On February 25, 2014 a
Motion-Secondary
was filed
involving a dispute between
Mark Karten,
Shelley Karten,
and
500-512 Seventh Avenue Lp, Llc.,,
Consolidated Edison Company Of New York, Inc.,
G&E Real Estate Management Services, Inc,
Gibraltar Contracting, Inc,
Newmark Grubb Knight Frank,
for Tort
in the District Court of New York County.
Preview
FILED: NEW YORK COUNTY CLERK 09/24/2018 04:41 PM INDEX NO. 151650/2014
NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 09/24/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--- ------------------ --X
SHELLEY KARTEN, and MARK KARTEN, Index: 151650/2014
Plaintiff, REPLY AFFIRMATION
-against-
500-512 SEVENTH AVENUE LP, LLC., NEWMARK
GRUBB KNIGHT FRANK, CONSOLIDATED EDISON
COMPANY OF NEW YORK, INC., GIBRALTAR
CONTRACTING, INC. and G&E REAL ESTATE
MANAGEMENT SERVICES, INC.
Defendants.
__________________....------------------ .-------- ---X
CONSOLIDATED EDISON COMPANY OF NEW YORK, Index: 595637/2015
INC.,
Plaintiff,
-against-
NAMOW, INC.,
Defendant.
------------------ --------------------- ----------------X
AMY A. PERRY, an attorney duly admitted to practice law in the Courts of the State of
New York, under penalties of perjury, affirms as follows:
1. I am asseeisted with the LAW OFFICE OF VIRGINIA E. McDONALD,
attomeys for third-party defendant NAMOW, INC. ("Namow"), and as such I am fully familiar
with the facts and circumstances surrounding this action.
2. I submit this affirmation in reply to CONSOLIDATED EDISON COMPANY OF
NEW YORK, INC.'s ("Con Ed") affirmation in opposition, and in further support of Namow's
Motion for Summary Judgment.
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FILED: NEW YORK COUNTY CLERK 09/24/2018 04:41 PM INDEX NO. 151650/2014
NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 09/24/2018
3. Con Ed contends that Namow has not made out a prima facie case because
Namow has not stated when Con Ed informed Namow to perform the restoration work, when
Namow performed its site inspection, and how much time passed between those two events.
4. Attached to Namow's underlying Motion for Summary Judgment as Exhibit E, is
the Blanket Purchase Agreement entered into by Con Ed and Namow. This document was
created by Con Ed, as is evidenced by its letterhead. It clearly states an Effective Start Date of
8/15/2011. See underlying Exhibit "E".
5. In any event, Con Ed's contention is irrelevant. The date on which Namow
performed its siteinspection does not chañge the undisputed fact that Namow was unable to
perform any work at the loss location.
6. After Namow informed Con Ed of the scaffolding that was present, Con Ed
provided no instructions on how Namow should proceed-therefore, Namow took no further
action.
7. Third-Party Plaintiff Con Ed has offered no evidence to support that Namow was
negligent in failing to perform contract work in the area of the subject occurrence.
8. Con Ed may not sustain its claims of negligence against Namow for an alleged
breach of itsduties under the Blanket Purchase Agreement as the admissible evidence
demonstrates that itwas impossible for Namow to perform itscontract duties at the subject site,
as the existence of a scaffold above the sidewalk where itwas retained to perform sidewalk
restoration work prevented such work from being undertaken.
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FILED: NEW YORK COUNTY CLERK 09/24/2018 04:41 PM INDEX NO. 151650/2014
NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 09/24/2018
WHEREFORE, itis respectfully requested that this Honorable Court grant summary
judgment in favor of Namow and grant such other and further relief as this Court deems just and
proper.
Dated: New York, New York
September 24, 2018
Yours, etc.
LAW OFFICE OF
VIRGINIA E. McDONALD
Attorneys for Third-Party Defendant
NAMOW, INC.
- 13th
One Whitehall Street FlOOr
New York, NY 10004-2109
Phone: (212) 248-9100
By:
Y A. PERRY
3 of 3
Document Filed Date
September 24, 2018
Case Filing Date
February 25, 2014
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FILED: NEW YORK COUNTY CLERK 09/24/2018 04:41 PM INDEX NO. 151650/2014 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 09/24/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --- ------------------ --X SHELLEY KARTEN, and MARK KARTEN, Index: 151650/2014 Plaintiff, REPLY AFFIRMATION -against- 500-512 SEVENTH AVENUE LP, LLC., NEWMARK GRUBB KNIGHT FRANK, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., GIBRALTAR CONTRACTING, INC. and G&E REAL ESTATE MANAGEMENT SERVICES, INC. Defendants. __________________....------------------ .-------- ---X CONSOLIDATED EDISON COMPANY OF NEW YORK, Index: 595637/2015 INC., Plaintiff, -against- NAMOW, INC., Defendant. ------------------ --------------------- ----------------X AMY A. PERRY, an attorney duly admitted to practice law in the Courts of the State of New York, under penalties of perjury, affirms as follows: 1. I am asseeisted with the LAW OFFICE OF VIRGINIA E. McDONALD, attomeys for third-party defendant NAMOW, INC. ("Namow"), and as such I am fully familiar with the facts and circumstances surrounding this action. 2. I submit this affirmation in reply to CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.'s ("Con Ed") affirmation in opposition, and in further support of Namow's Motion for Summary Judgment. 1 of 3 FILED: NEW YORK COUNTY CLERK 09/24/2018 04:41 PM INDEX NO. 151650/2014 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 09/24/2018 3. Con Ed contends that Namow has not made out a prima facie case because Namow has not stated when Con Ed informed Namow to perform the restoration work, when Namow performed its site inspection, and how much time passed between those two events. 4. Attached to Namow's underlying Motion for Summary Judgment as Exhibit E, is the Blanket Purchase Agreement entered into by Con Ed and Namow. This document was created by Con Ed, as is evidenced by its letterhead. It clearly states an Effective Start Date of 8/15/2011. See underlying Exhibit "E". 5. In any event, Con Ed's contention is irrelevant. The date on which Namow performed its siteinspection does not chañge the undisputed fact that Namow was unable to perform any work at the loss location. 6. After Namow informed Con Ed of the scaffolding that was present, Con Ed provided no instructions on how Namow should proceed-therefore, Namow took no further action. 7. Third-Party Plaintiff Con Ed has offered no evidence to support that Namow was negligent in failing to perform contract work in the area of the subject occurrence. 8. Con Ed may not sustain its claims of negligence against Namow for an alleged breach of itsduties under the Blanket Purchase Agreement as the admissible evidence demonstrates that itwas impossible for Namow to perform itscontract duties at the subject site, as the existence of a scaffold above the sidewalk where itwas retained to perform sidewalk restoration work prevented such work from being undertaken. 2 of 3 FILED: NEW YORK COUNTY CLERK 09/24/2018 04:41 PM INDEX NO. 151650/2014 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 09/24/2018 WHEREFORE, itis respectfully requested that this Honorable Court grant summary judgment in favor of Namow and grant such other and further relief as this Court deems just and proper. Dated: New York, New York September 24, 2018 Yours, etc. LAW OFFICE OF VIRGINIA E. McDONALD Attorneys for Third-Party Defendant NAMOW, INC. - 13th One Whitehall Street FlOOr New York, NY 10004-2109 Phone: (212) 248-9100 By: Y A. PERRY 3 of 3