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FILED: BRONX COUNTY CLERK 03/28/2019 10:11 PM INDEX NO. 21962/2015E
NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 03/28/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
--------------------------------------------------------- --X Index #21962/2015E
CLINTON TOMLIN,
Assigned Justice:
Plaintiff, Hon. Fernando Tapia, J.S.C.
-against- AFFIRMATION IN
SUPPORT OF
JOSEPH JEMAL, individually and d/b/a ORDER TO SHOW CAUSE
209 W. 125TH STREET REALTY ASSOCIATES
LLC, COMJEM ASSOCIATES LTD., SPRINT
SPECTRUM REALTY COMPANY, L.P.
and SPRINT/UNITED MANAGEMENT
COMPANY, i/s/h/a SPRINT NEXTEL
Defendants.
-------- ---------------------------------X
SPRINT SPECTRUM REALTY COMPANY, L.P.
and SPRINT/UNITED MANAGEMENT
COMPANY,
Third-Party Plaintiffs,
-against-
CB RICHARD ELLIS, INC. and CBRE, INC.,
Third-Party Defendants.
_________.._ _______________________ ---------------X
SPRINT SPECTRUM COMPANY, L.P. and
SPRINT/UNITED MANAGEMENT COMPANY,
Second Third-Party Plaintiffs,
-against-
FRONTSTREET FACILITY SOLUTIONS, INC.,
Second Third-Party Defendant.
---------------------- --------------------X
MARK P. CAMBARERI, an attorney duly admitted to practice law in the State of
New York, does hereby affirm under penalties of perjury:
1. I am associated with the law firm of Sobo & Sobo, LLP, attorneys for Plaintiff
Clinton Tomlin.
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2. I make this affirmation in support of Plaintiff's order to show cause for an order:
(i)Pursuant to CPLR 5015(a)(1) vacating the Court's February 28, 2019 orders
dismissing the above-captioned action and further restoring the action to the
Court's Motion calendar for oral argument on the prior summary judgment
motions; and
(ii)Pursuant to CPLR 2221(a) & (e) granting reconsideration or renewal of the
prior motions for summary judgment and, upon reconsideration, vacating the
Court's February 28, 2019 orders dismissing the above-captioned action and
further restoring the action to the Court's Motion calendar for oral argument on
the prior summary judgment motions; and
(iii)Not signing the Proposed Judgment with Notice of Settlement dated for
entry on April 5, 2019.
3. This affirmation is based upon my review of pertinent files and records
maintained in the office of Sobo & Sobo, LLP.
4. Annexed hereto, as exhibits, are copies of the following documents:
EXHIBIT 1: Copy of the two Court Orders that granted summary
judgment in motion sequence 6 and 7 dated February 28,
2019.
EXHIBIT 2: Copy of Notice of Settlement with proposed Judgment to
be settled on April 5, 2019.
EXHIBIT 3: Copy of Document List from NYSCEF which liststhe
documents efiled in the prior motions.
EXHIBIT 4: Affirmation of Gus P. Fotopoulos, Esq.
EXHIBIT 5: Affidavit of Jean Schreiner.
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5. The papers which were part of the record in the prior motions were
submitted by efiling and also as hard copies. CPLR 2214(c) provides that
those documents do not have to be attached and submitted a second time
with a motion for reconsideration or renewal. The statute states as follows:
(c) Furnishing papers to the court. Each party shall furnish to the
court all papers served by that party. The moving party shall
furnish all other papers not already in the possession of the court
necessary to the consideration of the questions involved. Except
when the rules of the court provide otherwise, in an e-filed action,
a party that files papers in connection with a motion need not
include copies of papers that were filed previously electronically
with the court, but may make reference to them, giving the docket
numbers on the e-filing system.
6. Upon information and belief the Court's rules do not require the previously
filed papers to be filed a second time herein. See, Keech v 30 E. 85th St.
(2nd
Co., LLC, 154 A.D.3d 504, 61 N.Y.S.3d 499 Dept., 2017) ("CPLR
2214 (c) provides that a party filing a motion in an e-filed action, such as
this,need not include copies of papers that were previously filed
(1st
electronically."); Leary v Bendow, 161 A.D.3d 420, 76 N.Y.S.3d 519
defendants'
Dept., 2018) ("Although plaintiffs failed to include a copy of
original motion to strike with the renewal motion, this did not violate
CPLR 2214 (c) because the original motion had been electronically filed
and therefore was available to the parties and the court.").
7. Accordingly, reference is made to the following:
Motion Sea 6:
Document # Item
126 Notice of Motion by CBRE
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127 Affirmation in Support
128 Exhibits A-G
153 Affirmation in Partial Opposition by SPRINT
154 to 165 Exhibit A through Exhibit L- which were also submitted
under Motion Seq 7 (see #141-150 below)
191 Affirmation in Opposition by Plaintiff
192 Exhibit 1- SPRINT employee business card
193 Exhibit 2- Photographs
194 Exhibit 3- Photographs
201 Reply Affirmation by FRONTSTREET
Motion Seq 7:
Document # I_ttem
137 Notice of Motion by SPRINT
138 Affirmation in Support by SPRINT
139 Exhibit A- Summons and Complaint
140 Exhibit B- SPRINT'S Answer
141 Exhibit C- Amended Answer 209 Conjem
by West,
142 Exhibit D- Third S & C
Party
143 Exhibit E- Second Third S&C
Party
F- Elllis'
144 Exhibit Third Party Defendant, Answer
G- FRONTSTREET'
145 Exhibit Third Party Def, Answer
146 Exhibit H- of Disc as to Joseph Jemel
Stip Defendant,
147 Exhibit I- Stipulation to Amend Caption
148 Exhibit J- Plaintiff's Deposition Transcript
149 Exhibit K- Certified Weather Records
150 Exhibit L- Plaintiff's Bill of Particulars
151 Memorandum of Law by SPRINT
166 Notice of Cross Motion (same relief) by FRONTSTREET
167 Affirmation in Support of Cross-Motion by FRONTSTREET
168 Exhibit A- Summons and Complaint
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169 Exhibit B- Notice of Impleader Third Action
Party
170 Exhibit C- Notice of Impleader Second Third Action
Party
171 Exhibit D- Plaintiff's Bill of Particulars
172 Exhibit E- Plaintiff's Deposition
173 Exhibit F- Affidavit of Dara Maxwell (FRONTSTREET)
174 Exhibit G- Master Services Agreement
175 Exhibit H- FRONTSTREET'S Work Order Notes
176 Exhibit I- Agreement betw FRONTSTREET and AP Facilities
Consultant's Inc.
177 Exhibit J- Letter to dated November 2016
attorney 9,
178 Memorandum of Law by FRONTSTREET
181 Affirmation in Opposition to Cross Motion by SPRINT
182 Stipulation withdrawing Cross Motion by FRONTSTREET
as to claims with SPRINT
196 Affirmation in Opposition by Plaintiff
197 Exhibit 1- SPRINT employee business card
198 Exhibit 2- Photographs
199 Exhibit 3- Photographs
202 Reply Affirmation by SPRINT
203 Exhibit A- Responses SPRINT
Discovery by
204 Exhibit B- Photographs
PERTINENT BACKGROUND
8. This is a personal injury action that arises from a slip and fall accident which
occurred upon the slippery sidewalk directly in front of the entrance to the
SPRINT Store, 209 West 125th Street in the City and State of New York.
THE PRIOR MOTIONS FOR SUMMARY JUDGMENT
5. By Notice returnable November 27, 2018, the Third-Party Defendants, CB
RICHARD ELLIS, INC. and CBRE, INC. (hereinafter referred to as
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"CRBE"), moved for summary judgment as against the Plaintiff's complaint
progress'
upon grounds of a 'storm in and lack of notice (motion seq. 6,
documents). Subsequently, by Notice returnable on December 27, 2018, the
Defendants, 209 W. 125TH STREET REALTY ASSOCIATES, LLC,
COMJEM ASSOCIATES LTD., SPRINT SPECTRUM REALTY
COMPANY, L.P. and SPRINT/UNITED MANAGEMENT COMPANY,
"SPRINT"
i/s/h/a SPRINT NEXTEL (hereinafter referred to as or
"Defendants"), also moved for summary judgment against Plaintiff's
complaint, albeit only upon storm in progress grounds (motion seq. 7).
Finally, by Notice returnable December 27, 2018, the Second-Third Party
Defendant, FRONTSTREET FACILITY SOLUTIONS, INC. (hereinafter
referred to as "FRONTSTREET"), cross-moved for the same relief as the
Defendants (motion seq. 7).
6. These applications were timely opposed by the undersigned attorney, and
Defendants'
efiled and served by mail on February 11, 2019. reply
Affirmations were efiled on February 15, 2019.
7. Oral Argument was scheduled by the Court for February 28, 2019, by
emailing notices on both motions seq 6 and 7. Unfortunately, the Plaintiff's
office did not appear because the appearance was not in the firm's
assignment calendar.
REASONABLE EXCUSE FOR NON-APPEARANCE
8. In fact, our offices first became aware of the matter being scheduled for Oral
argument on the day of the appearance when a call was received by
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Defendant's attorney, Abigail Bowen, Esq.
9. In the initial conversation, Ms. Bowen telephoned and spoke to paralegal,
Jean Schreiner. Ms. Schreiner reviewed her emails and did not seen any
notifications from the tracking system with ecourts and did not have any
prior knowledge of the appearance date. See Ms. Schreiner's Affidavit
attached hereto as Exhibit 5.
10. Ms. Schreiner then contacted the attorney assigned to this file,Gus
Fotopoulos, by texting his cellphone. Mr. Fotopoulos then contacted Abigail
Bowen, Esq., the defense attorney attending the appearance at the Court. Mr.
Fotopoulos offered to travel to the Court and arrive in approximately 45
minutes. Abigail Bowen, Esq., informed Mr. Fotopoulos that she had asked
for an adjournment of Oral Argument on our behalf but was denied. See, the
Affirmation of Gus Fotopoulos attached hereto as Exhibit 4.
1l. Ms. Bowen then utilized her cellphone so that a male employee with the
Court could speak to Mr. Fotopoulos. Mr. Fotopoulos was told that our
offices had been notified by email and ecourts of this oral argument and
therefore the motions would be granted and we could move for
reconsideration. He then ended the conversation.
12. Jean Schreiner then confirmed with the calendar departmeñt that the Court
had sent an email sent at 5:21 p.m., the night before and then searched for the
email which had been sent a week earlier. He confirmed that the emails had
not been forwarded to anyone. Therefore, the reason the Oral Argument was
not attended by Plaintiff's counsel was because the assigned attorney and
paralegal, and myself, had not been notified earlier.
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13. There was no manner in which our office could attend Oral Argument
Defendants'
immediately after receiving the telephone call from attorney that
morning because Gus Fotopoulos was at Orange County Supreme Court and
our office had no other attorney immediately available in the Bronx or New
York City. I also worked in the Orange County office until Mid-March.
14. The Court granted both motion sequence 6 and 7 in separate short form
orders dated February 28, 2019 and dismissed the action, without considering
plaintiff's Oral Argument or possibly the Plaintiff's opposition papers. A
copy of both Orders is attached hereto as Exhibit 1.
15. Our offices tried to obtain consent for reconsideration but was denied consent
from opposing counsel. It isbelieved opposing counsel wrote the contents of
the Orders which were then signed and entered (Exhibit 1).
16. Thereafter, opposing counsel submitted a judgment with Notice of Settlement
dated for April 5, 2019 (Exhibit 2). It isrespectfully requested that the
judgment not be signed.
MERITORIOUS OPPOSITION TO THE MOTIONS
17. Procedurally, the Motions were premature. There have been no depositions
held other than that of the Plaintiff. The SPRINT and CRBE Defendants
have not served affidavits from persons they would present as witnesses.
The Second Third Party Defendant, FRONTSTREET, submitted the sole
Affidavit in the record (Doc #173). Its witness stated ithad contracted to
perform snow removal. However, itdid not affirm that SPRINT or CRBE
had not made any efforts prior to the time of accident. Accordingly, the
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Summary Judgment Motions did not address or present any evidence that the
store employees for SPRINT or CRBE did not create, exacerbate or worsen
conditions in their snow removal efforts. Nor is there evidence they had not
begun to remove snow and ice from the sidewalk because of the 'storm in
progress'. Therefore, the Defendants, SPRINT and CRBE, had not met their
initial burden of proof to eliminate allissues of fact.
18. Knowledge of whether the SPRINT employees saw the accident or whether
they made conditions on the sidewalk more hazardous is within the exclusive
knowledge of the Defendants. The Plaintiff testified that he obtained a
business card from a SPRINT employee. Defendants have affirmed Mr.
Francisco Martinez is no longer an employee, but have not provided his last
known address for subpoena (Doc #202). Therefore, the Motion was
premature. CPLR §3212.
19. The Plaintiff's sworn testimony (Doc #150) and verified Bill of Particulars
(Doc#148) were submitted with the motions and can be considered as
sufficient or adequate for an Affidavit of Merit. There is a strong public
policy for Reconsideration of Oral Argument and determination on the merits
of the prior motions.
LEGAL ARGUMENT
Point I:
Plaintiff Should Be Relieved From
The February 28, 2019 Orders And
The Case Should Be Restored For Oral Argument
20. CPLR 5015(a)(1) provides, in pertinent part:
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R 5015. Relief from judgment or order.
**************************
On motion. The court which rendered a judgment or order
may relieve a party from itupon such terms as may be just, on
motion of any interested person with such notice as the court
may direct, upon the ground of:
excusable default, if such motion is made within one year
after service of a copy of the judgment or order with written
notice of itsentry upon the moving part, or if the moving
party has entered the judgment or order, within one year after
such entry; or
newly-discovered evidence which, if introduced at the trial,
would probably have produced a different result and which
could not have been discovered in time to move for a new trial
under section 4404. . ..
21. While our offices were advised to move for reconsideration, other sources
instruct that a motion to vacate a default is more appropriate. In Toos v.
(1st
Leggiadro International, 114 A.D.3d 559, 980 N.Y.S.2d 448 Dept.,
2014), the plaintiff defaulted in appearing for oral argument and moved
reargue. The motion was denied on procedural grounds that itwas a motion
to reargue rather than a motion to vacate pursuant to CPLR 5015(a). The
parties then filed a stipulation to allow oral argument which was denied and
the subsequent motion to vacate was denied. The Appellate Division
reversed and remanded the action for oral argument to be heard.
22. Alternatively, in Matter of Rivera v. New York City Department of
(ISt
Sanitation, 142 A.D.3d 463, 36 N.Y.S.3d 464 Dept., 2016), the
respondent missed the Article 78 Petition return date. The respondent moved
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to vacate the default pursuant to CPLR 5015. At oral argument on the
motion to vacate, the respondent explained:
At oral argument, respondents essentially conceded that, in
this e-filed case, their office failed to regularly check its
email and, as a result, was unaware of the motion court's order
Respondents'
that gave rise to the default. excuse was
sufficiently particularized and there is no evidence of wilful or
contumacious conduct on their part (see Reyes v New York
City Hous. Auth., 236 AD2d 277, 279 [1st Dept 1997]). E, at
142 A.D.3d 464.
23. Accordingly, itis respectfully contended that the within application is being
brought under the proper statute and that the failure to have the Court's email
noted and forwarded to Jean Schreiner, Gus Fotopoulos or myself, was an
inadvertent error and not willful or contumacious.
24. In its February 28, 2019 orders the Court held, inter alia, that "the judge
arguments..."
heard oral argument and considered the (Exhibit 1).
25. As set forth above Plaintiff's opposition papers, although timely served and
efiled, may not have been considered or that they were not adequately
represented without appearance by Plaintiff's counsel at Oral Argument. The
undersigned takes full and personal responsibility for this inadvertent
omission.
26. Respectfully, however, it issubmitted that in the interests of justice, the
Court may now entertain Plaintiff's opposition notwithstanding a mistake in
acknowledging the motion date set by the Court. Lui v. Arias, 287 A.D.2d
378, 731 N.Y.S.2d 615 (1st Dept. 2001).
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27. A party seeking to vacate a judgment of default pursuant to CPLR 5105(a)(1)
must show a reasonable excuse for the default and the existence of a
meritorious defense or cause of action. Toos v. Leagiadro International, 114
(1st
A.D.3d 559, 980 N.Y.S.2d 448 Dept., 2014). Vacatur under this rule lies
within the sound discretion of the trial court. Abel v. Estate of Collins, 73
(3rd
A.D.3d 1423, 1424, 901 N.Y.S.2d 749 Dept., 2010).
28. There was no willfulness or intent with respect to the nonappearance at the
Oral Argument and, as the opposition papers were timely served, there would
be no prejudice to Defendants should the Court exercise its discretion in
considering discussion of the opposition at Oral Argument. As such,
Plaintiff submits that he has demonstrated a reasonable excuse for the
default.
29. Moreover, itis respectfully submitted that Plaintiff has a meritorious cause of
action as shown in his Affirmation in Opposition (Doc #191, 196).
30. Under these circumstances, Plaintiff should be relieved of the Court's Orders
dated February 28, 2019 (Exhibit 1), and the case should be restored to the
Court's calendar for Oral Argument.
31. Additionally, the Defendant's proposed judgment with Notice of Settlement
(Exhibit 2) should not be entered.
Point II:
Plaintiff Should Be Granted Renewal And,
Defendants'
Upon Renewal Preclusion Motion Should Be Denied
And The Case Restored To The Court's Calendar
32. CPLR 2221(e) provides as follows:
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R 2221. Motion affecting prior order.
***************
(e) A motion for leave to renew:
1. shall be identified specifically as such;
2. shall be based upon new facts not offered on the prior motion
that would change the prior determination or shall
demonstrate that there has been a change in the law that would
change the prior determination; and
3. shall contain reasonable justification for the failure to present
such facts on the prior motion.
facts"
33. It iswell settled that the "new requirement of CPLR 2221(e) is a
flexible one, and that a court, in its discretion, may grant renewal upon facts
known to the moving party at the time of the original motion. Doviak v
(2nd
Finkelstein & Partners. LLP, 90 A.D.3d 696, 700, 934 N.Y.S.2d 467
Dept., 2011); see, also, Cruz v Bronx Lebanon Hosp. Center, 73 A.D.3d 597,
598, 905 N.Y.S.2d 135 (1st Dept. 2010) (failure to appear at status
conference); In re Estate of Menahem, 13 Misc.3d 1226[A](N.Y. Cty, Surr.
2006, p. 3).
34. A motion to renew may be grañted in the Court's discretion, in the interests
ofjustice, even on facts that were known to the movant at the time of the
original motion (Cruz v Bronx Lebanoñ Hosp. Center, supra, 73 A.D.3d at
598). "Indeed, 'even ifthe vigorous requirements for renewal are not met,
such relief may stillbe properly granted so as not to defeat substantial
fairness'"
(Id.,quoting Garner v Latimer, 306 A.D.2d 209, 210 [1st Dept.
2003]).
facts"
35. Regarding motion practice, "new could be the notarized portion of a
chiropractor's affidavit inadvertently omitted. Defina v. Daniel, 140 A.D.3d
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825, 33 N.Y.S.3d 421 (2nd Dept., 2016). It could also be law office failure
in improperly assembling and submitting the initial motion. Hackney v.
Monge, 103 A.D.3d 844, 960 N.Y.S.2d 176 (2nd Dept., 2013).
36. Plaintiff respectfully requests that the Court consider the following facts,
which either could not have been presented, or appear not to have been
presented, within the context of the prior motion:
a. Plaintiff's counsel had in place a calendar department which was
dedicated to receiving and forwarding all incoming messages from
NYSCEF.
b. The email messages were to be forwarded to the attorney assigned to
the file(the undersigned) and
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FILED: BRONX COUNTY CLERK 03/28/2019 10:11 PM INDEX NO. 21962/2015E NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 03/28/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX --------------------------------------------------------- --X Index #21962/2015E CLINTON TOMLIN, Assigned Justice: Plaintiff, Hon. Fernando Tapia, J.S.C. -against- AFFIRMATION IN SUPPORT OF JOSEPH JEMAL, individually and d/b/a ORDER TO SHOW CAUSE 209 W. 125TH STREET REALTY ASSOCIATES LLC, COMJEM ASSOCIATES LTD., SPRINT SPECTRUM REALTY COMPANY, L.P. and SPRINT/UNITED MANAGEMENT COMPANY, i/s/h/a SPRINT NEXTEL Defendants. -------- ---------------------------------X SPRINT SPECTRUM REALTY COMPANY, L.P. and SPRINT/UNITED MANAGEMENT COMPANY, Third-Party Plaintiffs, -against- CB RICHARD ELLIS, INC. and CBRE, INC., Third-Party Defendants. _________.._ _______________________ ---------------X SPRINT SPECTRUM COMPANY, L.P. and SPRINT/UNITED MANAGEMENT COMPANY, Second Third-Party Plaintiffs, -against- FRONTSTREET FACILITY SOLUTIONS, INC., Second Third-Party Defendant. ---------------------- --------------------X MARK P. CAMBARERI, an attorney duly admitted to practice law in the State of New York, does hereby affirm under penalties of perjury: 1. I am associated with the law firm of Sobo & Sobo, LLP, attorneys for Plaintiff Clinton Tomlin. 1 1 of 17 FILED: BRONX COUNTY CLERK 03/28/2019 10:11 PM INDEX NO. 21962/2015E NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 03/28/2019 2. I make this affirmation in support of Plaintiff's order to show cause for an order: (i)Pursuant to CPLR 5015(a)(1) vacating the Court's February 28, 2019 orders dismissing the above-captioned action and further restoring the action to the Court's Motion calendar for oral argument on the prior summary judgment motions; and (ii)Pursuant to CPLR 2221(a) & (e) granting reconsideration or renewal of the prior motions for summary judgment and, upon reconsideration, vacating the Court's February 28, 2019 orders dismissing the above-captioned action and further restoring the action to the Court's Motion calendar for oral argument on the prior summary judgment motions; and (iii)Not signing the Proposed Judgment with Notice of Settlement dated for entry on April 5, 2019. 3. This affirmation is based upon my review of pertinent files and records maintained in the office of Sobo & Sobo, LLP. 4. Annexed hereto, as exhibits, are copies of the following documents: EXHIBIT 1: Copy of the two Court Orders that granted summary judgment in motion sequence 6 and 7 dated February 28, 2019. EXHIBIT 2: Copy of Notice of Settlement with proposed Judgment to be settled on April 5, 2019. EXHIBIT 3: Copy of Document List from NYSCEF which liststhe documents efiled in the prior motions. EXHIBIT 4: Affirmation of Gus P. Fotopoulos, Esq. EXHIBIT 5: Affidavit of Jean Schreiner. 2 2 of 17 FILED: BRONX COUNTY CLERK 03/28/2019 10:11 PM INDEX NO. 21962/2015E NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 03/28/2019 5. The papers which were part of the record in the prior motions were submitted by efiling and also as hard copies. CPLR 2214(c) provides that those documents do not have to be attached and submitted a second time with a motion for reconsideration or renewal. The statute states as follows: (c) Furnishing papers to the court. Each party shall furnish to the court all papers served by that party. The moving party shall furnish all other papers not already in the possession of the court necessary to the consideration of the questions involved. Except when the rules of the court provide otherwise, in an e-filed action, a party that files papers in connection with a motion need not include copies of papers that were filed previously electronically with the court, but may make reference to them, giving the docket numbers on the e-filing system. 6. Upon information and belief the Court's rules do not require the previously filed papers to be filed a second time herein. See, Keech v 30 E. 85th St. (2nd Co., LLC, 154 A.D.3d 504, 61 N.Y.S.3d 499 Dept., 2017) ("CPLR 2214 (c) provides that a party filing a motion in an e-filed action, such as this,need not include copies of papers that were previously filed (1st electronically."); Leary v Bendow, 161 A.D.3d 420, 76 N.Y.S.3d 519 defendants' Dept., 2018) ("Although plaintiffs failed to include a copy of original motion to strike with the renewal motion, this did not violate CPLR 2214 (c) because the original motion had been electronically filed and therefore was available to the parties and the court."). 7. Accordingly, reference is made to the following: Motion Sea 6: Document # Item 126 Notice of Motion by CBRE 3 3 of 17 FILED: BRONX COUNTY CLERK 03/28/2019 10:11 PM INDEX NO. 21962/2015E NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 03/28/2019 127 Affirmation in Support 128 Exhibits A-G 153 Affirmation in Partial Opposition by SPRINT 154 to 165 Exhibit A through Exhibit L- which were also submitted under Motion Seq 7 (see #141-150 below) 191 Affirmation in Opposition by Plaintiff 192 Exhibit 1- SPRINT employee business card 193 Exhibit 2- Photographs 194 Exhibit 3- Photographs 201 Reply Affirmation by FRONTSTREET Motion Seq 7: Document # I_ttem 137 Notice of Motion by SPRINT 138 Affirmation in Support by SPRINT 139 Exhibit A- Summons and Complaint 140 Exhibit B- SPRINT'S Answer 141 Exhibit C- Amended Answer 209 Conjem by West, 142 Exhibit D- Third S & C Party 143 Exhibit E- Second Third S&C Party F- Elllis' 144 Exhibit Third Party Defendant, Answer G- FRONTSTREET' 145 Exhibit Third Party Def, Answer 146 Exhibit H- of Disc as to Joseph Jemel Stip Defendant, 147 Exhibit I- Stipulation to Amend Caption 148 Exhibit J- Plaintiff's Deposition Transcript 149 Exhibit K- Certified Weather Records 150 Exhibit L- Plaintiff's Bill of Particulars 151 Memorandum of Law by SPRINT 166 Notice of Cross Motion (same relief) by FRONTSTREET 167 Affirmation in Support of Cross-Motion by FRONTSTREET 168 Exhibit A- Summons and Complaint 4 4 of 17 FILED: BRONX COUNTY CLERK 03/28/2019 10:11 PM INDEX NO. 21962/2015E NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 03/28/2019 169 Exhibit B- Notice of Impleader Third Action Party 170 Exhibit C- Notice of Impleader Second Third Action Party 171 Exhibit D- Plaintiff's Bill of Particulars 172 Exhibit E- Plaintiff's Deposition 173 Exhibit F- Affidavit of Dara Maxwell (FRONTSTREET) 174 Exhibit G- Master Services Agreement 175 Exhibit H- FRONTSTREET'S Work Order Notes 176 Exhibit I- Agreement betw FRONTSTREET and AP Facilities Consultant's Inc. 177 Exhibit J- Letter to dated November 2016 attorney 9, 178 Memorandum of Law by FRONTSTREET 181 Affirmation in Opposition to Cross Motion by SPRINT 182 Stipulation withdrawing Cross Motion by FRONTSTREET as to claims with SPRINT 196 Affirmation in Opposition by Plaintiff 197 Exhibit 1- SPRINT employee business card 198 Exhibit 2- Photographs 199 Exhibit 3- Photographs 202 Reply Affirmation by SPRINT 203 Exhibit A- Responses SPRINT Discovery by 204 Exhibit B- Photographs PERTINENT BACKGROUND 8. This is a personal injury action that arises from a slip and fall accident which occurred upon the slippery sidewalk directly in front of the entrance to the SPRINT Store, 209 West 125th Street in the City and State of New York. THE PRIOR MOTIONS FOR SUMMARY JUDGMENT 5. By Notice returnable November 27, 2018, the Third-Party Defendants, CB RICHARD ELLIS, INC. and CBRE, INC. (hereinafter referred to as 5 5 of 17 FILED: BRONX COUNTY CLERK 03/28/2019 10:11 PM INDEX NO. 21962/2015E NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 03/28/2019 "CRBE"), moved for summary judgment as against the Plaintiff's complaint progress' upon grounds of a 'storm in and lack of notice (motion seq. 6, documents). Subsequently, by Notice returnable on December 27, 2018, the Defendants, 209 W. 125TH STREET REALTY ASSOCIATES, LLC, COMJEM ASSOCIATES LTD., SPRINT SPECTRUM REALTY COMPANY, L.P. and SPRINT/UNITED MANAGEMENT COMPANY, "SPRINT" i/s/h/a SPRINT NEXTEL (hereinafter referred to as or "Defendants"), also moved for summary judgment against Plaintiff's complaint, albeit only upon storm in progress grounds (motion seq. 7). Finally, by Notice returnable December 27, 2018, the Second-Third Party Defendant, FRONTSTREET FACILITY SOLUTIONS, INC. (hereinafter referred to as "FRONTSTREET"), cross-moved for the same relief as the Defendants (motion seq. 7). 6. These applications were timely opposed by the undersigned attorney, and Defendants' efiled and served by mail on February 11, 2019. reply Affirmations were efiled on February 15, 2019. 7. Oral Argument was scheduled by the Court for February 28, 2019, by emailing notices on both motions seq 6 and 7. Unfortunately, the Plaintiff's office did not appear because the appearance was not in the firm's assignment calendar. REASONABLE EXCUSE FOR NON-APPEARANCE 8. In fact, our offices first became aware of the matter being scheduled for Oral argument on the day of the appearance when a call was received by 6 6 of 17 FILED: BRONX COUNTY CLERK 03/28/2019 10:11 PM INDEX NO. 21962/2015E NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 03/28/2019 Defendant's attorney, Abigail Bowen, Esq. 9. In the initial conversation, Ms. Bowen telephoned and spoke to paralegal, Jean Schreiner. Ms. Schreiner reviewed her emails and did not seen any notifications from the tracking system with ecourts and did not have any prior knowledge of the appearance date. See Ms. Schreiner's Affidavit attached hereto as Exhibit 5. 10. Ms. Schreiner then contacted the attorney assigned to this file,Gus Fotopoulos, by texting his cellphone. Mr. Fotopoulos then contacted Abigail Bowen, Esq., the defense attorney attending the appearance at the Court. Mr. Fotopoulos offered to travel to the Court and arrive in approximately 45 minutes. Abigail Bowen, Esq., informed Mr. Fotopoulos that she had asked for an adjournment of Oral Argument on our behalf but was denied. See, the Affirmation of Gus Fotopoulos attached hereto as Exhibit 4. 1l. Ms. Bowen then utilized her cellphone so that a male employee with the Court could speak to Mr. Fotopoulos. Mr. Fotopoulos was told that our offices had been notified by email and ecourts of this oral argument and therefore the motions would be granted and we could move for reconsideration. He then ended the conversation. 12. Jean Schreiner then confirmed with the calendar departmeñt that the Court had sent an email sent at 5:21 p.m., the night before and then searched for the email which had been sent a week earlier. He confirmed that the emails had not been forwarded to anyone. Therefore, the reason the Oral Argument was not attended by Plaintiff's counsel was because the assigned attorney and paralegal, and myself, had not been notified earlier. 7 7 of 17 FILED: BRONX COUNTY CLERK 03/28/2019 10:11 PM INDEX NO. 21962/2015E NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 03/28/2019 13. There was no manner in which our office could attend Oral Argument Defendants' immediately after receiving the telephone call from attorney that morning because Gus Fotopoulos was at Orange County Supreme Court and our office had no other attorney immediately available in the Bronx or New York City. I also worked in the Orange County office until Mid-March. 14. The Court granted both motion sequence 6 and 7 in separate short form orders dated February 28, 2019 and dismissed the action, without considering plaintiff's Oral Argument or possibly the Plaintiff's opposition papers. A copy of both Orders is attached hereto as Exhibit 1. 15. Our offices tried to obtain consent for reconsideration but was denied consent from opposing counsel. It isbelieved opposing counsel wrote the contents of the Orders which were then signed and entered (Exhibit 1). 16. Thereafter, opposing counsel submitted a judgment with Notice of Settlement dated for April 5, 2019 (Exhibit 2). It isrespectfully requested that the judgment not be signed. MERITORIOUS OPPOSITION TO THE MOTIONS 17. Procedurally, the Motions were premature. There have been no depositions held other than that of the Plaintiff. The SPRINT and CRBE Defendants have not served affidavits from persons they would present as witnesses. The Second Third Party Defendant, FRONTSTREET, submitted the sole Affidavit in the record (Doc #173). Its witness stated ithad contracted to perform snow removal. However, itdid not affirm that SPRINT or CRBE had not made any efforts prior to the time of accident. Accordingly, the 8 8 of 17 FILED: BRONX COUNTY CLERK 03/28/2019 10:11 PM INDEX NO. 21962/2015E NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 03/28/2019 Summary Judgment Motions did not address or present any evidence that the store employees for SPRINT or CRBE did not create, exacerbate or worsen conditions in their snow removal efforts. Nor is there evidence they had not begun to remove snow and ice from the sidewalk because of the 'storm in progress'. Therefore, the Defendants, SPRINT and CRBE, had not met their initial burden of proof to eliminate allissues of fact. 18. Knowledge of whether the SPRINT employees saw the accident or whether they made conditions on the sidewalk more hazardous is within the exclusive knowledge of the Defendants. The Plaintiff testified that he obtained a business card from a SPRINT employee. Defendants have affirmed Mr. Francisco Martinez is no longer an employee, but have not provided his last known address for subpoena (Doc #202). Therefore, the Motion was premature. CPLR §3212. 19. The Plaintiff's sworn testimony (Doc #150) and verified Bill of Particulars (Doc#148) were submitted with the motions and can be considered as sufficient or adequate for an Affidavit of Merit. There is a strong public policy for Reconsideration of Oral Argument and determination on the merits of the prior motions. LEGAL ARGUMENT Point I: Plaintiff Should Be Relieved From The February 28, 2019 Orders And The Case Should Be Restored For Oral Argument 20. CPLR 5015(a)(1) provides, in pertinent part: 9 9 of 17 FILED: BRONX COUNTY CLERK 03/28/2019 10:11 PM INDEX NO. 21962/2015E NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 03/28/2019 R 5015. Relief from judgment or order. ************************** On motion. The court which rendered a judgment or order may relieve a party from itupon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of: excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of itsentry upon the moving part, or if the moving party has entered the judgment or order, within one year after such entry; or newly-discovered evidence which, if introduced at the trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial under section 4404. . .. 21. While our offices were advised to move for reconsideration, other sources instruct that a motion to vacate a default is more appropriate. In Toos v. (1st Leggiadro International, 114 A.D.3d 559, 980 N.Y.S.2d 448 Dept., 2014), the plaintiff defaulted in appearing for oral argument and moved reargue. The motion was denied on procedural grounds that itwas a motion to reargue rather than a motion to vacate pursuant to CPLR 5015(a). The parties then filed a stipulation to allow oral argument which was denied and the subsequent motion to vacate was denied. The Appellate Division reversed and remanded the action for oral argument to be heard. 22. Alternatively, in Matter of Rivera v. New York City Department of (ISt Sanitation, 142 A.D.3d 463, 36 N.Y.S.3d 464 Dept., 2016), the respondent missed the Article 78 Petition return date. The respondent moved 10 10 of 17 FILED: BRONX COUNTY CLERK 03/28/2019 10:11 PM INDEX NO. 21962/2015E NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 03/28/2019 to vacate the default pursuant to CPLR 5015. At oral argument on the motion to vacate, the respondent explained: At oral argument, respondents essentially conceded that, in this e-filed case, their office failed to regularly check its email and, as a result, was unaware of the motion court's order Respondents' that gave rise to the default. excuse was sufficiently particularized and there is no evidence of wilful or contumacious conduct on their part (see Reyes v New York City Hous. Auth., 236 AD2d 277, 279 [1st Dept 1997]). E, at 142 A.D.3d 464. 23. Accordingly, itis respectfully contended that the within application is being brought under the proper statute and that the failure to have the Court's email noted and forwarded to Jean Schreiner, Gus Fotopoulos or myself, was an inadvertent error and not willful or contumacious. 24. In its February 28, 2019 orders the Court held, inter alia, that "the judge arguments..." heard oral argument and considered the (Exhibit 1). 25. As set forth above Plaintiff's opposition papers, although timely served and efiled, may not have been considered or that they were not adequately represented without appearance by Plaintiff's counsel at Oral Argument. The undersigned takes full and personal responsibility for this inadvertent omission. 26. Respectfully, however, it issubmitted that in the interests of justice, the Court may now entertain Plaintiff's opposition notwithstanding a mistake in acknowledging the motion date set by the Court. Lui v. Arias, 287 A.D.2d 378, 731 N.Y.S.2d 615 (1st Dept. 2001). 11 11 of 17 FILED: BRONX COUNTY CLERK 03/28/2019 10:11 PM INDEX NO. 21962/2015E NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 03/28/2019 27. A party seeking to vacate a judgment of default pursuant to CPLR 5105(a)(1) must show a reasonable excuse for the default and the existence of a meritorious defense or cause of action. Toos v. Leagiadro International, 114 (1st A.D.3d 559, 980 N.Y.S.2d 448 Dept., 2014). Vacatur under this rule lies within the sound discretion of the trial court. Abel v. Estate of Collins, 73 (3rd A.D.3d 1423, 1424, 901 N.Y.S.2d 749 Dept., 2010). 28. There was no willfulness or intent with respect to the nonappearance at the Oral Argument and, as the opposition papers were timely served, there would be no prejudice to Defendants should the Court exercise its discretion in considering discussion of the opposition at Oral Argument. As such, Plaintiff submits that he has demonstrated a reasonable excuse for the default. 29. Moreover, itis respectfully submitted that Plaintiff has a meritorious cause of action as shown in his Affirmation in Opposition (Doc #191, 196). 30. Under these circumstances, Plaintiff should be relieved of the Court's Orders dated February 28, 2019 (Exhibit 1), and the case should be restored to the Court's calendar for Oral Argument. 31. Additionally, the Defendant's proposed judgment with Notice of Settlement (Exhibit 2) should not be entered. Point II: Plaintiff Should Be Granted Renewal And, Defendants' Upon Renewal Preclusion Motion Should Be Denied And The Case Restored To The Court's Calendar 32. CPLR 2221(e) provides as follows: 12 12 of 17 FILED: BRONX COUNTY CLERK 03/28/2019 10:11 PM INDEX NO. 21962/2015E NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 03/28/2019 R 2221. Motion affecting prior order. *************** (e) A motion for leave to renew: 1. shall be identified specifically as such; 2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and 3. shall contain reasonable justification for the failure to present such facts on the prior motion. facts" 33. It iswell settled that the "new requirement of CPLR 2221(e) is a flexible one, and that a court, in its discretion, may grant renewal upon facts known to the moving party at the time of the original motion. Doviak v (2nd Finkelstein & Partners. LLP, 90 A.D.3d 696, 700, 934 N.Y.S.2d 467 Dept., 2011); see, also, Cruz v Bronx Lebanon Hosp. Center, 73 A.D.3d 597, 598, 905 N.Y.S.2d 135 (1st Dept. 2010) (failure to appear at status conference); In re Estate of Menahem, 13 Misc.3d 1226[A](N.Y. Cty, Surr. 2006, p. 3). 34. A motion to renew may be grañted in the Court's discretion, in the interests ofjustice, even on facts that were known to the movant at the time of the original motion (Cruz v Bronx Lebanoñ Hosp. Center, supra, 73 A.D.3d at 598). "Indeed, 'even ifthe vigorous requirements for renewal are not met, such relief may stillbe properly granted so as not to defeat substantial fairness'" (Id.,quoting Garner v Latimer, 306 A.D.2d 209, 210 [1st Dept. 2003]). facts" 35. Regarding motion practice, "new could be the notarized portion of a chiropractor's affidavit inadvertently omitted. Defina v. Daniel, 140 A.D.3d 13 13 of 17 FILED: BRONX COUNTY CLERK 03/28/2019 10:11 PM INDEX NO. 21962/2015E NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 03/28/2019 825, 33 N.Y.S.3d 421 (2nd Dept., 2016). It could also be law office failure in improperly assembling and submitting the initial motion. Hackney v. Monge, 103 A.D.3d 844, 960 N.Y.S.2d 176 (2nd Dept., 2013). 36. Plaintiff respectfully requests that the Court consider the following facts, which either could not have been presented, or appear not to have been presented, within the context of the prior motion: a. Plaintiff's counsel had in place a calendar department which was dedicated to receiving and forwarding all incoming messages from NYSCEF. b. The email messages were to be forwarded to the attorney assigned to the file(the undersigned) and