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FILED: NASSAU COUNTY CLERK 03/13/2015 01:29 PM INDEX NO. 600285/2013
NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 03/13/2015
14 0470G
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
- x
JASON GRAHAM, : Index No.: 600285/2013
Plaintiff(s), : REPLY AFFIRMATION
-against- : Return Date: March 17, 2015
T-MOBILE USA, INC. and ELIAS Assigned to: Hon. John M.
PROPERTIES FLATBUSH, LLC, : Galasso
Defendant(s).
X
Peter A. Cusumano, an attorney duly admitted to practice law before the
Courts of the State of New York, hereby affirms the following to be true under the
penalties of perjury pursuant to CPLR § 2106:
1. I am associated with the law offices of PAGANINI, CIOCI, PINTER,
CUSUMANO & FAROLE, attorneys of record for defendants, Elias Properties
Flatbush, LLC, and as such am familiar with the facts and circumstances of this
case as reflected by the file maintained in our offices.
2. This affirmation is being submitted in reply to the opposition of the
co-defendant, T-Mobile USA, Inc., (hereinafter "T-Mobile") to the Motion of Elias
Properties, LLC (hereinafter "Elias Properties") seeking summary judgment in the
form of contractual indemnification along with attorneys fees as against co-
defendant, T-Mobile.
3. While co-defendant, T-Mobile, sets forth as opposition to the Motion
of Elias Properties that no authentication of the lease was provided by Elias
Properties, it is respectfully pointed out to this Court that co-defendant, T-Mobile,
utilized the same lease in its Motion seeking relief as against Elias Properties in
the form of dismissing the cross claims of Elias Properties as against T-Mobile
and seeking summary judgment as against Elias Properties on T-Mobile’s cross
claims based upon the lease provisions. Indeed, in its Motion, co-defendant, T-
Mobile, cited various portions of the same lease attempting to argue that it was
the landlord’s responsibility to maintain and make repairs to the parking area
where plaintiff claims he had his accident
4. Accordingly, it is clear that the executed lease in question, is the
lease that was in effect at the time between Elias Properties and T-Mobile with
respect to the premises in question.
5. While T-Mobile attempts to argue that the landlord retained control
of the parking lot and was responsible to make structural repairs, the co-
defendant fails to point out to this Court the key language in paragraph 7.1 of the
lease which states as follows: "Notwithstanding anything to the contrary
contained in this Lease, Tenant shall be responsible to maintain, repair and
replace the Exterior Areas, including without limitation, removal of snow, ice and
debris from the sidewalks in the Exterior Areas and to clean and maintain the
gutters of the building." [emphasis added].
6. As can be seen, the above language: "Notwithstanding anything to
the contrary contained in this Lease, Tenant shall be responsible to be
responsible to maintain, repair and replace the Exterior Areas" squarely places
the obligation to maintain, repair and replace the Exterior Areas on the tenant, T-
Mobile.
7. Pursuant to paragraph 2.3 of the lease, Exterior Areas includes the
parking area which paragraph 2.4 of the lease defines as the parking area
adjacent to the building on the property.
8. In view of the plaintiff’s testimony concerning the claimed defect on
the pavement of the parking area and the lease responsibility of the tenant set
forth in paragraph 7.1 of the lease requiring T-Mobile to maintain, repair and
replace the Exterior Areas, which includes the parking area, it is clear that said
lessee T-Mobile was responsible for any defect existing with respect to said
parking area.
9. Pursuant to the indemnification provision contained in paragraph
13.1 of the lease, tenant T-Mobile must indemnify the landlord for claims,
damages, injuries including reasonable attorneys’ fees arising in connection with
third party claims arising out of any breach or default by tenant in the
performance of any of its obligation under the lease.
10. The above demonstrates that the lessee I-Mobile breached and
defaulted under its obligation contained within paragraph 7.1 of the lease to
maintain, repair and replace the Exterior Areas.
11. Therefore, Elias Properties is entitled to contractual indemnification
as against co-defendant, T-Mobile along with attorneys’ fees.
WHEREFORE, it is respectfully requested that the Motion of Elias
Properties be granted in its entirety and for such other and further relief as this
Court deems just and proper under the circumstances.
Dated: Melville, New York
March 13, 2015
"’- Peter Cusumano
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FILED: NASSAU COUNTY CLERK 03/13/2015 01:29 PM INDEX NO. 600285/2013 NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 03/13/2015 14 0470G SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU - x JASON GRAHAM, : Index No.: 600285/2013 Plaintiff(s), : REPLY AFFIRMATION -against- : Return Date: March 17, 2015 T-MOBILE USA, INC. and ELIAS Assigned to: Hon. John M. PROPERTIES FLATBUSH, LLC, : Galasso Defendant(s). X Peter A. Cusumano, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following to be true under the penalties of perjury pursuant to CPLR § 2106: 1. I am associated with the law offices of PAGANINI, CIOCI, PINTER, CUSUMANO & FAROLE, attorneys of record for defendants, Elias Properties Flatbush, LLC, and as such am familiar with the facts and circumstances of this case as reflected by the file maintained in our offices. 2. This affirmation is being submitted in reply to the opposition of the co-defendant, T-Mobile USA, Inc., (hereinafter "T-Mobile") to the Motion of Elias Properties, LLC (hereinafter "Elias Properties") seeking summary judgment in the form of contractual indemnification along with attorneys fees as against co- defendant, T-Mobile. 3. While co-defendant, T-Mobile, sets forth as opposition to the Motion of Elias Properties that no authentication of the lease was provided by Elias Properties, it is respectfully pointed out to this Court that co-defendant, T-Mobile, utilized the same lease in its Motion seeking relief as against Elias Properties in the form of dismissing the cross claims of Elias Properties as against T-Mobile and seeking summary judgment as against Elias Properties on T-Mobile’s cross claims based upon the lease provisions. Indeed, in its Motion, co-defendant, T- Mobile, cited various portions of the same lease attempting to argue that it was the landlord’s responsibility to maintain and make repairs to the parking area where plaintiff claims he had his accident 4. Accordingly, it is clear that the executed lease in question, is the lease that was in effect at the time between Elias Properties and T-Mobile with respect to the premises in question. 5. While T-Mobile attempts to argue that the landlord retained control of the parking lot and was responsible to make structural repairs, the co- defendant fails to point out to this Court the key language in paragraph 7.1 of the lease which states as follows: "Notwithstanding anything to the contrary contained in this Lease, Tenant shall be responsible to maintain, repair and replace the Exterior Areas, including without limitation, removal of snow, ice and debris from the sidewalks in the Exterior Areas and to clean and maintain the gutters of the building." [emphasis added]. 6. As can be seen, the above language: "Notwithstanding anything to the contrary contained in this Lease, Tenant shall be responsible to be responsible to maintain, repair and replace the Exterior Areas" squarely places the obligation to maintain, repair and replace the Exterior Areas on the tenant, T- Mobile. 7. Pursuant to paragraph 2.3 of the lease, Exterior Areas includes the parking area which paragraph 2.4 of the lease defines as the parking area adjacent to the building on the property. 8. In view of the plaintiff’s testimony concerning the claimed defect on the pavement of the parking area and the lease responsibility of the tenant set forth in paragraph 7.1 of the lease requiring T-Mobile to maintain, repair and replace the Exterior Areas, which includes the parking area, it is clear that said lessee T-Mobile was responsible for any defect existing with respect to said parking area. 9. Pursuant to the indemnification provision contained in paragraph 13.1 of the lease, tenant T-Mobile must indemnify the landlord for claims, damages, injuries including reasonable attorneys’ fees arising in connection with third party claims arising out of any breach or default by tenant in the performance of any of its obligation under the lease. 10. The above demonstrates that the lessee I-Mobile breached and defaulted under its obligation contained within paragraph 7.1 of the lease to maintain, repair and replace the Exterior Areas. 11. Therefore, Elias Properties is entitled to contractual indemnification as against co-defendant, T-Mobile along with attorneys’ fees. WHEREFORE, it is respectfully requested that the Motion of Elias Properties be granted in its entirety and for such other and further relief as this Court deems just and proper under the circumstances. Dated: Melville, New York March 13, 2015 "’- Peter Cusumano