Preview
INDEX NO. 153809/2012
FILED: NEW YORK COUNTY CLERK 03711/2014
NYSCEF DOC. NO. 109 RECEIVED NYSCEF 3/11/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
ee eater RR RR
PATRICK KEEN, Index #: 153809/12
Plaintiff,
-against-
MAJESTIC REALTY ASSOCIATES LLC, CHALLENGER,
PROPERTIES, LLC and NEW YORK SMSA LIMITED NOTICE OF
PARTNERSHIP d/b/a VERIZON WIRELESS, MOTION
Defendants,
MAJESTIC REALTY ASSOCIATES LLC, CHALLENGER
PROPERTIES, LLC,
Third-Party Plaintiff,
-against- Index No.: 590222/13
NEW YORK SMSA LIMITED PARTNERSHIP d/b/a
VERIZON WIRELESS,
Third-Party Defendant.
nnn nee nent
NEW YORK SMSA LIMITED PARTNERSHIP d/b/a
VERIZON WIRELESS,
Second Third-Party Plaintiff,
-against-
RED WING ELECTRIC, LLC, Index No.: 590399/13
Second Third-Party Defendant,
eee ntact anne anne nee neta,
PLEASE TAKE NOTICE that a motion will be made as follows:
MOTION BY: LAW OFFICES OF SAFRANEK, COHEN & KROLIAN
Attorneys for Defendant
RED WING ELECTRIC, LLC
One Water Street
White Plains, New York 10601
DATE/TIME/PLACE April 11, 2014 9:30 a.m., Motion Support, Room 130, 60 Centre
Street, New York, NY 10004
OPPOSITION COUNSEL: Bader Yakaitis & Nonnenmacher, LLP
Attomeys for Plaintiff
1430 Broadway, Ste. 1802
¥OV/13-1380/Notice of Motion & Affirmation in Support
New York, NY 10018
Kaufman Borgeest & Ryan, LLP
Attorneys for Defendant/Third-Party Plaintiffs
Majestic Realty Associates LLC and
Challenger Properties, LLC
120 Broadway, 14th Floor
New York, New York 10271
Ledy-Gurren, Bass & Siff, LLP
Attorneys for Defendant/Third-Party Defendant
New York SMSA Limited Partnership D/B/A Verizon Wireless
475 Park Avenue South, 27" Floor
New York, NY 10016
SUPPORTING PAPERS: Affirmation of Karen Maniscalco, Esq., March 11, 2014, Good
Faith Affirmation of March 11, 2014, and other supporting exhibits
RELIEF SOUGHT: 1) An Order to dismiss the second third-party complaint pursuant
to CPLR §3211; or in the alternative, an Order to sever the second
third-party complaint from the main action pursuant to CPLR
§1010 or, in the alternative, an Order extending the time nunc pro
tunc to file a motion for summary judgment.
2) GRANTING, such other and further relief as this Court deems
just and proper.
PLEASE TAKE FURTHER NOTICE, that pursuant to Rule 2214(b), all
answering affidavits, if any, are required to be served at least seven (7) days prior to the return
date of this motion.
Dated: White Plains, New York
March 11, 2014
Respectfully yours, +
Karen Maniscalco, Esq.
LAW OFFICES OF SAFRANEK,
COHEN & KROLIAN
Attorneys for Defendant
RED WING ELECTRIC, LLC
One Water Street
White Plains, New York 10601
(914) 997-0072
KM/13-1380/Notice of Motion & Affirmation in Support
To:
Eric L. Horn, Esq
Bader Yakaitis & Nonnenmacher, LLP
Attorneys for Plaintiff
1430 Broadway, Ste. 1802
New York, NY 10018
Kaufman Borgeest & Ryan, LLP
Attorneys for Defendant/Third-Party Plaintiffs
Majestic Realty Associates LLC and
Challenger Properties, LLC
120 Broadway, 14th Floor
New York, New York 10271
Ledy-Gurren, Bass & Siff, LLP
Attorneys for Defendant/Third-Party Defendant
New York SMSA Limited Partnership D/B/A Verizon Wireless
475 Park Avenue South, 27 Floor
New York, NY 10016
KN/13 - 138 0/Notice of Motion & Affirmation in Support
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
wenn nent en emenngneene
ene ne
PATRICK KEEN, Index #: 153809/12
Plaintiff,
-against-
MAJESTIC REALTY ASSOCIATES LLC, CHALLENGER AFFIRMATION IN
PROPERTIES, LLC and NEW YORK SMSA LIMITED SUPPORT
PARTNERSHIP d/b/a VERIZON WIRELESS,
Defendants,
een em Re en ee tate ie
MAJESTIC REALTY ASSOCIATES LLC, CHALLENGER
PROPERTIES, LLC,
Third-Party Plaintiff, Index No.: 590222/13
-against-
NEW YORK. SMSA LIMITED PARTNERSHIP d/b/a
VERIZON WIRELESS,
Third-Party Defendant.
-
NEW YORK SMSA LIMITED PARTNERSHIP d/b/a
VERIZON WIRELESS,
Second Third-Party Plaintiff, Index No.: 590399/13
-against-
RED WING ELECTRIC, LLC.,
Second Third-Party Defendant,
naan panna anne ene)
KAREN MANISCALCO, an attorney duly admitted to practice law before the Courts of
the State of New York, hereby affirms the following under the penalties of perjury pursuant to
CPLR §2106:
1) I am an attorney associated with the LAW OFFICE OF SAFRANEK,
KM/13~1380/Notice of Motion & Affirmation in Support
COHEN & KROLIAN, attorneys for second third-party defendant RED WING ELECTRIC,
LLC, (“RED WING”), in the above captioned matter and, as such, I am fully familiar with the
facts and circumstances of this action based upon a review of the file maintained by this office.
2) This affirmation is made in support of RED WING’s motion to dismiss the
second third-party complaint pursuant to CPLR §3211 or in the alternative, to sever the second
third-party complaint from the main action pursuant to CPLR §1010 or in the alternative to
extend the time for second third-party defendant Red Wing to file a motion for summary
judgment.
3) This is a Labor Law §200, 240, and 241(6) action brought by plaintiff for
an alleged work related accident that occurred on November 7, 2009 on the roof of the premises
located at 226 East 54 Street, New York, NY 10002. Plaintiff alleges that he tripped and fell
while he was traversing a set of pre-existing permanent steel steps that were erected on NEW
YORK SMSA LIMITED PARTNERSHIP d/b/a VERIZON WIRELESS’ (“VERIZON”)
platform. Plaintiff alleges that he was caused to fall because one of the steel steps was loose. It
is uncontroverted that entities other than RED WING installed and maintained the subject steps.
PROCEDURAL HISTORY
4) On or around June 19, 2012 plaintiff filed a summons and complaint
against MAJESTIC REALTY LLC (“MAJESTIC”) and CHALLENGER PROPERTIES LLC.
(“CHALLENGER”) Annexed hereto as Exhibit “A” is a copy of the summons and complaint.
5) On March 13, 2013, defendants MAJESTIC and CHALLENGER
commenced a third-party action against NEW YORK SMSA LIMITED PARTNERSHIP d/b/a
VERIZON WIRELESS (“VERIZON”). Annexed hereto as Exhibit “B” is a copy of the third-
KM/13~-1380/Notice of Motion & Affirmation in Support
party summons and complaint.
6) On March 14, 2013, plaintiff served a supplemental summons and
amended complaint naming VERIZON as a direct defendant. Annexed hereto as Exhibit “C” is
a copy of same.
7D On or about April 30, 2013, VERIZON commenced a second-third party
action against RED WING. Annexed hereto as Exhibit “D” is a copy of the second third-party
summons and complaint.
8) On or around July 8, 2013, RED WING interposed its answer. Annexed
hereto as Exhibit “E” is a copy RED WING’s answer.
9) In addition to serving its answer, RED WING also served discovery
demands upon all parties as part of its answer packet.
10) As part of the aforementioned packet, RED WING served a separate
demand for discovery and inspection which among other items, demanded copies of deposition
transcripts of all party and non-party witnesses. Annexed hereto as Exhibit “F” is a copy of that
demand.
11) In or around July 8, 2013, the undersigned contacted Deborah Bass,
counsel for VERIZON in order to determine the legal basis for the second-third party complaint.
During the conversation, Ms. Bass acknowledged that the action against RED WING should be
discontinued since the indemnification language contained in the contract between VERIZON
and RED WING was narrow as it was conditioned upon “resulting in whole or part from the acts
or omissions of the Contractor” language. As stated in the above paragraphs RED WING did not
install or maintain the subject steps. Further, Ms. Bass acknowledged that VERIZON'S common
law negligence claim is not viable as RED WING was plaintiff's employer and plaintiff did not
KM/13-1380/Notice of Motion & Affirmation in Support
sustain a grave injury. Ms. Bass assured the undersigned that she would recommend to her
carrier that the second third-party action be discontinued.
12) On October 24, 2013, the parties appeared before your Honor for a
compliance conference, This was the first and only conference that was held since RED WING
was impleaded into the action. Once again, Ms. Bass made representations that she would
recommend to her carrier that the second third-party action be discontinued. At the conference,
the Court Ordered among other items that plaintiff and defendants MAJESTIC and
CHALLENGER respond to RED WING’s discovery demands dated July 8, 2013 in 30 days; that
all parties provide RED WING with copies of the prior transcripts within 30 days and that the
deposition of VERIZON’s second witness Michae] Brennan to be held on November 14, 2013.
Red wing reserved its right to re-depose the parties if after it had an opportunity to review the
prior transcripts it deemed necessary to do so. The Court also Ordered that “Post NOI discovery
shall be completed within 60 days of the NOI (11/15/13)”. Annexed hereto as Exhibit “G” is a
copy of the compliance conference Order.
13) On October 24, 2013, plaintiff fited his Note of Issue. Annexed hereto as
Exhibit “H” is a copy of the Note of Issue,
14) On November 13, 2013, my office contacted the parties in order to
determine whether the deposition of VERIZON’s Michael Brennan was going forward. We
were told that it was not. No adjourned date for the deposition was scheduled.
15) On January 8, 2014, the undersigned sent a good faith letter regarding
outstanding discovery to RED WING’s aforementioned demands (including deposition
transcripts) and the non-compliance with the Court’s Order of October 24, 2013. Annexed
hereto as Exhibit “I” is a copy of said letter.
HW/13-1380/Notice of Motion & Affirmation in Support
16) In and around this time, the undersigned contacted Ms. Bass on several
occasions in an attempt obtain the aforementioned stipulation of discontinuance of the second
third-party action and to obtain a copy of the deposition transcript of VERIZON’s first
deposition witness Michael Quagliotta which was conducted on October 23, 2013. During those
telephone calls, the undersigned was informed that Ms. Bass was on vacation and then was told
Ms. Bass was in the hospital. During one of these telephone conversations, I left a message for
Ms. Bass’ partner Mr. Siff. Mr. Siff promptly returned my telephone call and stated that I would
need to speak to Ms. Bass about the aforementioned issues.
17) On January 16, 2014, at approximately 4 p.m., the undersigned’s office
received a telephone call informing us that the deposition of Michael Brennan was proceeding
the following morning. At no time prior to this telephone call was this office even contacted
about proposed available deposition dates. Nonetheless, we appeared for and participated in the
deposition the following day without the benefit of plaintiff's deposition transcript, the
deposition transcript of VERIZON’s witness, Michael Quagliotta and the deposition transcript of
Mr. Ramin Shalom witness for defendants MAJESTIC and CHALLENGER since Mr. Shalom’s
transcript was not received by this Office until January 15" or 16".
18) It is important to note that even though RED WING appeared in the action
and served discovery demands on all of the parties, this office was never contacted by either
telephone, email or through any other written correspondence that the aforementioned
depositions were being held.
19) On the morning of Mr. Brennan’s deposition but prior to the
commencement of testimony, the undersigned spoke to plaintiff's counsel and counsel for
VERIZON regarding outstanding discovery issues including copies of the deposition transcripts
KM/13 -1380/Notice of Motion & Affirmation in Support
and the stipulation of discontinuance of the second third-party action. Plaintiff's counsel stated
that his office would send me the transcripts and counsel for VERIZON stated that I needed to
speak to Ms. Bass regarding the deposition transcript of Mr. Quagliotta and the stipulation of
discontinuance.
20) Recently, the undersigned was finally able to speak to Ms. Bass. During
our conversation, Ms. Bass stated that Sedgwich Claims, the Third-Party Administrator for
VERIZON, would not allow her to discontinue the second third-party action as against RED
WING. When the undersigned asked Ms. Bass why copy of Mr. Quagliotta’s deposition
transcript was not forwarded to this office, Ms. Bass denied that she received a copy of it same
from plaintiffs counsel. Ms. Bass’ representations are quite interesting since Mr. Mascolo,
counsel for defendants MAJESTIC and CHALLENGER was served with a copy of Mr.
Quagliotta’s deposition transcript. Mr. Mascolo even sent Ms. Bass a letter requesting that she
send back an executed copy of the aforementioned transcript. Annexed hereto as Exhibit “J” is
a copy of the letter which was attached to defendants MAJESTIC’s and CHALLENGER’s
motion for summary judgment which is currently pending before this Court.
21) On February 5, 2014, more than 3 months after the October 24, 2013
order, plaintiff finally provided responses to RED WING’s discovery demands. However,
plaintiff did not provide this office with one single authorization for any medical, prior
employment or any other type of record necessary for the defense of this matter. In his response
to RED WING’s demands, plaintiff's counsel referenced providing the aforementioned
authorizations to the parties prior to the commencement of the second third-party action against
RED WING and, as such, RED WING, these and other demanded authorizations were not
provided to this office.
KM/13~1380/Notice of Motion & Affirmation in Support
22) As demonstrated above, RED WING was never informed of and did not
have the opportunity to participate in the depositions of the parties. Further, RED WING was
not provided with the deposition transcripts of the parties’ respective witness until recently
despite: this Court’s Order to do within 30 days of the October 24, 2013 Order; RED WING’S
demand for transcripts dated July 8, 2013; the undersigned’s good faith correspondence to
plaintiff's counsel on January 8, 2014 and the numerous telephone calls to Ms. Bass’ office.
Consequently, RED WING’s ability to adequately defend itself has been severely hindered. Due
to the extensive delay by the parties in this action, none of which was caused by RED WING and
the conscious exclusion of RED WING during the discovery process by defendant/ second third-
party plaintiff VERIZON, RED WING’s rights were severely prejudiced as it did not receive the
required transcripts (plaintiff and Mr. Quagliotta of VERIZON) until the deadline for motions for
summary judgment passed.
23) This Court is authorized to dismiss or sever a third-party action, upon
considering “whether the controversy between the third-party plaintiff and the third —party
defendant will unduly delay the determination of the main action or prejudice the substantial
right of any party”. See CPLR §1010; Vigliaroio v. Sea Crest Constr. Corp., 16 A.D. 3d 409,
791 N.Y.S, 2d (2™ Dept).
24) As demonstrated above, RED WING’s rights were substantially
prejudiced. Further, RED WING reserved its right to re-depose the parties once received and had
an opportunity to review them. Should RED WING decide to exercise their right to do so, then
the main action may be delayed.
25) Pursuant to CPLR §1010 and Vigliarolo, RED WING is entitled to a
dismissal of the second third-party action. Should the Court not be inclined to dismiss the action,
KM/13-1380/Notice of Motion & Affirmation in Support
then, in the alternative, RED WING respectfully requests that the second third-party action be
severed from the main action and/or that it be given an extension of time nunc pro tunc to file a
motion for summary judgment.
WHEREFORE, based upon the foregoing, RED WING respectfully requests that
the instant motion be GRANTED.
Respectfully yours,
r Ch iecre6d’
aren Maniscaléo, Esq.
LAW OFFICES OF SAFRANEK,
COHEN & KROLIAN
Attorneys for Defendant
RED WING ELECTRIC, LLC
One Water Street
White Plains, New York 10601
(914) 997-0072
KM/13 -1380/Notice of Motion & Affirmation in Support
Preview
INDEX NO. 153809/2012 FILED: NEW YORK COUNTY CLERK 03711/2014 NYSCEF DOC. NO. 109 RECEIVED NYSCEF 3/11/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ee eater RR RR PATRICK KEEN, Index #: 153809/12 Plaintiff, -against- MAJESTIC REALTY ASSOCIATES LLC, CHALLENGER, PROPERTIES, LLC and NEW YORK SMSA LIMITED NOTICE OF PARTNERSHIP d/b/a VERIZON WIRELESS, MOTION Defendants, MAJESTIC REALTY ASSOCIATES LLC, CHALLENGER PROPERTIES, LLC, Third-Party Plaintiff, -against- Index No.: 590222/13 NEW YORK SMSA LIMITED PARTNERSHIP d/b/a VERIZON WIRELESS, Third-Party Defendant. nnn nee nent NEW YORK SMSA LIMITED PARTNERSHIP d/b/a VERIZON WIRELESS, Second Third-Party Plaintiff, -against- RED WING ELECTRIC, LLC, Index No.: 590399/13 Second Third-Party Defendant, eee ntact anne anne nee neta, PLEASE TAKE NOTICE that a motion will be made as follows: MOTION BY: LAW OFFICES OF SAFRANEK, COHEN & KROLIAN Attorneys for Defendant RED WING ELECTRIC, LLC One Water Street White Plains, New York 10601 DATE/TIME/PLACE April 11, 2014 9:30 a.m., Motion Support, Room 130, 60 Centre Street, New York, NY 10004 OPPOSITION COUNSEL: Bader Yakaitis & Nonnenmacher, LLP Attomeys for Plaintiff 1430 Broadway, Ste. 1802 ¥OV/13-1380/Notice of Motion & Affirmation in Support New York, NY 10018 Kaufman Borgeest & Ryan, LLP Attorneys for Defendant/Third-Party Plaintiffs Majestic Realty Associates LLC and Challenger Properties, LLC 120 Broadway, 14th Floor New York, New York 10271 Ledy-Gurren, Bass & Siff, LLP Attorneys for Defendant/Third-Party Defendant New York SMSA Limited Partnership D/B/A Verizon Wireless 475 Park Avenue South, 27" Floor New York, NY 10016 SUPPORTING PAPERS: Affirmation of Karen Maniscalco, Esq., March 11, 2014, Good Faith Affirmation of March 11, 2014, and other supporting exhibits RELIEF SOUGHT: 1) An Order to dismiss the second third-party complaint pursuant to CPLR §3211; or in the alternative, an Order to sever the second third-party complaint from the main action pursuant to CPLR §1010 or, in the alternative, an Order extending the time nunc pro tunc to file a motion for summary judgment. 2) GRANTING, such other and further relief as this Court deems just and proper. PLEASE TAKE FURTHER NOTICE, that pursuant to Rule 2214(b), all answering affidavits, if any, are required to be served at least seven (7) days prior to the return date of this motion. Dated: White Plains, New York March 11, 2014 Respectfully yours, + Karen Maniscalco, Esq. LAW OFFICES OF SAFRANEK, COHEN & KROLIAN Attorneys for Defendant RED WING ELECTRIC, LLC One Water Street White Plains, New York 10601 (914) 997-0072 KM/13-1380/Notice of Motion & Affirmation in Support To: Eric L. Horn, Esq Bader Yakaitis & Nonnenmacher, LLP Attorneys for Plaintiff 1430 Broadway, Ste. 1802 New York, NY 10018 Kaufman Borgeest & Ryan, LLP Attorneys for Defendant/Third-Party Plaintiffs Majestic Realty Associates LLC and Challenger Properties, LLC 120 Broadway, 14th Floor New York, New York 10271 Ledy-Gurren, Bass & Siff, LLP Attorneys for Defendant/Third-Party Defendant New York SMSA Limited Partnership D/B/A Verizon Wireless 475 Park Avenue South, 27 Floor New York, NY 10016 KN/13 - 138 0/Notice of Motion & Affirmation in Support SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK wenn nent en emenngneene ene ne PATRICK KEEN, Index #: 153809/12 Plaintiff, -against- MAJESTIC REALTY ASSOCIATES LLC, CHALLENGER AFFIRMATION IN PROPERTIES, LLC and NEW YORK SMSA LIMITED SUPPORT PARTNERSHIP d/b/a VERIZON WIRELESS, Defendants, een em Re en ee tate ie MAJESTIC REALTY ASSOCIATES LLC, CHALLENGER PROPERTIES, LLC, Third-Party Plaintiff, Index No.: 590222/13 -against- NEW YORK. SMSA LIMITED PARTNERSHIP d/b/a VERIZON WIRELESS, Third-Party Defendant. - NEW YORK SMSA LIMITED PARTNERSHIP d/b/a VERIZON WIRELESS, Second Third-Party Plaintiff, Index No.: 590399/13 -against- RED WING ELECTRIC, LLC., Second Third-Party Defendant, naan panna anne ene) KAREN MANISCALCO, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following under the penalties of perjury pursuant to CPLR §2106: 1) I am an attorney associated with the LAW OFFICE OF SAFRANEK, KM/13~1380/Notice of Motion & Affirmation in Support COHEN & KROLIAN, attorneys for second third-party defendant RED WING ELECTRIC, LLC, (“RED WING”), in the above captioned matter and, as such, I am fully familiar with the facts and circumstances of this action based upon a review of the file maintained by this office. 2) This affirmation is made in support of RED WING’s motion to dismiss the second third-party complaint pursuant to CPLR §3211 or in the alternative, to sever the second third-party complaint from the main action pursuant to CPLR §1010 or in the alternative to extend the time for second third-party defendant Red Wing to file a motion for summary judgment. 3) This is a Labor Law §200, 240, and 241(6) action brought by plaintiff for an alleged work related accident that occurred on November 7, 2009 on the roof of the premises located at 226 East 54 Street, New York, NY 10002. Plaintiff alleges that he tripped and fell while he was traversing a set of pre-existing permanent steel steps that were erected on NEW YORK SMSA LIMITED PARTNERSHIP d/b/a VERIZON WIRELESS’ (“VERIZON”) platform. Plaintiff alleges that he was caused to fall because one of the steel steps was loose. It is uncontroverted that entities other than RED WING installed and maintained the subject steps. PROCEDURAL HISTORY 4) On or around June 19, 2012 plaintiff filed a summons and complaint against MAJESTIC REALTY LLC (“MAJESTIC”) and CHALLENGER PROPERTIES LLC. (“CHALLENGER”) Annexed hereto as Exhibit “A” is a copy of the summons and complaint. 5) On March 13, 2013, defendants MAJESTIC and CHALLENGER commenced a third-party action against NEW YORK SMSA LIMITED PARTNERSHIP d/b/a VERIZON WIRELESS (“VERIZON”). Annexed hereto as Exhibit “B” is a copy of the third- KM/13~-1380/Notice of Motion & Affirmation in Support party summons and complaint. 6) On March 14, 2013, plaintiff served a supplemental summons and amended complaint naming VERIZON as a direct defendant. Annexed hereto as Exhibit “C” is a copy of same. 7D On or about April 30, 2013, VERIZON commenced a second-third party action against RED WING. Annexed hereto as Exhibit “D” is a copy of the second third-party summons and complaint. 8) On or around July 8, 2013, RED WING interposed its answer. Annexed hereto as Exhibit “E” is a copy RED WING’s answer. 9) In addition to serving its answer, RED WING also served discovery demands upon all parties as part of its answer packet. 10) As part of the aforementioned packet, RED WING served a separate demand for discovery and inspection which among other items, demanded copies of deposition transcripts of all party and non-party witnesses. Annexed hereto as Exhibit “F” is a copy of that demand. 11) In or around July 8, 2013, the undersigned contacted Deborah Bass, counsel for VERIZON in order to determine the legal basis for the second-third party complaint. During the conversation, Ms. Bass acknowledged that the action against RED WING should be discontinued since the indemnification language contained in the contract between VERIZON and RED WING was narrow as it was conditioned upon “resulting in whole or part from the acts or omissions of the Contractor” language. As stated in the above paragraphs RED WING did not install or maintain the subject steps. Further, Ms. Bass acknowledged that VERIZON'S common law negligence claim is not viable as RED WING was plaintiff's employer and plaintiff did not KM/13-1380/Notice of Motion & Affirmation in Support sustain a grave injury. Ms. Bass assured the undersigned that she would recommend to her carrier that the second third-party action be discontinued. 12) On October 24, 2013, the parties appeared before your Honor for a compliance conference, This was the first and only conference that was held since RED WING was impleaded into the action. Once again, Ms. Bass made representations that she would recommend to her carrier that the second third-party action be discontinued. At the conference, the Court Ordered among other items that plaintiff and defendants MAJESTIC and CHALLENGER respond to RED WING’s discovery demands dated July 8, 2013 in 30 days; that all parties provide RED WING with copies of the prior transcripts within 30 days and that the deposition of VERIZON’s second witness Michae] Brennan to be held on November 14, 2013. Red wing reserved its right to re-depose the parties if after it had an opportunity to review the prior transcripts it deemed necessary to do so. The Court also Ordered that “Post NOI discovery shall be completed within 60 days of the NOI (11/15/13)”. Annexed hereto as Exhibit “G” is a copy of the compliance conference Order. 13) On October 24, 2013, plaintiff fited his Note of Issue. Annexed hereto as Exhibit “H” is a copy of the Note of Issue, 14) On November 13, 2013, my office contacted the parties in order to determine whether the deposition of VERIZON’s Michael Brennan was going forward. We were told that it was not. No adjourned date for the deposition was scheduled. 15) On January 8, 2014, the undersigned sent a good faith letter regarding outstanding discovery to RED WING’s aforementioned demands (including deposition transcripts) and the non-compliance with the Court’s Order of October 24, 2013. Annexed hereto as Exhibit “I” is a copy of said letter. HW/13-1380/Notice of Motion & Affirmation in Support 16) In and around this time, the undersigned contacted Ms. Bass on several occasions in an attempt obtain the aforementioned stipulation of discontinuance of the second third-party action and to obtain a copy of the deposition transcript of VERIZON’s first deposition witness Michael Quagliotta which was conducted on October 23, 2013. During those telephone calls, the undersigned was informed that Ms. Bass was on vacation and then was told Ms. Bass was in the hospital. During one of these telephone conversations, I left a message for Ms. Bass’ partner Mr. Siff. Mr. Siff promptly returned my telephone call and stated that I would need to speak to Ms. Bass about the aforementioned issues. 17) On January 16, 2014, at approximately 4 p.m., the undersigned’s office received a telephone call informing us that the deposition of Michael Brennan was proceeding the following morning. At no time prior to this telephone call was this office even contacted about proposed available deposition dates. Nonetheless, we appeared for and participated in the deposition the following day without the benefit of plaintiff's deposition transcript, the deposition transcript of VERIZON’s witness, Michael Quagliotta and the deposition transcript of Mr. Ramin Shalom witness for defendants MAJESTIC and CHALLENGER since Mr. Shalom’s transcript was not received by this Office until January 15" or 16". 18) It is important to note that even though RED WING appeared in the action and served discovery demands on all of the parties, this office was never contacted by either telephone, email or through any other written correspondence that the aforementioned depositions were being held. 19) On the morning of Mr. Brennan’s deposition but prior to the commencement of testimony, the undersigned spoke to plaintiff's counsel and counsel for VERIZON regarding outstanding discovery issues including copies of the deposition transcripts KM/13 -1380/Notice of Motion & Affirmation in Support and the stipulation of discontinuance of the second third-party action. Plaintiff's counsel stated that his office would send me the transcripts and counsel for VERIZON stated that I needed to speak to Ms. Bass regarding the deposition transcript of Mr. Quagliotta and the stipulation of discontinuance. 20) Recently, the undersigned was finally able to speak to Ms. Bass. During our conversation, Ms. Bass stated that Sedgwich Claims, the Third-Party Administrator for VERIZON, would not allow her to discontinue the second third-party action as against RED WING. When the undersigned asked Ms. Bass why copy of Mr. Quagliotta’s deposition transcript was not forwarded to this office, Ms. Bass denied that she received a copy of it same from plaintiffs counsel. Ms. Bass’ representations are quite interesting since Mr. Mascolo, counsel for defendants MAJESTIC and CHALLENGER was served with a copy of Mr. Quagliotta’s deposition transcript. Mr. Mascolo even sent Ms. Bass a letter requesting that she send back an executed copy of the aforementioned transcript. Annexed hereto as Exhibit “J” is a copy of the letter which was attached to defendants MAJESTIC’s and CHALLENGER’s motion for summary judgment which is currently pending before this Court. 21) On February 5, 2014, more than 3 months after the October 24, 2013 order, plaintiff finally provided responses to RED WING’s discovery demands. However, plaintiff did not provide this office with one single authorization for any medical, prior employment or any other type of record necessary for the defense of this matter. In his response to RED WING’s demands, plaintiff's counsel referenced providing the aforementioned authorizations to the parties prior to the commencement of the second third-party action against RED WING and, as such, RED WING, these and other demanded authorizations were not provided to this office. KM/13~1380/Notice of Motion & Affirmation in Support 22) As demonstrated above, RED WING was never informed of and did not have the opportunity to participate in the depositions of the parties. Further, RED WING was not provided with the deposition transcripts of the parties’ respective witness until recently despite: this Court’s Order to do within 30 days of the October 24, 2013 Order; RED WING’S demand for transcripts dated July 8, 2013; the undersigned’s good faith correspondence to plaintiff's counsel on January 8, 2014 and the numerous telephone calls to Ms. Bass’ office. Consequently, RED WING’s ability to adequately defend itself has been severely hindered. Due to the extensive delay by the parties in this action, none of which was caused by RED WING and the conscious exclusion of RED WING during the discovery process by defendant/ second third- party plaintiff VERIZON, RED WING’s rights were severely prejudiced as it did not receive the required transcripts (plaintiff and Mr. Quagliotta of VERIZON) until the deadline for motions for summary judgment passed. 23) This Court is authorized to dismiss or sever a third-party action, upon considering “whether the controversy between the third-party plaintiff and the third —party defendant will unduly delay the determination of the main action or prejudice the substantial right of any party”. See CPLR §1010; Vigliaroio v. Sea Crest Constr. Corp., 16 A.D. 3d 409, 791 N.Y.S, 2d (2™ Dept). 24) As demonstrated above, RED WING’s rights were substantially prejudiced. Further, RED WING reserved its right to re-depose the parties once received and had an opportunity to review them. Should RED WING decide to exercise their right to do so, then the main action may be delayed. 25) Pursuant to CPLR §1010 and Vigliarolo, RED WING is entitled to a dismissal of the second third-party action. Should the Court not be inclined to dismiss the action, KM/13-1380/Notice of Motion & Affirmation in Support then, in the alternative, RED WING respectfully requests that the second third-party action be severed from the main action and/or that it be given an extension of time nunc pro tunc to file a motion for summary judgment. WHEREFORE, based upon the foregoing, RED WING respectfully requests that the instant motion be GRANTED. Respectfully yours, r Ch iecre6d’ aren Maniscaléo, Esq. LAW OFFICES OF SAFRANEK, COHEN & KROLIAN Attorneys for Defendant RED WING ELECTRIC, LLC One Water Street White Plains, New York 10601 (914) 997-0072 KM/13 -1380/Notice of Motion & Affirmation in Support