Preview
FILED: KINGS COUNTY CLERK 06/27/2018 09:42 PM INDEX NO. 504087/2012
NYSCEF DOC. NO. 184 RECEIVED NYSCEF: 06/27/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS Index No 5 504087/2012
NIDAL ABOU TRABAH AFFIRMATION IN
SUPPORT OF
PLAINTIFFS'
Plaintiff(s) MOTION
-Against-
Z & N HILLSIDE/SUTPHIN LLC, ZANE Return date:
20th
MUNASSA, SHEMSAN GROCERY A/K/A DELI July 2018
& GRILL
IAS/Part 84
Defendant (s), Hon. Carolyn E.
Wade
J. S.C.
I, Durga Prasad Bhurtel, Esq. an attorney-at-law duly
admitted to the practice of law in the State of New York,
hereby affirm under the penalty of perjury, that:
1. I am fully familiar with the facts and all of the
files'
proceedings had herein by reviewing documents.
EXHIBITS IN SUPPORT OF MOTION
2.The Plaintiff submits the following exhibit in support
of their motions:
a.The copy of summons and complaint is hereto
attached as Exhibit 1.
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https://iapps.courts.state.ny.us/nyscef/DocumentL
. .
ist?docketId=oK2XtdTzrb1qa47KlwDLjQ==&display=all
doc. No. 1. ~
b. The defendant Z & N Hillside/Sutphin LLC and
Grill'
Shemsan Grocery A/k/a Deli & Grill's answers are
hereto attached as Exhibit 2.
https://iapps. ~ courts. ~ state .ny . us /nyscef/DocumentL
ist?docketId=oK2XtdTzrb1qa47KlwDLjQ==&display=all
Doc. No. . 6.
Plaintiff'
c.The
~ copy of Plaintiff's Bill of particular is
attached as Exhibit 3
d. Plaintiff's affidavit in support of motion is
herein attached as Exhibit 4.
e.Plaintiff's proposed amended complaint is herein
attached as Exhibit 5.
FACTS
3. This is a personal injury action where the including
minor plaintiff's sustained serious injuries because
of the defendant's joint and several negligence,
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carelessness and recklessness. Defendants were doing
construction renovation work in the subject location.
The plaintiffs have been receiving medical treatment
since the date of accident. The defendant created,
caused and permitted defective, hazardous and
dangerous condition in his business premises located
the premises known as 8768 Sutphin Boulevard, Jamaica
New York 11435, where defendant negligently maintain
Basement and/or cellar entrance where plaintiff fell
from first floor to basement. Defendant also violated
New York Labor Law section 240 and section 241(6)
promulgated regulations and section 200.
4. Now Plaintiff is making this motion to add two
additional cause of action particularly second cause
of action which is violation of Labor Section 240 (1)
and third Cause of Action which is violation of Labor
Law section 241(6) and fourth cause of action for
violation of Labor section 200. See attached proposed
amended complaint paragraphs 44 to 49 for Second cause
of action and Paragraphs 50 to 59 for third Cause of
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action and Paragraphs 60 to 65 for fourth cause of
action.
5. The plaintiff has appeared for deposition complied
preliminary conference order and compliance order.
Defendant has not appeared for deposition but has been
scheduled for July 12 2018.
ARGUMENT
I. Leave to amend compliant is freely allowed.
6."A party may amend his pleading or supplement it by
setting forth additional or subsequent transactions or
occurrence or occurrence, at any time by leave of court
or by stipulation of all parties. Leave shall be freely
given upon such term as may be just including the
continuances."
granting of costs and See CPLR R
3025(b). It is well-settled law that, leave to amend
a pleading is freely granted in the absence of
demonstrative prejudice to the opposing party and
defendant cannot reasonably demonstrate any prejudice
here. Leibowitz v Mr. Sinai Hospital 296 A. D. 2d 340,
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(13t Dep'
745 N. Y. S. 2d 166 Dep't 2002). . Crespo v Triad
(13t Dep'
Inc. 294 A. D. 2d 145, 742 N. Y. S. 2d 25 Dep't
2002). .
7. The policy is to permit amendment, for almost any
purpose, as long as the adverse party cannot claim
prejudice. This policy is spelled out in the
given."
instruction that "leave shall be freely CPLR
3025(b). .
8. Mere lateness is not a barrier to granting the motion
to amend. It must be lateness coupled with
significant prejudice to the other side. Edenwald
Contracting Co., Inc. v. City of New York, 60 N.Y.2d
957, 471 N.Y.S.2d 55 (1983); St. Paul Fire 6 Marine
Ins. Co. v. Town of Hempstead, 291 A.D.2d 488, 738
N.Y.S.2d 226 (2d Dep't 2002); Medi-Trust Fin. Servs.
Corp. v. Giardina, 270 A.D.2d 803, 705 N.Y.S.2d 912
'
(4th Dep't 2000); Norwood v. City of New York, 203
A.D.2d 147, 610 N.Y.S.2d 249 (1st Dep't 1994);
Dougherty v. Wade Lupe Const. Co., Inc., 98 A.D.2d
868, 470 N.Y.S.2d 812 (3d Dep't 1983). .
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9. The Court of Appeals has carried out the statute's
purpose, noting that "[1]eave to amend the pleadings
given'
'shall be freely absent prejudice or surprise
delay."
resulting directly from the McCaskey, Davies
and Assocs., Inc. v. New York City Health 6 Hosps.
Corp., 59 N.Y.2d 755, 757, 463 N.Y. S.2d 434, 434
(1983) ; see Boxhorn v. Alliance Imaging, Inc., 74
A.D.3d 1735, 901 N.Y.S.2d 891 (4th Dep't 2010). .
10. Defendants were doing certain construction,
erection, demolition, repairing, altering, painting,
cleaning at the location where plaintiff fell, and
sustained injuries address know as 8768 Sutphin
Boulevard City of Jamaica, state of New York Zip code
of 11435 (hereinafter subject location or Shemsan
Grocery) . See paragraphs 4, 5 and 6 of plaintiff Abu
Trabha affidavit.
11. The subjection location is a building and/or
structure as defined by Labor Law Section 240 or 241
which is owned and controlled by the defendants.
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12. Defendants, its agent servants and/or employee
failed to furnish or erect or cause to be furnished
or erected, such labor, hoists, ladders, slings or
other devices which shall be so constructed, placed,
and/or operated as to give proper protection to
plaintiff. See NY Labor Law 5 240 (1) an 241(6).
plaintiff'
See also plaintiff's affidavit. See also proposed
amended complaint paragraphs 44 to 65 as Exhibit 5.
13. It is well settled that the protection afforded
pursuant to Labor Law 5 240 (1) will extend to
workers performing repairs but not maintenance of a
building or structure.
14. Plaintiff testified that he was hired by Contractor
Mohammed Ahmed Sbeiha (Seibha) to work in the fall
th
location on July 7 2012. Contractor Seibha was
defendants'
working for the building and/or
structure. Contractor was doing renovation of the
building and/or structure. See Abu Trabha affidavit.
15. While plaintiff was working for Contractor Sbeiha he
fell down from the hole of basement entrance door.
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There was no light, no warning sign. He was new to
the United States plaintiff Trabha did not see that
hole of basement entrance door, before he fell down
from that hole. See Abu Trahba's affidavit.
Plaintiff was employee within the meaning of Labor
Law section 240 and 241. Even if plaintiff Abu
Trabha was working for the Contractor defendants had
nondelegable duty to provide safe work place. See
Labor law 5 240 and 241.
16. Labor Law Section 240 's purpose is to maximize the
protection afforded workmen engaged in dangerous
employment and should be liberally construed.
v —
Lagzdins United Welfare Fund-Security Div.
Marriott Corp., 77 AD2d 585, 588 [2d Dept 1980]. .
17. Plaintiff has meritorious claim in the proposed new
cause of action. See affidavit of Mr. Abu Trabha.
18. I have printed proposed amended compliant paragraphs
in boldface. See Exhibit 5.
19. There is no prejudice to the defendant by allowing
amendment of complaint. Defendant's premises has
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videos recording cameras. Defendant has not produced
those video records. See affidavit of Plaintiff Abu
Trabha.
20. For the forgoing reasons plaintiff respectfully
request for allowing to amended compliant as
proposed herein in Exhibit 5.
PLAINTIFF CAN NOT FILED NOTE OF ISSUE BECAUSE DEFENDANT
HAS NOT PROVIDED THINGS AND RECORDS
21. As per CC order and Order dated June 22, 2018 the
plaintiff is required to file note of issue on or
before June 29 2018, but discovery and inspection
was not complete. Due to the defendant's failure to
comply PC and CC order the plaintiff will not be
able to file note of issue on or before June 29,
2018 therefore it is respectfully requested for
extension of time to file note of issue. Plaintiff
has made previously motion to extent to file note of
issues and court granted.
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22. Pursuant to 22 NYCRR 130-1.1-a, the undersigned, an
attorney admitted to practice in the courts of New
York State, certifies that upon information and
belief, and after reasonable inquiry, the
contentions contained in the annexed documents (s)
are not frivolous.
RELIEFS
Wherefore it is respectfully prays that plaintiff's
motion should be granted for the following reliefs:
a. Granting leave to amend compliant
b. Granting extension of time to file note of issue
and/or
c. other relief should be granted as this court deems
just, and proper.
Dated Queens New York
June 25, 2018 Durga Prasad Bhurtel, Esq.
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
Index No # 504087/2012
NIDAL ABOU TRABAH
NOTICE OF MOTION
Plaintiff(s)
-Against-
Return date: July 20
Z & N HILLSIDE/SUTPHIN LLC, ZANE MUNASSA,
2018
SHEMSAN GROCERY A/K/A DELI & GRILL
IAS/Part 84
Defendant (s),
Hon. Carolyn e. Wade
J. S.C.
SIRS/MADAM:
PLEASE TAKE NOTICE that upon the affirmation of Durga Prasad
Bhurtel, Esq. dated June 9, 2018 and upon all the pleadings and
proceedings heretofore had herein, the undersigned will move
before this court, (part 84 Room 423 ) at the Kings County
Courthouse, located at 360 Adams Street, Brooklyn, New York, on
20th o'
the Day of July 2018 at 9:45 clock in the forenoon of that
day or as soon thereafter as counsel can be heard for:
1. Leave to amend complaint pursuant to CPLR 5 3025(b),
2. Extending time to file note of issue and
3. other relief should be granted as this court deems just, and
proper
PLEASE TAKE FURTHER NOTICE that pursuant to CPLR Section
2214(b), answering affidavits, if any, must be served upon the
undersigned at least seven (7) days before the return date of this
motion.
1
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Dated Queens New York
June 25, 2018 Your Etc.
BHURTEL LAW FIRM PL C
Durga trasad Bhuf te 'sq.
Attorney for the P'aintiffs
3749 75th Street rioor 2na
Jackson Heights New York
11372
7185096181
1. Morrison Mahoney LLP
Attorney for the defendant Shemsan Grocery, Inc.S/h/i/a
Shemsan Greocery A/k/a Deli and Gril and Z & N
Hillside/Sutphin LLC
Office and P. O. address
120 Broadway Suite 1010
New York NY 10271
Phone 4 2128251212
Your file 4 10050886
2
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Preview
FILED: KINGS COUNTY CLERK 06/27/2018 09:42 PM INDEX NO. 504087/2012 NYSCEF DOC. NO. 184 RECEIVED NYSCEF: 06/27/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS Index No 5 504087/2012 NIDAL ABOU TRABAH AFFIRMATION IN SUPPORT OF PLAINTIFFS' Plaintiff(s) MOTION -Against- Z & N HILLSIDE/SUTPHIN LLC, ZANE Return date: 20th MUNASSA, SHEMSAN GROCERY A/K/A DELI July 2018 & GRILL IAS/Part 84 Defendant (s), Hon. Carolyn E. Wade J. S.C. I, Durga Prasad Bhurtel, Esq. an attorney-at-law duly admitted to the practice of law in the State of New York, hereby affirm under the penalty of perjury, that: 1. I am fully familiar with the facts and all of the files' proceedings had herein by reviewing documents. EXHIBITS IN SUPPORT OF MOTION 2.The Plaintiff submits the following exhibit in support of their motions: a.The copy of summons and complaint is hereto attached as Exhibit 1. Page 1 of 10 1 of 12 FILED: KINGS COUNTY CLERK 06/27/2018 09:42 PM INDEX NO. 504087/2012 NYSCEF DOC. NO. 184 RECEIVED NYSCEF: 06/27/2018 https://iapps.courts.state.ny.us/nyscef/DocumentL . . ist?docketId=oK2XtdTzrb1qa47KlwDLjQ==&display=all doc. No. 1. ~ b. The defendant Z & N Hillside/Sutphin LLC and Grill' Shemsan Grocery A/k/a Deli & Grill's answers are hereto attached as Exhibit 2. https://iapps. ~ courts. ~ state .ny . us /nyscef/DocumentL ist?docketId=oK2XtdTzrb1qa47KlwDLjQ==&display=all Doc. No. . 6. Plaintiff' c.The ~ copy of Plaintiff's Bill of particular is attached as Exhibit 3 d. Plaintiff's affidavit in support of motion is herein attached as Exhibit 4. e.Plaintiff's proposed amended complaint is herein attached as Exhibit 5. FACTS 3. This is a personal injury action where the including minor plaintiff's sustained serious injuries because of the defendant's joint and several negligence, Page 2 of 10 2 of 12 FILED: KINGS COUNTY CLERK 06/27/2018 09:42 PM INDEX NO. 504087/2012 NYSCEF DOC. NO. 184 RECEIVED NYSCEF: 06/27/2018 carelessness and recklessness. Defendants were doing construction renovation work in the subject location. The plaintiffs have been receiving medical treatment since the date of accident. The defendant created, caused and permitted defective, hazardous and dangerous condition in his business premises located the premises known as 8768 Sutphin Boulevard, Jamaica New York 11435, where defendant negligently maintain Basement and/or cellar entrance where plaintiff fell from first floor to basement. Defendant also violated New York Labor Law section 240 and section 241(6) promulgated regulations and section 200. 4. Now Plaintiff is making this motion to add two additional cause of action particularly second cause of action which is violation of Labor Section 240 (1) and third Cause of Action which is violation of Labor Law section 241(6) and fourth cause of action for violation of Labor section 200. See attached proposed amended complaint paragraphs 44 to 49 for Second cause of action and Paragraphs 50 to 59 for third Cause of Page 3 of 10 3 of 12 FILED: KINGS COUNTY CLERK 06/27/2018 09:42 PM INDEX NO. 504087/2012 NYSCEF DOC. NO. 184 RECEIVED NYSCEF: 06/27/2018 action and Paragraphs 60 to 65 for fourth cause of action. 5. The plaintiff has appeared for deposition complied preliminary conference order and compliance order. Defendant has not appeared for deposition but has been scheduled for July 12 2018. ARGUMENT I. Leave to amend compliant is freely allowed. 6."A party may amend his pleading or supplement it by setting forth additional or subsequent transactions or occurrence or occurrence, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such term as may be just including the continuances." granting of costs and See CPLR R 3025(b). It is well-settled law that, leave to amend a pleading is freely granted in the absence of demonstrative prejudice to the opposing party and defendant cannot reasonably demonstrate any prejudice here. Leibowitz v Mr. Sinai Hospital 296 A. D. 2d 340, Page 4 of 10 4 of 12 FILED: KINGS COUNTY CLERK 06/27/2018 09:42 PM INDEX NO. 504087/2012 NYSCEF DOC. NO. 184 RECEIVED NYSCEF: 06/27/2018 (13t Dep' 745 N. Y. S. 2d 166 Dep't 2002). . Crespo v Triad (13t Dep' Inc. 294 A. D. 2d 145, 742 N. Y. S. 2d 25 Dep't 2002). . 7. The policy is to permit amendment, for almost any purpose, as long as the adverse party cannot claim prejudice. This policy is spelled out in the given." instruction that "leave shall be freely CPLR 3025(b). . 8. Mere lateness is not a barrier to granting the motion to amend. It must be lateness coupled with significant prejudice to the other side. Edenwald Contracting Co., Inc. v. City of New York, 60 N.Y.2d 957, 471 N.Y.S.2d 55 (1983); St. Paul Fire 6 Marine Ins. Co. v. Town of Hempstead, 291 A.D.2d 488, 738 N.Y.S.2d 226 (2d Dep't 2002); Medi-Trust Fin. Servs. Corp. v. Giardina, 270 A.D.2d 803, 705 N.Y.S.2d 912 ' (4th Dep't 2000); Norwood v. City of New York, 203 A.D.2d 147, 610 N.Y.S.2d 249 (1st Dep't 1994); Dougherty v. Wade Lupe Const. Co., Inc., 98 A.D.2d 868, 470 N.Y.S.2d 812 (3d Dep't 1983). . Page 5 of 10 5 of 12 FILED: KINGS COUNTY CLERK 06/27/2018 09:42 PM INDEX NO. 504087/2012 NYSCEF DOC. NO. 184 RECEIVED NYSCEF: 06/27/2018 9. The Court of Appeals has carried out the statute's purpose, noting that "[1]eave to amend the pleadings given' 'shall be freely absent prejudice or surprise delay." resulting directly from the McCaskey, Davies and Assocs., Inc. v. New York City Health 6 Hosps. Corp., 59 N.Y.2d 755, 757, 463 N.Y. S.2d 434, 434 (1983) ; see Boxhorn v. Alliance Imaging, Inc., 74 A.D.3d 1735, 901 N.Y.S.2d 891 (4th Dep't 2010). . 10. Defendants were doing certain construction, erection, demolition, repairing, altering, painting, cleaning at the location where plaintiff fell, and sustained injuries address know as 8768 Sutphin Boulevard City of Jamaica, state of New York Zip code of 11435 (hereinafter subject location or Shemsan Grocery) . See paragraphs 4, 5 and 6 of plaintiff Abu Trabha affidavit. 11. The subjection location is a building and/or structure as defined by Labor Law Section 240 or 241 which is owned and controlled by the defendants. Page 6 of 10 6 of 12 FILED: KINGS COUNTY CLERK 06/27/2018 09:42 PM INDEX NO. 504087/2012 NYSCEF DOC. NO. 184 RECEIVED NYSCEF: 06/27/2018 12. Defendants, its agent servants and/or employee failed to furnish or erect or cause to be furnished or erected, such labor, hoists, ladders, slings or other devices which shall be so constructed, placed, and/or operated as to give proper protection to plaintiff. See NY Labor Law 5 240 (1) an 241(6). plaintiff' See also plaintiff's affidavit. See also proposed amended complaint paragraphs 44 to 65 as Exhibit 5. 13. It is well settled that the protection afforded pursuant to Labor Law 5 240 (1) will extend to workers performing repairs but not maintenance of a building or structure. 14. Plaintiff testified that he was hired by Contractor Mohammed Ahmed Sbeiha (Seibha) to work in the fall th location on July 7 2012. Contractor Seibha was defendants' working for the building and/or structure. Contractor was doing renovation of the building and/or structure. See Abu Trabha affidavit. 15. While plaintiff was working for Contractor Sbeiha he fell down from the hole of basement entrance door. Page 7 of 10 7 of 12 FILED: KINGS COUNTY CLERK 06/27/2018 09:42 PM INDEX NO. 504087/2012 NYSCEF DOC. NO. 184 RECEIVED NYSCEF: 06/27/2018 There was no light, no warning sign. He was new to the United States plaintiff Trabha did not see that hole of basement entrance door, before he fell down from that hole. See Abu Trahba's affidavit. Plaintiff was employee within the meaning of Labor Law section 240 and 241. Even if plaintiff Abu Trabha was working for the Contractor defendants had nondelegable duty to provide safe work place. See Labor law 5 240 and 241. 16. Labor Law Section 240 's purpose is to maximize the protection afforded workmen engaged in dangerous employment and should be liberally construed. v — Lagzdins United Welfare Fund-Security Div. Marriott Corp., 77 AD2d 585, 588 [2d Dept 1980]. . 17. Plaintiff has meritorious claim in the proposed new cause of action. See affidavit of Mr. Abu Trabha. 18. I have printed proposed amended compliant paragraphs in boldface. See Exhibit 5. 19. There is no prejudice to the defendant by allowing amendment of complaint. Defendant's premises has Page S of 10 8 of 12 FILED: KINGS COUNTY CLERK 06/27/2018 09:42 PM INDEX NO. 504087/2012 NYSCEF DOC. NO. 184 RECEIVED NYSCEF: 06/27/2018 videos recording cameras. Defendant has not produced those video records. See affidavit of Plaintiff Abu Trabha. 20. For the forgoing reasons plaintiff respectfully request for allowing to amended compliant as proposed herein in Exhibit 5. PLAINTIFF CAN NOT FILED NOTE OF ISSUE BECAUSE DEFENDANT HAS NOT PROVIDED THINGS AND RECORDS 21. As per CC order and Order dated June 22, 2018 the plaintiff is required to file note of issue on or before June 29 2018, but discovery and inspection was not complete. Due to the defendant's failure to comply PC and CC order the plaintiff will not be able to file note of issue on or before June 29, 2018 therefore it is respectfully requested for extension of time to file note of issue. Plaintiff has made previously motion to extent to file note of issues and court granted. Page 9 of 10 9 of 12 FILED: KINGS COUNTY CLERK 06/27/2018 09:42 PM INDEX NO. 504087/2012 NYSCEF DOC. NO. 184 RECEIVED NYSCEF: 06/27/2018 22. Pursuant to 22 NYCRR 130-1.1-a, the undersigned, an attorney admitted to practice in the courts of New York State, certifies that upon information and belief, and after reasonable inquiry, the contentions contained in the annexed documents (s) are not frivolous. RELIEFS Wherefore it is respectfully prays that plaintiff's motion should be granted for the following reliefs: a. Granting leave to amend compliant b. Granting extension of time to file note of issue and/or c. other relief should be granted as this court deems just, and proper. Dated Queens New York June 25, 2018 Durga Prasad Bhurtel, Esq. Page 10 of 10 10 of 12 FILED: KINGS COUNTY CLERK 06/27/2018 09:42 PM INDEX NO. 504087/2012 NYSCEF DOC. NO. 184 RECEIVED NYSCEF: 06/27/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS Index No # 504087/2012 NIDAL ABOU TRABAH NOTICE OF MOTION Plaintiff(s) -Against- Return date: July 20 Z & N HILLSIDE/SUTPHIN LLC, ZANE MUNASSA, 2018 SHEMSAN GROCERY A/K/A DELI & GRILL IAS/Part 84 Defendant (s), Hon. Carolyn e. Wade J. S.C. SIRS/MADAM: PLEASE TAKE NOTICE that upon the affirmation of Durga Prasad Bhurtel, Esq. dated June 9, 2018 and upon all the pleadings and proceedings heretofore had herein, the undersigned will move before this court, (part 84 Room 423 ) at the Kings County Courthouse, located at 360 Adams Street, Brooklyn, New York, on 20th o' the Day of July 2018 at 9:45 clock in the forenoon of that day or as soon thereafter as counsel can be heard for: 1. Leave to amend complaint pursuant to CPLR 5 3025(b), 2. Extending time to file note of issue and 3. other relief should be granted as this court deems just, and proper PLEASE TAKE FURTHER NOTICE that pursuant to CPLR Section 2214(b), answering affidavits, if any, must be served upon the undersigned at least seven (7) days before the return date of this motion. 1 11 of 12 FILED: KINGS COUNTY CLERK 06/27/2018 09:42 PM INDEX NO. 504087/2012 NYSCEF DOC. NO. 184 RECEIVED NYSCEF: 06/27/2018 Dated Queens New York June 25, 2018 Your Etc. BHURTEL LAW FIRM PL C Durga trasad Bhuf te 'sq. Attorney for the P'aintiffs 3749 75th Street rioor 2na Jackson Heights New York 11372 7185096181 1. Morrison Mahoney LLP Attorney for the defendant Shemsan Grocery, Inc.S/h/i/a Shemsan Greocery A/k/a Deli and Gril and Z & N Hillside/Sutphin LLC Office and P. O. address 120 Broadway Suite 1010 New York NY 10271 Phone 4 2128251212 Your file 4 10050886 2 12 of 12