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INDEX NO. 600285/2013
NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 03/03/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
wenn nee ne ne ee nen enn een
JASON GRAHAM,
REPLY AFFIRMATION
Plaintiff,
Index No. 600285/2013
-against-
Hon. John M. Galasso, J.S.C.
T-MOBILE USA, INC., and ELIAS PROPERTIES,
FLATBUSH, LLC,
Defendants.
T-MOBILE USA, INC. Third-Party Index No.
600285/2013
Third-Party Plaintiff,
~against-
ELIAS PROPERTIES FLATBUSH, LLC,
Third-Party Defendant
cnet enema amine netneenwnnennenn
anne etenanenneeennene renee Xx
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 Defendant/Third-Party Plaintiff T-Mobile USA, Inc. herein and I
am fully familiar with the facts and circumstances surrounding the instant action. I make this
affirmation in reply to the affirmation in opposition submitted by counsel for plaintiff Jason
Graham.
22. The defendani, T-Mobile USA, Inc. has no statutory or common law duty to
repair the parking lot/sidewalk and owes no duty to plaintiff who was not an invitee or a
customer at the time of his accident. New York City’s administrative code imposes a statutory
duty on the landlord not the tenant to repair and maintain the sidewalk. Therefore, plaintiff has
no basis to seek recovery against T-Mobile USA, Inc. unless they can demonstrate that the
alleged defective condition was caused and/or created by T-Mobile USA, inc. Plaintiff has not
brought forth any evidence before the Court that can be used to demonstrate the alleged defective
condition was caused and/or created by T-Mobile USA, Inc. Plaintiff's reliance on New York
City Administrative Code §19-152(a) is similarly ineffective in undermining T-Mobile USA,
Inc.’s entitlement to judgment as a matter of law. That section also imposed a duty on the
landlord (not the tenant) for repairing sidewalk flags.
3 Plaintiff argues that T-Mobile USA, Inc. failed to make a prima facie showing
that they did not create the alleged defective condition and did not have actual or constructive
notice of the alleged defect complained of, that the alleged defect was not too trivial and that it
was not the proximate cause of the alleged accident. First, T-Mobile USA, Inc. did not seek
judgment on the theory of de minimus defect. Second, Mobile USA, Inc. did not seek judgment
on the theory of proximate cause. Instead, the argument proffered by Mobile USA, Inc. is that
plaintiff could not identify the alleged defective condition when shown photographs of the
parking Jot. Additionally, the photographs provided by plaintiff claiming to show the defective
condition were clearly proven to not have existed on the date of loss.
4 The defendant provided the Court with photographs of the area where plaintiff
claims he fell that were taken shortly after the alleged accident. Those photographs depict a
parking lot with some spider cracks and a metal square drain cover. No six inch wide and deep
hole is depicted anywhere in the photograph. When compared to the plaintiffs photographs
taken after his deposition the metal drain cover is removed and broken into several pieces. But
even then there is no hole six inches wide and deep. Obviously the metal cover was not broken
and missing as the earlier photographs taken a few manths post accident show it was there.
Plaintiff seeks to create a defective condition after the accident but cannot demonstrate to the
Court that it existed on the date of loss.
3 Plaintiff has not and cannot demonstrate actual or constructive notice of the
alleged defective condition, which is claimed to be a six inch wide and six inch deep hole in the
parking lot. T-Mobile USA, Inc. produced the store manager that testified he had never seen the
alleged hole complained of. When shown the photographs taken by plaintiff more than one year
post accident his testimony was that he had never seen that condition before. Plaintiff has not and
cannot demonstrate actual or constructive notice. He cannot demonstrate the alleged condition
ever existed on the date of loss. Therefore, defendant has demonstrated prima facie entitlement to
judgment as a matter of law and the plaintiff's complaint should be dismissed in its entirety.
6 Plaintiff's affidavit fails to undermine the entitlement to judgment as a matter of
law. Plaintiffs own swom affidavit admits he cannot identify the alleged defective condition
complained of. Therefore, the plaintiff's complaint should be dismissed. He cannot demonstrate
notice, there is no duty for the tenant owed to the plaintiff and plaintiff cannot demonstrate that
T-Mobile USA, Inc. caused or created the alleged defective condition.
WHEREFORE, it is respectfully requested that the Court grant 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
March 3, 2015 n
(
DA YY. SOHNEN
TMO-00104/173
STATE OF NEW YORK, COUNTY OF NEW YORK SS.
AFFIDAVIT OF SERVICE BY ELECTRONIC FILING
Natasha Rampaul, being duly sworn, deposes and says that deponent i employed
by Smith Mazure Director Wilkins Young & Yagerman, P.C., the attorney for Defendant/Third-
Party Plaintiff T-Mobile USA, Inc., is over the age of eightcen, is not a party to this action, and
resides at Elizabeth, NJ.
On March 3, 2015, deponent served the within Reply Affirmation upon:
ALL PARTIES AS APPEARING ON THE SUPREME COURT, STATE OF NEW YORK
ELECTRONIC FILING WEBSITE.
Xisha Renpadl Rape 0
Sworn to before me
March 3, 2015
\\;
—_____
ALLO
Commissioner of Decds
City of New York- No. 5-1480
Qualified in Richmond County
Commission Expires: June 1, 2015
DYS/oxr
TMO-00104/1 75
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
essen
JASON GRAHAM,
Plaintiff, INDEX NO. 600285/2013
-againsi-
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.
X
REPLY AFFIRMATION
poceanson so
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
ERTIFICATION PURSUANT TO 22 N.Y.C.R.R. §43
2
Daniel Y. Sohnen hereby certifies that, pursuant to 22 N.Y.C.R.R. §130-1.4a, the ing Rep firmation is not frivolous nor
frivolously presented.
C
Dated: New York, New York SH EN
March 3, 2015
ss
PLEASE TAKE NOTICE
Oo that the within is @ true 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 will be presented for settlement to the Hon. one of the judges of the
within named Court at on at 9:30 am.
173
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INDEX NO. 600285/2013 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 03/03/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU wenn nee ne ne ee nen enn een JASON GRAHAM, REPLY AFFIRMATION Plaintiff, Index No. 600285/2013 -against- Hon. John M. Galasso, J.S.C. T-MOBILE USA, INC., and ELIAS PROPERTIES, FLATBUSH, LLC, Defendants. T-MOBILE USA, INC. Third-Party Index No. 600285/2013 Third-Party Plaintiff, ~against- ELIAS PROPERTIES FLATBUSH, LLC, Third-Party Defendant cnet enema amine netneenwnnennenn anne etenanenneeennene renee Xx 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 Defendant/Third-Party Plaintiff T-Mobile USA, Inc. herein and I am fully familiar with the facts and circumstances surrounding the instant action. I make this affirmation in reply to the affirmation in opposition submitted by counsel for plaintiff Jason Graham. 22. The defendani, T-Mobile USA, Inc. has no statutory or common law duty to repair the parking lot/sidewalk and owes no duty to plaintiff who was not an invitee or a customer at the time of his accident. New York City’s administrative code imposes a statutory duty on the landlord not the tenant to repair and maintain the sidewalk. Therefore, plaintiff has no basis to seek recovery against T-Mobile USA, Inc. unless they can demonstrate that the alleged defective condition was caused and/or created by T-Mobile USA, inc. Plaintiff has not brought forth any evidence before the Court that can be used to demonstrate the alleged defective condition was caused and/or created by T-Mobile USA, Inc. Plaintiff's reliance on New York City Administrative Code §19-152(a) is similarly ineffective in undermining T-Mobile USA, Inc.’s entitlement to judgment as a matter of law. That section also imposed a duty on the landlord (not the tenant) for repairing sidewalk flags. 3 Plaintiff argues that T-Mobile USA, Inc. failed to make a prima facie showing that they did not create the alleged defective condition and did not have actual or constructive notice of the alleged defect complained of, that the alleged defect was not too trivial and that it was not the proximate cause of the alleged accident. First, T-Mobile USA, Inc. did not seek judgment on the theory of de minimus defect. Second, Mobile USA, Inc. did not seek judgment on the theory of proximate cause. Instead, the argument proffered by Mobile USA, Inc. is that plaintiff could not identify the alleged defective condition when shown photographs of the parking Jot. Additionally, the photographs provided by plaintiff claiming to show the defective condition were clearly proven to not have existed on the date of loss. 4 The defendant provided the Court with photographs of the area where plaintiff claims he fell that were taken shortly after the alleged accident. Those photographs depict a parking lot with some spider cracks and a metal square drain cover. No six inch wide and deep hole is depicted anywhere in the photograph. When compared to the plaintiffs photographs taken after his deposition the metal drain cover is removed and broken into several pieces. But even then there is no hole six inches wide and deep. Obviously the metal cover was not broken and missing as the earlier photographs taken a few manths post accident show it was there. Plaintiff seeks to create a defective condition after the accident but cannot demonstrate to the Court that it existed on the date of loss. 3 Plaintiff has not and cannot demonstrate actual or constructive notice of the alleged defective condition, which is claimed to be a six inch wide and six inch deep hole in the parking lot. T-Mobile USA, Inc. produced the store manager that testified he had never seen the alleged hole complained of. When shown the photographs taken by plaintiff more than one year post accident his testimony was that he had never seen that condition before. Plaintiff has not and cannot demonstrate actual or constructive notice. He cannot demonstrate the alleged condition ever existed on the date of loss. Therefore, defendant has demonstrated prima facie entitlement to judgment as a matter of law and the plaintiff's complaint should be dismissed in its entirety. 6 Plaintiff's affidavit fails to undermine the entitlement to judgment as a matter of law. Plaintiffs own swom affidavit admits he cannot identify the alleged defective condition complained of. Therefore, the plaintiff's complaint should be dismissed. He cannot demonstrate notice, there is no duty for the tenant owed to the plaintiff and plaintiff cannot demonstrate that T-Mobile USA, Inc. caused or created the alleged defective condition. WHEREFORE, it is respectfully requested that the Court grant 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 March 3, 2015 n ( DA YY. SOHNEN TMO-00104/173 STATE OF NEW YORK, COUNTY OF NEW YORK SS. AFFIDAVIT OF SERVICE BY ELECTRONIC FILING Natasha Rampaul, being duly sworn, deposes and says that deponent i employed by Smith Mazure Director Wilkins Young & Yagerman, P.C., the attorney for Defendant/Third- Party Plaintiff T-Mobile USA, Inc., is over the age of eightcen, is not a party to this action, and resides at Elizabeth, NJ. On March 3, 2015, deponent served the within Reply Affirmation upon: ALL PARTIES AS APPEARING ON THE SUPREME COURT, STATE OF NEW YORK ELECTRONIC FILING WEBSITE. Xisha Renpadl Rape 0 Sworn to before me March 3, 2015 \\; —_____ ALLO Commissioner of Decds City of New York- No. 5-1480 Qualified in Richmond County Commission Expires: June 1, 2015 DYS/oxr TMO-00104/1 75 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU essen JASON GRAHAM, Plaintiff, INDEX NO. 600285/2013 -againsi- 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. X REPLY AFFIRMATION poceanson so 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 ERTIFICATION PURSUANT TO 22 N.Y.C.R.R. §43 2 Daniel Y. Sohnen hereby certifies that, pursuant to 22 N.Y.C.R.R. §130-1.4a, the ing Rep firmation is not frivolous nor frivolously presented. C Dated: New York, New York SH EN March 3, 2015 ss PLEASE TAKE NOTICE Oo that the within is @ true 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 will be presented for settlement to the Hon. one of the judges of the within named Court at on at 9:30 am. 173