Preview
(FILED: SUFFOLK COUNTY CLERK 0972272015 09:50 AM INDEX NO. 037287/2012
NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 09/22/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK Index No. 037287/12
wenn ene ne cence ene ee ee
MICHAEL PERKOWSKI,
Attorney’s Reply Affirmation
Plaintiff,
-against-
SAINT ANTHONY’S HIGH SCHOOL,
BRENDAN ROSE, RICHARD ROSE and
PATRICE ROSE,
Defendants.
meee ce en een n enna nem en nn eenemennenenene,
Amy B. Korcz, an attorney duly admitted to practice law before Courts of the State of
New York hereby affirms the following under the penalties of perjury:
1 lam a member of the firm of Schondebare & Korcz, attorneys for the defendant
Patrice Rose herein.
2 This Affirmation is submitted in Reply to plaintiff's Opposition and in further
support of this Motion to Dismiss the Complaint in its entirety pursuant to CPLR Section
3211(a)(7) and 3212 with prejudice on the grounds that plaintiff has failed to state a legally
cognizable cause of action against the moving defendant and further that the defendant has
established prima facie that she is not liable to plaintiff as a matter of law.
3 Mr. Nemerov, in his Affirmation in Opposition argues that the defendants have
not been produced for depositions, in violation of the Court's Order. It should be noted that
plaintiff himself was not produced for a deposition until June 30, 2015 - in violation of this
Court's Order. Regardless of that fact, however, it is respectfully submitted that defendant
Patrice Rose has sustained her burden of establishing her freedom from liability as a matter of
law. As was stated in her affidavit, she was not the custodial parent of defendant Brendan Rose,
was not in a position to either control or warn about any violent behavior toward the plaintiff on
the day of the alleged incident nor was she aware of any violent or vicious propensities. In Mr.
Nemerov's Affirmation he states that "it does not preclude the possibility that she does in fact
know of prior violent acts committed by her son and yet still considers him not to have a violent
nature" is devoid of any case law to support this novel theory of liability.
4. To the extent that plaintiff must come forward with some evidence in admissible
form to oppose this motion, it is submitted that the hearsay allegations of plaintiff's mother that
she heard someone tell her that Brendan Rose had been involved in prior fights is clearly
inadmissible hearsay and cannot be relied upon as a basis for denying the instant motion.
Additionally as was argued in the Attorney's Affirmation in Support previously submitted herein,
the courts have held that a child’s prior bad acts do not establish a “vicious propensity toward
violent acts”. In Rivers v. Murray 29 A.D.3d 884; 815 N.Y.S.2d 708 (2d Dep’t 2006).
5 It is respectfully submitted that defendant Patrice Rose has established her prima
facie entitlement to summary judgment based upon her sworn Affidavit and that additional
discovery in the form of depositions is not necessary for a decision on this motion. However, in
the unlikely event that this court finds that additional discovery is warranted, it is respectfully
requested that the motion be denied without prejudice and with leave to renew upon the
completion of any discovery this court deems proper.
6. Based on the foregoing, it is respectfully submitted that defendant has established
her prima facie entitlement to summary judgment and that the Complaint and all Cross-Claims
against her should be dismissed in its entirety.
Wherefore, it is respectfully requested that this Court grant the instant Motion for
Summary Judgment on the issue of liability dismissing the Complaint in its entirety and all
cross-claims for such other and further relief as to this court seems just and proper.
Dated: September 18, 2015
Ronkonkoma, New York
Yours etc., 9
Amy B. Korc#. Esq.
Schondebare Korez, P.C.
Attorneys for Defendant Patrice Rose
3555 Veterans Memorial Highway
Suite P
Ronkonkoma, NY 11779
631-580-3400
To:
SEGAN, NEMEROV & SINGER, PC /
Attorneys for Plaintiff
112 Madison Avenue
New York, New York 10015
212-696-9100
BIEDERMANN, HOEING, SEMPREVIVO ¥
Attorneys for St. Anthony’s High School
60 East 42" Street, Suite 660
New York, New York 10165
646-218-7560
PETROCELLI & CHRISTY
Attorneys for Brendan and Richard Rose
170 Old County Road, Suite 611
Mineola, New York 11501
516-746-4000
File # 6405-
Affidavit of Service
State of New York)
County of Suffolk )
CHRISTINE LESSARD, being duly sworn, deposes and says:
That I am not a party to the action, that I am over 18 years of age, that on September Ad
2015, I personally deposited true copies thereof enclosed in a post-paid wrapper, in an official
receptacle of the United States Postal Service the attached ATTORNEY AFFIRMATION by
E-FILE:
SEGAN, NEMEROV & SINGER, PC
112 Madison Avenue
New York, New York 10015
BIEDERMANN, HOEING, SEMPREVIVO
60 East 42" Street, Suite 660
New York, New York 10165
PETROCELLI & CHRISTY
170 Old Cor oad, Suite 611
Mineola, work 11501
Christ ie Lessard
ob
Ss orn to before me on this
4 day of September, 2015
a
AMY B. KORCZ
Notary Public
Suffolk County, New York
02K04992983
Commission expires 3/9/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK Index No. 037287/12
men ee nnn nnen nn nennnnmnnnenenneneneneneneenemenene
MICHAEL PERKOWSKI,
Plaintiff,
-against-
SAINT ANTHONY’S HIGH SCHOOL,
BRENDAN ROSE, RICHARD ROSE and
PATRICE ROSE,
Defendants.
wenn nena nce een ene en ee nenen nen
ATTORNEY AFFIRMATION
Schondebare & Korcz, P.C.
Attorneys for Defendant Patrice Rose
3555 Veterans Memorial Highway
Suite P
Ronkonkoma, NY 11779
631-580-3400
Preview
(FILED: SUFFOLK COUNTY CLERK 0972272015 09:50 AM INDEX NO. 037287/2012 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 09/22/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK Index No. 037287/12 wenn ene ne cence ene ee ee MICHAEL PERKOWSKI, Attorney’s Reply Affirmation Plaintiff, -against- SAINT ANTHONY’S HIGH SCHOOL, BRENDAN ROSE, RICHARD ROSE and PATRICE ROSE, Defendants. meee ce en een n enna nem en nn eenemennenenene, Amy B. Korcz, an attorney duly admitted to practice law before Courts of the State of New York hereby affirms the following under the penalties of perjury: 1 lam a member of the firm of Schondebare & Korcz, attorneys for the defendant Patrice Rose herein. 2 This Affirmation is submitted in Reply to plaintiff's Opposition and in further support of this Motion to Dismiss the Complaint in its entirety pursuant to CPLR Section 3211(a)(7) and 3212 with prejudice on the grounds that plaintiff has failed to state a legally cognizable cause of action against the moving defendant and further that the defendant has established prima facie that she is not liable to plaintiff as a matter of law. 3 Mr. Nemerov, in his Affirmation in Opposition argues that the defendants have not been produced for depositions, in violation of the Court's Order. It should be noted that plaintiff himself was not produced for a deposition until June 30, 2015 - in violation of this Court's Order. Regardless of that fact, however, it is respectfully submitted that defendant Patrice Rose has sustained her burden of establishing her freedom from liability as a matter of law. As was stated in her affidavit, she was not the custodial parent of defendant Brendan Rose, was not in a position to either control or warn about any violent behavior toward the plaintiff on the day of the alleged incident nor was she aware of any violent or vicious propensities. In Mr. Nemerov's Affirmation he states that "it does not preclude the possibility that she does in fact know of prior violent acts committed by her son and yet still considers him not to have a violent nature" is devoid of any case law to support this novel theory of liability. 4. To the extent that plaintiff must come forward with some evidence in admissible form to oppose this motion, it is submitted that the hearsay allegations of plaintiff's mother that she heard someone tell her that Brendan Rose had been involved in prior fights is clearly inadmissible hearsay and cannot be relied upon as a basis for denying the instant motion. Additionally as was argued in the Attorney's Affirmation in Support previously submitted herein, the courts have held that a child’s prior bad acts do not establish a “vicious propensity toward violent acts”. In Rivers v. Murray 29 A.D.3d 884; 815 N.Y.S.2d 708 (2d Dep’t 2006). 5 It is respectfully submitted that defendant Patrice Rose has established her prima facie entitlement to summary judgment based upon her sworn Affidavit and that additional discovery in the form of depositions is not necessary for a decision on this motion. However, in the unlikely event that this court finds that additional discovery is warranted, it is respectfully requested that the motion be denied without prejudice and with leave to renew upon the completion of any discovery this court deems proper. 6. Based on the foregoing, it is respectfully submitted that defendant has established her prima facie entitlement to summary judgment and that the Complaint and all Cross-Claims against her should be dismissed in its entirety. Wherefore, it is respectfully requested that this Court grant the instant Motion for Summary Judgment on the issue of liability dismissing the Complaint in its entirety and all cross-claims for such other and further relief as to this court seems just and proper. Dated: September 18, 2015 Ronkonkoma, New York Yours etc., 9 Amy B. Korc#. Esq. Schondebare Korez, P.C. Attorneys for Defendant Patrice Rose 3555 Veterans Memorial Highway Suite P Ronkonkoma, NY 11779 631-580-3400 To: SEGAN, NEMEROV & SINGER, PC / Attorneys for Plaintiff 112 Madison Avenue New York, New York 10015 212-696-9100 BIEDERMANN, HOEING, SEMPREVIVO ¥ Attorneys for St. Anthony’s High School 60 East 42" Street, Suite 660 New York, New York 10165 646-218-7560 PETROCELLI & CHRISTY Attorneys for Brendan and Richard Rose 170 Old County Road, Suite 611 Mineola, New York 11501 516-746-4000 File # 6405- Affidavit of Service State of New York) County of Suffolk ) CHRISTINE LESSARD, being duly sworn, deposes and says: That I am not a party to the action, that I am over 18 years of age, that on September Ad 2015, I personally deposited true copies thereof enclosed in a post-paid wrapper, in an official receptacle of the United States Postal Service the attached ATTORNEY AFFIRMATION by E-FILE: SEGAN, NEMEROV & SINGER, PC 112 Madison Avenue New York, New York 10015 BIEDERMANN, HOEING, SEMPREVIVO 60 East 42" Street, Suite 660 New York, New York 10165 PETROCELLI & CHRISTY 170 Old Cor oad, Suite 611 Mineola, work 11501 Christ ie Lessard ob Ss orn to before me on this 4 day of September, 2015 a AMY B. KORCZ Notary Public Suffolk County, New York 02K04992983 Commission expires 3/9/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK Index No. 037287/12 men ee nnn nnen nn nennnnmnnnenenneneneneneneenemenene MICHAEL PERKOWSKI, Plaintiff, -against- SAINT ANTHONY’S HIGH SCHOOL, BRENDAN ROSE, RICHARD ROSE and PATRICE ROSE, Defendants. wenn nena nce een ene en ee nenen nen ATTORNEY AFFIRMATION Schondebare & Korcz, P.C. Attorneys for Defendant Patrice Rose 3555 Veterans Memorial Highway Suite P Ronkonkoma, NY 11779 631-580-3400