo suite at the time she reported her fall to me. 29. Ms. Lauricella pointed out the patch of ice that she allegedly tripped on after her fall. I brought out salt that Arlington purchased, and proceeded to salt the ice patch. I did this work in my capacity as the member of Arlington (i.e., the landlord). 30. I had not seen the ice patch before plaintiff pointed it out to me after her alleged fall. In addition, I was aware of no other prior complaints regarding the ice patch, either. 31. At all times material hereto, neither D’Arcangelo nor I (in my individual capacity) have a duty to maintain the parking lot. 32. At all times material hereto, neither D’Arcangelo nor I (in my individual capacity) have ever held an ownership interest in the Property and/or the parking lot. 33. At all times material hereto, neither D’Arcangelo nor 1 (in my individual capacity) was ever responsible to clear snow and ice from the parking lot. 34. At all times material hereto, my sole involvement with the Property was related to my corporate relationship with Arlington and D’Arcangelo. 4 {MM61884.1} FILED: DUTCHESS COUNTY CLERK 02/20/2024 05:18 PM INDEX NO. 2021-55036 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 02/20/2024 35. I do not lease space from Arlington in my individual capacity. 36. I am not required to hire contractors to clear snow and ice in my individual capacity. 37. Simply put, neither D’Arcangelo nor I (in my individual capacity) have a duty to maintain and/or repair the parking lot of the Property. 38. Thus, 1 respectfully submit that D’Arcangelo and I (in my individual capacity) be dismissed from this ease because we had absolutely no duty to maintain the parking lot where Plaintiff alleges she fell. £1 ICHAEL C. BETROS, CPA,\^FS Sworn to before me this day of October, 2023. u X. Notary Public - State of New York LORILYN A. LAPOLLA notary public-state of new YORK NO.01LA4910698 Qualified in Dutchess County MyCommission Expires 02-28-2026 5 t\fl I61S84.I)