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INDEX NO. 600285/2013
NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 03/03/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
wee e een nen e n nn anne enna nena nnn nee enn XK
JASON GRAHAM
AFFIRMATION
Plaintiff, EIN OPPOSITION
Index No. 600285/2013
-against-
Hon. John M. Galasso, J.8.C.
T-MOBILE USA, iNC., and ELIAS PROPERTIES
FLATBUSH, LLC, Third-Party Index No.
Defendants.
wenn nee ene e eee en en nee nen e nen en eee meena nnn nnnnnnnennee
T-MOBILE USA, INC.,
Third-Party Plaintiff,
-against-
LIAS PROPERTIES FLATBUSH, LLC,
Third-Party Defendant
manent X
een en mene nneee ene e ne nee nnnen en nenenne nnn nn na nenenennnnnnnn,
DANIEL Y. SOHNEN, an attorney duly admitted to practice law before the Courts of the
State of New York, affirms the truth of the following under the penalties of perjury and pursuant
to CPLR 2106:
1 I am a member of the firm of Smith Mazure Director Wilkins Young &
Yagerman, P.C., attorney for Dcfendant/Third-Party Plaintiff T-Mobile USA, Inc. herein and f
am fully familiar with the facts and circumstances surrounding the instant action. 1 make this
affirmation in opposition to the motion of defendant Elias Properties Flatbush, LLC for an order
pursuant to CPLR §3212 seeking summary judgment in favor of defendant, Elias Properties
Flatbush, LLC, in the form of contractual indemnification along with attorneys’ fecs as against
co-defendant, T-Mobile USA, inc. and for such other and further relief as to the Court may seem
just and proper, together with c s of this motion.
22. Co-defendant’s motion for summary judgment on the cross-claims must be denied
in its entirety as the co-defendant is not entitled to contractual indemnification pursuant to the
lease agreement, co-defendant’s motion fails to demonstrate prima facie entitlement to judgment
as a matter of law and co-defendant’s motion fails to authenticate the lease agreement relied
upon and takes deposition testimony out of context to support their legal arguments which, when
taken with all the admissible evidence and testimony does not support their arguments.
3 The co-defendant, Elias Properties Flatbush, LLC submits a copy of the lease
agreement before the court as evidence to support their cross-claims for contractual
indemnification. The co-defendant does not provide the Court with any swom affidavit or
deposition testimony which authenticates the lease agreement. Instead, counsel quotes to various
portions of the lease agreement and seeks to use the testimony of a T-Mobile USA, Inc.
employee with no knowledge of the lease terms to demonstrate entitlement to contractual
indemnification.
4 Additionally, even if the Court would view the terms of the lease to impose a
duty on the tenant to repair the parking, which is not conceded by moving defendant, the other
terms in the lease enable the landlord to retain control of the parking lot and require the landlord
to make structural repairs. The structural repair term is not defined in the lease and the duty to
repair clause is also not defined, co-defendant cannot demonstrate that T-Mobile had a duty to
repair the parking lot.
25 The lease agreement requires the landlord to make structural repairs. To the extent
that the plaintif{’s allegations of an alleged defect exist in regards to the drain cover, such a
condition would be the responsibility under the lease agreement of the landlord to repair.
Pursuant to the Iease terms the “Landlord shall maintain control over the Exterior Area” which is
defined as including the parking lot. Therefore, co-defendant cannot argue to the Court that they
were an out of possession landlord that placed all duties with regard to the parking lot in the
hands of T-Mobile USA, Inc.
WHEREIORE, it is respectfully requested that the Court deny the instant motion in its
entirety and grant such other and further relief as to the Court may seem just, proper, and
equitable.
Dated: New York, New York
February 25, 2015
DANIE OHNEN
TMO-001 04/559
STATE OF NEW YORK, COUNTY OF NEW YORK ss.:
AFFIDAVIT OF SERVICE BY ELECTRONIC FILING
Natasha Rampaul, bcing duly sworn, depases and says that deponent is employed
by Smith Mazure Director Wilkins Young & Yagerman, P.C., the attorney for Defendant/Third-
Party Plaintiff ‘l-Mobile USA, Inc., is over the age of eighteen, is not a party to this action, and
resides at Elizabeth, NJ.
On March 3, 2015, deponent served the within Affirmation in Opposition upon:
ALL PARTIES AS APPEARING ON THE SUPREME COURT, STATE OF NEW YORK
ELECTRONIC FILING WEBSITE.
Sworn to before me
March 3, 2015
Yd)
Ne
LLO
a
Commissioner of Decds
City of New York - No. 5-1480
Qualified in Richmond County
Commission Expires: June 1, 2015
DYS/nxr
YMOQ-00104/175
ose
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY
/ OF NASSAU
JASON GRAHAM,
Praintiff, INDEX NO. 600285/2013
-against-
T-MOBILE USA, INC., and ELIAS PROPERTIES FLATBUSH, LLC,
Defendants.
T-MOBILE USA, INC,
Third-Party Plaintiff,
-against-
ELIAS PROPERTIES FLATBUSH, LLC,
Third-Party Defendant.
aK
ono —_
AFFIRMATION IN OPPOSITI iON
SMITH MAZURE DIRECTOR WILKINS YOUNG & YAGERMAN, P.C.
Attorneys for Defendant/Third-Party Plaintiff
T-Mobile USA, inc.
111 John Street
New York, NY 10038
(212) 964-7400
TMO-00104
ssn vo
CERTIFICATION PURSUANT TO 22 N.Y.C.R.R. §130-1.4a
Daniel Y. Sohnen hereby certifies that, pursuant to 22 N.Y.C.R.R. §130-1.1a, the f irrgation pposition is not frivolous
nor frivotously presented.
Dated: New York, New York sohfien
February 25, 2015
cr
PLEASE TAKE NOTICE
O that the within is a tue copy of a entered in the office of the clerk of the within named Court on
that a of which the within is a true copy wil! be presented for settlement to the Hon. one of the judges of the
within named Court at On at 9:30 a.m.
159
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INDEX NO. 600285/2013 NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 03/03/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU wee e een nen e n nn anne enna nena nnn nee enn XK JASON GRAHAM AFFIRMATION Plaintiff, EIN OPPOSITION Index No. 600285/2013 -against- Hon. John M. Galasso, J.8.C. T-MOBILE USA, iNC., and ELIAS PROPERTIES FLATBUSH, LLC, Third-Party Index No. Defendants. wenn nee ene e eee en en nee nen e nen en eee meena nnn nnnnnnnennee T-MOBILE USA, INC., Third-Party Plaintiff, -against- LIAS PROPERTIES FLATBUSH, LLC, Third-Party Defendant manent X een en mene nneee ene e ne nee nnnen en nenenne nnn nn na nenenennnnnnnn, DANIEL Y. SOHNEN, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the truth of the following under the penalties of perjury and pursuant to CPLR 2106: 1 I am a member of the firm of Smith Mazure Director Wilkins Young & Yagerman, P.C., attorney for Dcfendant/Third-Party Plaintiff T-Mobile USA, Inc. herein and f am fully familiar with the facts and circumstances surrounding the instant action. 1 make this affirmation in opposition to the motion of defendant Elias Properties Flatbush, LLC for an order pursuant to CPLR §3212 seeking summary judgment in favor of defendant, Elias Properties Flatbush, LLC, in the form of contractual indemnification along with attorneys’ fecs as against co-defendant, T-Mobile USA, inc. and for such other and further relief as to the Court may seem just and proper, together with c s of this motion. 22. Co-defendant’s motion for summary judgment on the cross-claims must be denied in its entirety as the co-defendant is not entitled to contractual indemnification pursuant to the lease agreement, co-defendant’s motion fails to demonstrate prima facie entitlement to judgment as a matter of law and co-defendant’s motion fails to authenticate the lease agreement relied upon and takes deposition testimony out of context to support their legal arguments which, when taken with all the admissible evidence and testimony does not support their arguments. 3 The co-defendant, Elias Properties Flatbush, LLC submits a copy of the lease agreement before the court as evidence to support their cross-claims for contractual indemnification. The co-defendant does not provide the Court with any swom affidavit or deposition testimony which authenticates the lease agreement. Instead, counsel quotes to various portions of the lease agreement and seeks to use the testimony of a T-Mobile USA, Inc. employee with no knowledge of the lease terms to demonstrate entitlement to contractual indemnification. 4 Additionally, even if the Court would view the terms of the lease to impose a duty on the tenant to repair the parking, which is not conceded by moving defendant, the other terms in the lease enable the landlord to retain control of the parking lot and require the landlord to make structural repairs. The structural repair term is not defined in the lease and the duty to repair clause is also not defined, co-defendant cannot demonstrate that T-Mobile had a duty to repair the parking lot. 25 The lease agreement requires the landlord to make structural repairs. To the extent that the plaintif{’s allegations of an alleged defect exist in regards to the drain cover, such a condition would be the responsibility under the lease agreement of the landlord to repair. Pursuant to the Iease terms the “Landlord shall maintain control over the Exterior Area” which is defined as including the parking lot. Therefore, co-defendant cannot argue to the Court that they were an out of possession landlord that placed all duties with regard to the parking lot in the hands of T-Mobile USA, Inc. WHEREIORE, it is respectfully requested that the Court deny the instant motion in its entirety and grant such other and further relief as to the Court may seem just, proper, and equitable. Dated: New York, New York February 25, 2015 DANIE OHNEN TMO-001 04/559 STATE OF NEW YORK, COUNTY OF NEW YORK ss.: AFFIDAVIT OF SERVICE BY ELECTRONIC FILING Natasha Rampaul, bcing duly sworn, depases and says that deponent is employed by Smith Mazure Director Wilkins Young & Yagerman, P.C., the attorney for Defendant/Third- Party Plaintiff ‘l-Mobile USA, Inc., is over the age of eighteen, is not a party to this action, and resides at Elizabeth, NJ. On March 3, 2015, deponent served the within Affirmation in Opposition upon: ALL PARTIES AS APPEARING ON THE SUPREME COURT, STATE OF NEW YORK ELECTRONIC FILING WEBSITE. Sworn to before me March 3, 2015 Yd) Ne LLO a Commissioner of Decds City of New York - No. 5-1480 Qualified in Richmond County Commission Expires: June 1, 2015 DYS/nxr YMOQ-00104/175 ose SUPREME COURT OF THE STATE OF NEW YORK COUNTY / OF NASSAU JASON GRAHAM, Praintiff, INDEX NO. 600285/2013 -against- T-MOBILE USA, INC., and ELIAS PROPERTIES FLATBUSH, LLC, Defendants. T-MOBILE USA, INC, Third-Party Plaintiff, -against- ELIAS PROPERTIES FLATBUSH, LLC, Third-Party Defendant. aK ono —_ AFFIRMATION IN OPPOSITI iON SMITH MAZURE DIRECTOR WILKINS YOUNG & YAGERMAN, P.C. Attorneys for Defendant/Third-Party Plaintiff T-Mobile USA, inc. 111 John Street New York, NY 10038 (212) 964-7400 TMO-00104 ssn vo CERTIFICATION PURSUANT TO 22 N.Y.C.R.R. §130-1.4a Daniel Y. Sohnen hereby certifies that, pursuant to 22 N.Y.C.R.R. §130-1.1a, the f irrgation pposition is not frivolous nor frivotously presented. Dated: New York, New York sohfien February 25, 2015 cr PLEASE TAKE NOTICE O that the within is a tue copy of a entered in the office of the clerk of the within named Court on that a of which the within is a true copy wil! be presented for settlement to the Hon. one of the judges of the within named Court at On at 9:30 a.m. 159