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INDEX NO. 20551/2013E
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 09/24/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
xX
KALIMAR FELICIANO,
Index No. 20551/13E
Plaintiff,
AFFIRMATION IN
-against- OPPOSITION
ADEE REALTY, LLC
Defendant.
X
MEREDITH B. CASTELLI, an attorney duly admitted to practice law before the courts of the State
of New York, hereby affirms the following statements to be true under the penalties of perjury:
1 Jam associated with the law firm of RUBIN, FIORELLA & FRIEDMAN LLP, the attorney
for third-party defendant ADEE REALTY, LLC(hereinafter “ADEE”). As such and from
a review of the file maintained by this office, I am fully familiar with the facts and
circumstances of this matter.
This affirmation is submitted in opposition to plaintiff's motion for an Order pursuant to
CPLR §3025 to amend the Summons and Complaint to add Fieber Realty, LLC, Fieber
Realty Company and Fieber Maintenance & Management Company, Inc. in this matter.
Plaintiffs motion relies upon the deposition transcript of John Donofrio, who appeared on
behalf of the defendant. It should be noted for the court that plaintiff has yet to serve a copy
of said transcript on the defendant to be reviewed, verified and corrected, if necessary.
Defendant should be given the opportunity to review and correct, if necessary, its deposition
transcript, prior to the same being submitted to the court as a basis for amending pleadings.
To the extent that plaintiff is permitted to rely on the deposition transcript of John Donofrio
in its current form, plaintiff should discontinue the action against ADEE. As plaintiff points
out in the underlying motion, the testimony reflects that ADEE owns 808 Adee Avenue, and
the alleged incident occurred2500 Tratman Avenue. There is no evidence that ADEE
owned, operated, maintained or controlled the premises where the subject incident is alleged
to have occurred.
Pursuant to the Summons and Complaint and the proposed Amended Summons and
Complaint, the subject incident is alleged to have occurred on August 12, 2012.
Plaintiffs counsel has included, in support of the motion, the findings of an Acris Search
for the subject property. Despite that Acris Search and the testimony of Mr. Donofrio, upon
which plaintiff relies in making this motion, plaintiff alleges ADEE, along with each of the
proposed defendants, to be the owner of the subject premises.
Though, leave to amend a pleading may be freely granted by the court, the party seeking the
amendment must have a good faith basis in making the amendment and changing the
pleadings.
To the extent that plaintiff seeks to add parties other then that/those listed on the Acris
Search as the owner of the subject premises on the date of the occurrence, there is no good
faith basis to do so.
As such, it is requested that plaintiff's motion be denied insofar as it is seeking to keep a
party in the subject action despite relying on testimony and documentation showing no
relationship to the subject premises, and insofar as it seeks to alleges multiple “owners” of
the subject premises despite testimony and documentation plaintiff submits in support of
its own motion, which directly contradicts the allegations in the proposed Amended
Summons and Complaint.
Dated: September 23, 2014
New York, New York
Yours, etc.
RUBIN, FIORELLA & FRIEDMAN, LLP
By Wl 6. (dhe.
Meredith B. Castelli
Attorneys for Defendant
ADEE REALTY, LLC
630 Third Avenue, 3" Floor
New York, New York 10017
Telephone: (212) 953-2381
Our File No. 708-26997
TO: SCOTT A. FELICETTI, ESQ.
Attorney for Plaintiff
KALIMAR FELICIANO
557 Grand Concourse, Suite 159
Bronx, New York 10451
Telephone: (718) 301-8233
AFFIDAVIT OF SERVICE
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
JENICE CELEBRE, being duly sworn, deposes and says:
I am not a party to this action, am over 18 years of age and reside in Staten Island, New
York.
On September 23, 2014, I served a true and complete copy of the AFFIRMATION IN
OPPOSITION, upon
SCOTT A. FELICETTI, ESQ.
Attorney for Plaintiff
KALIMAR FELICIANO
557 Grand Concourse, Suite 159
Bronx, New York 10451
Telephone: (718) 301-8233
at the address designated by said attorney(s) for that purpose by delivering the same enclosed in a pre-paid
properly addressed wrapper, into the custody of an overnight delivery service (Federal Express) for next-day
delivery.
a oat
JENI CELEBRE
Sworn to before me this
23" day of September, 2014
Notaty Publ Scio
5 ot New Yorks
ese 214
Certificate hed nin Now York
Commission Expires. 28, 20,
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INDEX NO. 20551/2013E NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 09/24/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX xX KALIMAR FELICIANO, Index No. 20551/13E Plaintiff, AFFIRMATION IN -against- OPPOSITION ADEE REALTY, LLC Defendant. X MEREDITH B. CASTELLI, an attorney duly admitted to practice law before the courts of the State of New York, hereby affirms the following statements to be true under the penalties of perjury: 1 Jam associated with the law firm of RUBIN, FIORELLA & FRIEDMAN LLP, the attorney for third-party defendant ADEE REALTY, LLC(hereinafter “ADEE”). As such and from a review of the file maintained by this office, I am fully familiar with the facts and circumstances of this matter. This affirmation is submitted in opposition to plaintiff's motion for an Order pursuant to CPLR §3025 to amend the Summons and Complaint to add Fieber Realty, LLC, Fieber Realty Company and Fieber Maintenance & Management Company, Inc. in this matter. Plaintiffs motion relies upon the deposition transcript of John Donofrio, who appeared on behalf of the defendant. It should be noted for the court that plaintiff has yet to serve a copy of said transcript on the defendant to be reviewed, verified and corrected, if necessary. Defendant should be given the opportunity to review and correct, if necessary, its deposition transcript, prior to the same being submitted to the court as a basis for amending pleadings. To the extent that plaintiff is permitted to rely on the deposition transcript of John Donofrio in its current form, plaintiff should discontinue the action against ADEE. As plaintiff points out in the underlying motion, the testimony reflects that ADEE owns 808 Adee Avenue, and the alleged incident occurred2500 Tratman Avenue. There is no evidence that ADEE owned, operated, maintained or controlled the premises where the subject incident is alleged to have occurred. Pursuant to the Summons and Complaint and the proposed Amended Summons and Complaint, the subject incident is alleged to have occurred on August 12, 2012. Plaintiffs counsel has included, in support of the motion, the findings of an Acris Search for the subject property. Despite that Acris Search and the testimony of Mr. Donofrio, upon which plaintiff relies in making this motion, plaintiff alleges ADEE, along with each of the proposed defendants, to be the owner of the subject premises. Though, leave to amend a pleading may be freely granted by the court, the party seeking the amendment must have a good faith basis in making the amendment and changing the pleadings. To the extent that plaintiff seeks to add parties other then that/those listed on the Acris Search as the owner of the subject premises on the date of the occurrence, there is no good faith basis to do so. As such, it is requested that plaintiff's motion be denied insofar as it is seeking to keep a party in the subject action despite relying on testimony and documentation showing no relationship to the subject premises, and insofar as it seeks to alleges multiple “owners” of the subject premises despite testimony and documentation plaintiff submits in support of its own motion, which directly contradicts the allegations in the proposed Amended Summons and Complaint. Dated: September 23, 2014 New York, New York Yours, etc. RUBIN, FIORELLA & FRIEDMAN, LLP By Wl 6. (dhe. Meredith B. Castelli Attorneys for Defendant ADEE REALTY, LLC 630 Third Avenue, 3" Floor New York, New York 10017 Telephone: (212) 953-2381 Our File No. 708-26997 TO: SCOTT A. FELICETTI, ESQ. Attorney for Plaintiff KALIMAR FELICIANO 557 Grand Concourse, Suite 159 Bronx, New York 10451 Telephone: (718) 301-8233 AFFIDAVIT OF SERVICE STATE OF NEW YORK ) ) ss. COUNTY OF NEW YORK ) JENICE CELEBRE, being duly sworn, deposes and says: I am not a party to this action, am over 18 years of age and reside in Staten Island, New York. On September 23, 2014, I served a true and complete copy of the AFFIRMATION IN OPPOSITION, upon SCOTT A. FELICETTI, ESQ. Attorney for Plaintiff KALIMAR FELICIANO 557 Grand Concourse, Suite 159 Bronx, New York 10451 Telephone: (718) 301-8233 at the address designated by said attorney(s) for that purpose by delivering the same enclosed in a pre-paid properly addressed wrapper, into the custody of an overnight delivery service (Federal Express) for next-day delivery. a oat JENI CELEBRE Sworn to before me this 23" day of September, 2014 Notaty Publ Scio 5 ot New Yorks ese 214 Certificate hed nin Now York Commission Expires. 28, 20,