Preview
FILED: NEW YORK COUNTY CLERK 10/15/2018 10:04 AM INDEX NO. 151650/2014
NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 10/15/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
X
SHELLEY KARTEN and MARK KARTEN,
Index No.: 151650/14
AFFIRMATION IN
Plaintiff(s),
OPPOSITION
-against-
500-512 SEVENTH AVENUE LP, LLC., NEWMARK
GRUBB KNIGHT FRANK and NEW YORK, INC. and G&E
REAL ESTATE MANAGEMENT SERVICES, INC.,
Defendant(s).
______________________ ---X
LAWRENCE B. SAFTLER, ESQ., an attorney duly licensed to practice law before the
courts of the State of New York, affirms the following to be true under the penalty of perjury:
1. I am a partner with the law firm of SAFTLER & BACHER, PLLC, and I am fully
familiar with the facts and circumstances of the within opposition.
2. I submit the affirmation in opposition to the motion 500-
following by defendant,
512 SEVENTH AVENUE LP, LLC, for summary judgement on the issue of liability.
3. At the outset, the defendant 500-512 SEVENTH AVE LP, LLC (hereinafter
referred to as 500) had wholly failed to apprise this court that they were precluded by court order
from producing evidence on liability. See Exhibit 1, status conference order of J. Manuel
Mendez wherein it states, "500-519 is precluded from producing evidence on liability at trial".
While this is summary judgment motion, itcertainly takes the place of a trial,which they are
attempting to preclude plaintiff from having. Therefore, this defendant should be sanctioned for
the bringing of this motion, for itwell knew and failed to include in itsmotion paper work the
procedural history of this case, and specifically the status conference order of this court
1 of 3
FILED: NEW YORK COUNTY CLERK 10/15/2018 10:04 AM INDEX NO. 151650/2014
NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 10/15/2018
precluding 500-519 from producing evidence on liability at trialin an order dated October 1,
2017.
4. Further to this point, itwas ruled that defendant 500 would be precluded because
its'
of repeated failures to produce a witness pursuant to court orders of which there were many,
but notably the prior order of the court of 7/19/17, attached as Exhibit 2. The prior court orders,
also omitted from the defendant's procedural history, are attached hereto as Exhibit 3.
5. As the court should take judicial notice of itsown order, the preclusion of 500 is
clear, and the fact that this is not a trial but a summary judgement motion, should have no impact
on their preclusion. Further to that point, while defendant's attorney argues that 500-519
produced a witness, the witness they produced was only a witness from NEWMARK GRUBB
KNIGHT FRANK who was not precluded. See Exhibit 1
its'
6. Further, assuming the court overlooks own preclusion order, the defendant
its'
500 fails in burden of proof, since they essentially argue that the exception to the
administrative code as it pertains to utility gratings applies to this matter, alleviating their clear
responsibility as the adjoining landowner pursuant to the administrative code. However, they
defendant fails to prove in any way, manner, or respect in itsability to show that the plaintiff fell
within the 12 inch limit surrounding the perimeter of the grading. Therefore, the administrative
code 7-120 stillapplies, or at the very least presents a question of fact, and since 500 is the
admitted owner of the premises, itremained their responsibility to maintain the sidewalks around
the perimeter of their building under said law.
7. For all of the reasons set forth herein, this motion should be denied in its entirety.
WHEREFORE, itis respectfully requested that the court deny the motion by Defendants
and for such other and further relief as the court may deem just, proper and equitable, including
2 of 3
FILED: NEW YORK COUNTY CLERK 10/15/2018 10:04 AM INDEX NO. 151650/2014
NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 10/15/2018
the imposition of sanctions and costs for bringing a spurious motion for which they knew they
were already precluded.
Dated: New York, NY
October 15, 2018
Yours, etc.
SAFTLER & BACHER, PLLC
Attorneys for plaintiff(s)
By:
Lawrence B. a ler,Esq.
275 Madison Ave., Suite 2005
New York, NY 10016
646.865.0797/646.865.0801
TO:
WEISER & MCCARTHY
Attorneys for defendant(s)
500-512 SEVENTH AVENUE LP, LLC. and NEWMARK GRUBB KNIGHT FRANK
17 State Street, 8th Floor
New York, NY 10004
(212) 943-8940
File No.: 15-00290419 BRS
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.
Attorney for Defendant/Third-Party Plaintiff
4 Irvington Place, Room 1800
New York, NY 10003
(212) 460-3355
LAW OFFICE OF VIRGINIA E. MCDONALD
Attorneys for Third-Party Defendant
NAMOW, INC.
13th
One Whitehall Street, FlOOr
New York, NY 10004
(212) 248-9100
3 of 3
Preview
FILED: NEW YORK COUNTY CLERK 10/15/2018 10:04 AM INDEX NO. 151650/2014 NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 10/15/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X SHELLEY KARTEN and MARK KARTEN, Index No.: 151650/14 AFFIRMATION IN Plaintiff(s), OPPOSITION -against- 500-512 SEVENTH AVENUE LP, LLC., NEWMARK GRUBB KNIGHT FRANK and NEW YORK, INC. and G&E REAL ESTATE MANAGEMENT SERVICES, INC., Defendant(s). ______________________ ---X LAWRENCE B. SAFTLER, ESQ., an attorney duly licensed to practice law before the courts of the State of New York, affirms the following to be true under the penalty of perjury: 1. I am a partner with the law firm of SAFTLER & BACHER, PLLC, and I am fully familiar with the facts and circumstances of the within opposition. 2. I submit the affirmation in opposition to the motion 500- following by defendant, 512 SEVENTH AVENUE LP, LLC, for summary judgement on the issue of liability. 3. At the outset, the defendant 500-512 SEVENTH AVE LP, LLC (hereinafter referred to as 500) had wholly failed to apprise this court that they were precluded by court order from producing evidence on liability. See Exhibit 1, status conference order of J. Manuel Mendez wherein it states, "500-519 is precluded from producing evidence on liability at trial". While this is summary judgment motion, itcertainly takes the place of a trial,which they are attempting to preclude plaintiff from having. Therefore, this defendant should be sanctioned for the bringing of this motion, for itwell knew and failed to include in itsmotion paper work the procedural history of this case, and specifically the status conference order of this court 1 of 3 FILED: NEW YORK COUNTY CLERK 10/15/2018 10:04 AM INDEX NO. 151650/2014 NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 10/15/2018 precluding 500-519 from producing evidence on liability at trialin an order dated October 1, 2017. 4. Further to this point, itwas ruled that defendant 500 would be precluded because its' of repeated failures to produce a witness pursuant to court orders of which there were many, but notably the prior order of the court of 7/19/17, attached as Exhibit 2. The prior court orders, also omitted from the defendant's procedural history, are attached hereto as Exhibit 3. 5. As the court should take judicial notice of itsown order, the preclusion of 500 is clear, and the fact that this is not a trial but a summary judgement motion, should have no impact on their preclusion. Further to that point, while defendant's attorney argues that 500-519 produced a witness, the witness they produced was only a witness from NEWMARK GRUBB KNIGHT FRANK who was not precluded. See Exhibit 1 its' 6. Further, assuming the court overlooks own preclusion order, the defendant its' 500 fails in burden of proof, since they essentially argue that the exception to the administrative code as it pertains to utility gratings applies to this matter, alleviating their clear responsibility as the adjoining landowner pursuant to the administrative code. However, they defendant fails to prove in any way, manner, or respect in itsability to show that the plaintiff fell within the 12 inch limit surrounding the perimeter of the grading. Therefore, the administrative code 7-120 stillapplies, or at the very least presents a question of fact, and since 500 is the admitted owner of the premises, itremained their responsibility to maintain the sidewalks around the perimeter of their building under said law. 7. For all of the reasons set forth herein, this motion should be denied in its entirety. WHEREFORE, itis respectfully requested that the court deny the motion by Defendants and for such other and further relief as the court may deem just, proper and equitable, including 2 of 3 FILED: NEW YORK COUNTY CLERK 10/15/2018 10:04 AM INDEX NO. 151650/2014 NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 10/15/2018 the imposition of sanctions and costs for bringing a spurious motion for which they knew they were already precluded. Dated: New York, NY October 15, 2018 Yours, etc. SAFTLER & BACHER, PLLC Attorneys for plaintiff(s) By: Lawrence B. a ler,Esq. 275 Madison Ave., Suite 2005 New York, NY 10016 646.865.0797/646.865.0801 TO: WEISER & MCCARTHY Attorneys for defendant(s) 500-512 SEVENTH AVENUE LP, LLC. and NEWMARK GRUBB KNIGHT FRANK 17 State Street, 8th Floor New York, NY 10004 (212) 943-8940 File No.: 15-00290419 BRS CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. Attorney for Defendant/Third-Party Plaintiff 4 Irvington Place, Room 1800 New York, NY 10003 (212) 460-3355 LAW OFFICE OF VIRGINIA E. MCDONALD Attorneys for Third-Party Defendant NAMOW, INC. 13th One Whitehall Street, FlOOr New York, NY 10004 (212) 248-9100 3 of 3