Preview
FILED: NEW YORK COUNTY CLERK 07/13/2020 05:22 PM INDEX NO. 651602/2020
NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 07/13/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
x
CAROLYN DISBROW,
AFFIRMATION
Plaintiff, IN OPPOSITION
-against- Index No.: 651602/2020
THE NORMANDIE CONDOMINIUM, THE
BOARD OF MANAGERS OF THE NORMANDIE
CONDOMINIUM, METRO MANAGEMENT &
DEVELOPMENT, INC., GLOBAL SOLUTIONS
APPLIANCE REPAIR INC., GLOBAL
SOLUTIONS APPLIANCE REPAIR NYC LLC,
HADAS A. JACOBI, BRIAN STRONG, AND
KERI STRONG,
Defendants.
x
PAUL F. LAGATTUTA III, an attorney duly admitted to practice law before the Courts of
the State of New York, affirms the truth of the following, upon information and belief, under the
penalties of perjury:
1. I am an member of the law firm of FIXLER & LAGATTUTA, LLP, attorneys for
the defendants, THE NORMANDIE CONDOMINIUM, THE BOARD OF MANAGERS OF THE
NORMANDIE CONDOMINIUM and METRO MANAGEMENT & DEVELOPMENT, INC.
(hereafter referred to collectively as "NORMANDIE") and, as such, I am fully familiar with the
facts and circumstances heretofore had herein pursuant to a review of the file maintained in this
office.
2. I submit this affirmation in opposition to defendant's, HADAS JACOBI (hereafter
"JACOBI"), motion for an order dismissing the cross-claims by NORMANDI as against JACOBI
pursuant to CPLR 321l(a)(7) for failure to state a cause of action.
3. In the interest of judicial economy, NORMANDI adopts and incorporates by
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references the arguments offered by defendants, BRIAN STRONG and KERI STRONG (hereafter
collectively referred to as "STRONGS") in their Affirmation in Opposition to JACOBI's motion
STRONGS'
to dismiss cross-claims for similar reasons. The Affirmation in Opposition and
"A"
supporting exhibits served by STRONGS are annexed hereto as Exhibit and are adopted and
incorporated into this Affirmation in Opposition as if fully set forth herein.
STRONGS'
4. JACOBI's motion to dismiss cross-claims is also annexed hereto as
Exhibit "B".
5. It appears that the subject refrigerator malfunctioned at a time when the duty and
responsibility to maintain same was vested in JACOBI and/or STRONGS or both collectively. It
appears that JACOBI had actual notice of the issue with the subject refrigerator, failed to act
reasonably and as a result of JACOBI's actions/inactions, the alleged leak occurred damaging
plaintiff's condominium unit.
6. The Declaration of Condominium for NORMANDIE states in the Third Article §
(f)(i) that:
Each Unit includes, and each Unit Owner shall be responsible for any doors to
or within such Unit (other than the front entrance door), smoke detectors, for
cleaning purposes the exterior glass surfaces of all windows, allplumbing, gas and
heating fixtures and equipment such as refrigerators, dishwashers, heating,
(" HVAC"
ventilating and air conditioning ) units (including the fans inside the air
conditioning units), heating equipment, ranges and other appliances, as may be
affixed, attached or appurtenant to such Unit and serving such Unit exclusively.
Plumbing, gas and heating fixtures and equipment as used in the précidiiig
sentence shall include exposed gas and water pipes from branch or fixture shut-
off valves attached to fixtures, eppH-ces and equipiricist and the fixtures,
appliances and equipment to which they are attached, and any special pipes or
equipirietit which a Unit Owner may install within a wall or ceiling, or under the
floor, but (subject to the following sentence) shall not include gas, water or other
pipes, conduits, wiring or ductwork within the walls, ceilings or floors. Each Unit
shall also include (i) all lighting and electrical fixtures and appliances within the
Unit, (ii) any special equipment or fixtures affixed, attached or appurtenant to the
Unit, and (iii)any wiring for such appliances or fixtures to the extent that such
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wiring runs from a panel or junction box serving or benefiting only that Unit. The
front entrance doors to Units shall be deemed Residential Limited Common
Elements (as described further in this Declaration), but a Unit Owner will
nevertheless be responsible for repairing and maintaining the interior surface of the
front entrance door to the Unit, and any locks, bells or peepholes within the front
entrance door. Notwithstanding anything contained in this Article to the contrary,
each Unit Owner will have the right, exercisable at any time, to install, at such Unit
Owner's sole cost and expense, decorations, fixtures and coverings (including,
without limitation, painting, finishing, wallpaper, carpeting, pictures, mirrors,
shelving and lighting fixtures) on the surfaces of the walls, ceilings and floors that
face the interior of such Unit Owner's Unit and to a depth of one inch behind such
surfaces for the purposes of installing nails, screws, bolts and the like,provided that
no such installation shall impair the structural integrity and mechanical and
electrical systems of such Unit of the Building.
See, Declaration of Condominium and By-Laws collectively annexed hereto as Exhibit "C".
7. It appears that as of the date of this alleged incident, JACOBI retained the duties
and responsibilities of a condominium unit owner and assumed all ofthe duties and responsibilities
of the owner of said unit. See, Exhibit "B(C)".
8. JACOBI ultimately paid for the repairs and ultimately for the replacement of the
refrigerator itself Additionally, STRONGS suggest that JACOBI had notice of a leaking issue
that occurred from the refrigerator in her unit, that JACOBI failed to disclose the defect and did
not act reasonably. See, Exhibit "A(C)".
9. JACOBI was subject to a post-closing occupancy agreement that was in effect until
May 31, 2018. JACOBI had assumed all duties for the maintenance and repairs of the subject unit
where the leak originated on May 25, 2018. See, Exhibit "B(C)". Additionally, JACOBI had
assumed the obligation to maintain all appliances, including the refrigerator in question, in working
order. See, Exhibit "A(A)".
10. On the date of loss, JACOBI had access and control over the premises and a duty
to maintain the subject refrigerator in working order. Additionally, JACOBI had to obligation
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provide a refrigerator in working order as stated in both the sale contract and post-sale occupancy
agreement. JACOBI had the obligation to address any plumbing issues as well. See, Exhibit
"A(A)"
and Exhibit "B(A)".
11. Essentially, NORMANDIE's cross-claims against JACOBI are based on her duties
and responsibilities pursuant to the Declaration of Condominium, By-Laws, Closing Agrccmcñt
and Post-Closing Occupancy Agreement.
12. It is clear that NORMANDIE is a third-party beneficiary of the Post-Closing
Occupancy Agreement based on the fact that JACOBI agreed to defend and indemnify STRONGS
for this type of loss and subjected herself to the terms and conditions of the Declaration of
Condominium and By-Laws. It is also clear that NORMANDI did not have any involvement,
whatsoever, with respect to the ownership, operation, maintenance and repair of the subject
refrigerator.
13. It iswell-established that a defendant may seek contribution from a third party even
if the injured plaintiff has no direct right of recovery against that party, either because of a
procedural bar or because of a substantive legal rule. Klinger v. Dudley, 41 N.Y.2d 362 (2009);
Dole v. Dow Chem. Co., 30 N.Y.2d 143 (1972). A contribution claim can be made even when the
contributor has no duty to the injured plaintiff. Sommer v. Federal Signal Coro., 79 N.Y.2d 540
(1992); Garrett v. Holiday Inns, 58 N.Y.2d 253 (1983). In such situations, a claim
of contribution may be asserted ifthere has been a breach of a duty that runs from the contributor
to the defendant who has been held liable. See, Guzman v. Haven Plaza Hous. Dev. Fund Co., 69
N.Y.2d 559 (1987); Garrett v. Holiday Inns, supra; Nolechek v. Gesuale, 46 N.Y.2d 332 (1978)
requirement"
14. The "critical for apportionment by contribution under CPLR article
14 is that "the breach of duty by the contributing party must have had a part in causing or
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augmenting the injury for which contribution is sought". Thus, contribution is available "whether
or not the culpable parties are allegedly liable for the injury under the same or different theories".
Nassau Roofing & Sheet Metal Co. v. Facilities Dev. Coro., 71 N.Y.2d 599 (1988). The remedy
may be invoked against concurrent, successive, independent, alternative and even intentional
tortfeasors. Board of Educ. v Sargent, Webster, Crenshaw & Folley, 71 N.Y.2d 21 (1987).
15. The key element of a common-law cause of action for indemnification is not a duty
running from the indemnitor to the injured party, but rather is "a separate duty owed the indemnitee
by the indemnitor". Mas v. Two Bridges Assocs., 75 N.Y.2d 680 (1990). The duty that forms the
basis for the liability arises from the principle that "everyone is responsible for the consequences
of his own negligence, and ifanother person has been compelled to pay the damages which ought
to have been paid by the wrongdoer, they may be recovered from him". Oceanic Steam Nay. Co.
v. Compania Transatlantica Espanola, 134 N.Y. 461 (1892); McDermott v. City of New York, 50
N.Y.2d 211 (1980).
16. The Court of Appeals has previously recognized causes of action for contribution
or indemnification against parties who were insulated from liability to the injured plaintiff because
of a lack of duty, procedural bars and special defenses. See, Sommer v. Federal Sienal Coro., 79
N.Y.2d 540 (1992); Klinger v. Dudley, et al., 41 N.Y.2d 362 (2009); Dole v. Dow Chem. Co.,
supra.
17. Given these well-established principles, JACOBI's arguments must be rejected.
18. It is undisputed that the owner of the subject condominium unit where the leak
originated was responsible to maintain and repair the waterline that failed. However, it appears
that JACOBI assumed a continued responsibility to maintain said waterline and refrigerator even
after selling her condominium unit.
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19. NORMANDIE's cross-claims against JACOBI clearly state that if plaintiff was
damaged, the cause of the damage was caused by JACOBI and that NORMANDIE is entitled to
an apportionment of liability. Additionally, NORMANDI alleges that itis entitled to contribution
and indemnification against JACOBI for the acts and omissions alleged by plaintiff. See, Exhibit
"A"
annexed to JACOBI Affirmation in Support.
20. It appears that JACOBI has unclean hands and there is an indication that JACOBI
knew about a leaking issue with the subject refrigerator prior to the date of loss. See, Exhibit
"A(C)".
21. Even ifplaintiff's complaint is dismissed against NORMANDIE's cross-
JACOBI,
(ISt
claims must be converted into third-party claims. See, Jones v. NYCHA, 293 A.D.2d 371
Dept. 2002) (although plaintiff's direct claims against defendant have been dismissed, defendant
may still maintain its claims against the entity for indemnification and contribution and they are
deemed converted to third-party claims).
22. When assessing a motion to dismiss for failure to state a cause of action, the court
must afford the pleading a liberal construction, accept as true all facts as alleged in the pleading,
accord the pleader the benefit of every possible inference and determine only whether the facts as
alleged fitwithin any cognizable legal theory. V. Groona Pools. Inc. v. Massello, 106 A.D.3d 722
(2nd
Dept. 2013)
23. CPLR 1401, which codified the decision in Dole v. Dow Chem. Co., supra,
provides that two or more persons who are subject to liability for the same injury to property may
claim contribution among them whether or not an action has been brought or a judgment has been
rendered against the person from whom contribution is sought. It applies not only to joint
tortfeasors, but also to concurrent, successive, independent, alternative and even intentional
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tortfeasors. CPLR 1401; Schauer v. Joyce, 54 N.Y.2d 1 (1981).
24. The materials produced by STRONGS support the cross-claims for contribution,
indemnification and apportionment asserted by NORMANDIE against JACOBI.
25. It is well established that on a motion to dismiss a complaint pursuant to CPLR
321l(a)(7), the standard is not whether the proponent of the pleading has a cause of action, but
ofaction," (2nd
whether the pleading states a cause Sokol v. Leader, 74 A.D.3d 1180 Dept. 2010).
26. NORMANDIE has sufficiently alleged and plead its cross-claims based on the
information that was known at the time they were asserted and they have become more viable
STRONGS'
since the production of the materials annexed to Affirmation in Opposition. See,
Exhibit "A".
27. JACOBI's motion must be denied as NORMANDIE has sufficiently plead and
alleged viable cross-claims against JACOBI. JACOBI is not entitled to dismissal of this action
under CPLR 3211(a)(7) and the motion must be dismissed in itsentirety.
WHEREFORE, it isrespectfully requested that the Court deny JACOBI's motion in its
entirety and further relief as this Court may deem just and proper.
Dated: New York, New York
July 13, 2020
PAUL F. LAGATTUTA II
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FILED: NEW YORK COUNTY CLERK 07/13/2020 05:22 PM INDEX NO. 651602/2020 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 07/13/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x CAROLYN DISBROW, AFFIRMATION Plaintiff, IN OPPOSITION -against- Index No.: 651602/2020 THE NORMANDIE CONDOMINIUM, THE BOARD OF MANAGERS OF THE NORMANDIE CONDOMINIUM, METRO MANAGEMENT & DEVELOPMENT, INC., GLOBAL SOLUTIONS APPLIANCE REPAIR INC., GLOBAL SOLUTIONS APPLIANCE REPAIR NYC LLC, HADAS A. JACOBI, BRIAN STRONG, AND KERI STRONG, Defendants. x PAUL F. LAGATTUTA III, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the truth of the following, upon information and belief, under the penalties of perjury: 1. I am an member of the law firm of FIXLER & LAGATTUTA, LLP, attorneys for the defendants, THE NORMANDIE CONDOMINIUM, THE BOARD OF MANAGERS OF THE NORMANDIE CONDOMINIUM and METRO MANAGEMENT & DEVELOPMENT, INC. (hereafter referred to collectively as "NORMANDIE") and, as such, I am fully familiar with the facts and circumstances heretofore had herein pursuant to a review of the file maintained in this office. 2. I submit this affirmation in opposition to defendant's, HADAS JACOBI (hereafter "JACOBI"), motion for an order dismissing the cross-claims by NORMANDI as against JACOBI pursuant to CPLR 321l(a)(7) for failure to state a cause of action. 3. In the interest of judicial economy, NORMANDI adopts and incorporates by 1 of 7 FILED: NEW YORK COUNTY CLERK 07/13/2020 05:22 PM INDEX NO. 651602/2020 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 07/13/2020 references the arguments offered by defendants, BRIAN STRONG and KERI STRONG (hereafter collectively referred to as "STRONGS") in their Affirmation in Opposition to JACOBI's motion STRONGS' to dismiss cross-claims for similar reasons. The Affirmation in Opposition and "A" supporting exhibits served by STRONGS are annexed hereto as Exhibit and are adopted and incorporated into this Affirmation in Opposition as if fully set forth herein. STRONGS' 4. JACOBI's motion to dismiss cross-claims is also annexed hereto as Exhibit "B". 5. It appears that the subject refrigerator malfunctioned at a time when the duty and responsibility to maintain same was vested in JACOBI and/or STRONGS or both collectively. It appears that JACOBI had actual notice of the issue with the subject refrigerator, failed to act reasonably and as a result of JACOBI's actions/inactions, the alleged leak occurred damaging plaintiff's condominium unit. 6. The Declaration of Condominium for NORMANDIE states in the Third Article § (f)(i) that: Each Unit includes, and each Unit Owner shall be responsible for any doors to or within such Unit (other than the front entrance door), smoke detectors, for cleaning purposes the exterior glass surfaces of all windows, allplumbing, gas and heating fixtures and equipment such as refrigerators, dishwashers, heating, (" HVAC" ventilating and air conditioning ) units (including the fans inside the air conditioning units), heating equipment, ranges and other appliances, as may be affixed, attached or appurtenant to such Unit and serving such Unit exclusively. Plumbing, gas and heating fixtures and equipment as used in the précidiiig sentence shall include exposed gas and water pipes from branch or fixture shut- off valves attached to fixtures, eppH-ces and equipiricist and the fixtures, appliances and equipment to which they are attached, and any special pipes or equipirietit which a Unit Owner may install within a wall or ceiling, or under the floor, but (subject to the following sentence) shall not include gas, water or other pipes, conduits, wiring or ductwork within the walls, ceilings or floors. Each Unit shall also include (i) all lighting and electrical fixtures and appliances within the Unit, (ii) any special equipment or fixtures affixed, attached or appurtenant to the Unit, and (iii)any wiring for such appliances or fixtures to the extent that such 2 of 7 FILED: NEW YORK COUNTY CLERK 07/13/2020 05:22 PM INDEX NO. 651602/2020 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 07/13/2020 wiring runs from a panel or junction box serving or benefiting only that Unit. The front entrance doors to Units shall be deemed Residential Limited Common Elements (as described further in this Declaration), but a Unit Owner will nevertheless be responsible for repairing and maintaining the interior surface of the front entrance door to the Unit, and any locks, bells or peepholes within the front entrance door. Notwithstanding anything contained in this Article to the contrary, each Unit Owner will have the right, exercisable at any time, to install, at such Unit Owner's sole cost and expense, decorations, fixtures and coverings (including, without limitation, painting, finishing, wallpaper, carpeting, pictures, mirrors, shelving and lighting fixtures) on the surfaces of the walls, ceilings and floors that face the interior of such Unit Owner's Unit and to a depth of one inch behind such surfaces for the purposes of installing nails, screws, bolts and the like,provided that no such installation shall impair the structural integrity and mechanical and electrical systems of such Unit of the Building. See, Declaration of Condominium and By-Laws collectively annexed hereto as Exhibit "C". 7. It appears that as of the date of this alleged incident, JACOBI retained the duties and responsibilities of a condominium unit owner and assumed all ofthe duties and responsibilities of the owner of said unit. See, Exhibit "B(C)". 8. JACOBI ultimately paid for the repairs and ultimately for the replacement of the refrigerator itself Additionally, STRONGS suggest that JACOBI had notice of a leaking issue that occurred from the refrigerator in her unit, that JACOBI failed to disclose the defect and did not act reasonably. See, Exhibit "A(C)". 9. JACOBI was subject to a post-closing occupancy agreement that was in effect until May 31, 2018. JACOBI had assumed all duties for the maintenance and repairs of the subject unit where the leak originated on May 25, 2018. See, Exhibit "B(C)". Additionally, JACOBI had assumed the obligation to maintain all appliances, including the refrigerator in question, in working order. See, Exhibit "A(A)". 10. On the date of loss, JACOBI had access and control over the premises and a duty to maintain the subject refrigerator in working order. Additionally, JACOBI had to obligation 3 of 7 FILED: NEW YORK COUNTY CLERK 07/13/2020 05:22 PM INDEX NO. 651602/2020 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 07/13/2020 provide a refrigerator in working order as stated in both the sale contract and post-sale occupancy agreement. JACOBI had the obligation to address any plumbing issues as well. See, Exhibit "A(A)" and Exhibit "B(A)". 11. Essentially, NORMANDIE's cross-claims against JACOBI are based on her duties and responsibilities pursuant to the Declaration of Condominium, By-Laws, Closing Agrccmcñt and Post-Closing Occupancy Agreement. 12. It is clear that NORMANDIE is a third-party beneficiary of the Post-Closing Occupancy Agreement based on the fact that JACOBI agreed to defend and indemnify STRONGS for this type of loss and subjected herself to the terms and conditions of the Declaration of Condominium and By-Laws. It is also clear that NORMANDI did not have any involvement, whatsoever, with respect to the ownership, operation, maintenance and repair of the subject refrigerator. 13. It iswell-established that a defendant may seek contribution from a third party even if the injured plaintiff has no direct right of recovery against that party, either because of a procedural bar or because of a substantive legal rule. Klinger v. Dudley, 41 N.Y.2d 362 (2009); Dole v. Dow Chem. Co., 30 N.Y.2d 143 (1972). A contribution claim can be made even when the contributor has no duty to the injured plaintiff. Sommer v. Federal Signal Coro., 79 N.Y.2d 540 (1992); Garrett v. Holiday Inns, 58 N.Y.2d 253 (1983). In such situations, a claim of contribution may be asserted ifthere has been a breach of a duty that runs from the contributor to the defendant who has been held liable. See, Guzman v. Haven Plaza Hous. Dev. Fund Co., 69 N.Y.2d 559 (1987); Garrett v. Holiday Inns, supra; Nolechek v. Gesuale, 46 N.Y.2d 332 (1978) requirement" 14. The "critical for apportionment by contribution under CPLR article 14 is that "the breach of duty by the contributing party must have had a part in causing or 4 of 7 FILED: NEW YORK COUNTY CLERK 07/13/2020 05:22 PM INDEX NO. 651602/2020 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 07/13/2020 augmenting the injury for which contribution is sought". Thus, contribution is available "whether or not the culpable parties are allegedly liable for the injury under the same or different theories". Nassau Roofing & Sheet Metal Co. v. Facilities Dev. Coro., 71 N.Y.2d 599 (1988). The remedy may be invoked against concurrent, successive, independent, alternative and even intentional tortfeasors. Board of Educ. v Sargent, Webster, Crenshaw & Folley, 71 N.Y.2d 21 (1987). 15. The key element of a common-law cause of action for indemnification is not a duty running from the indemnitor to the injured party, but rather is "a separate duty owed the indemnitee by the indemnitor". Mas v. Two Bridges Assocs., 75 N.Y.2d 680 (1990). The duty that forms the basis for the liability arises from the principle that "everyone is responsible for the consequences of his own negligence, and ifanother person has been compelled to pay the damages which ought to have been paid by the wrongdoer, they may be recovered from him". Oceanic Steam Nay. Co. v. Compania Transatlantica Espanola, 134 N.Y. 461 (1892); McDermott v. City of New York, 50 N.Y.2d 211 (1980). 16. The Court of Appeals has previously recognized causes of action for contribution or indemnification against parties who were insulated from liability to the injured plaintiff because of a lack of duty, procedural bars and special defenses. See, Sommer v. Federal Sienal Coro., 79 N.Y.2d 540 (1992); Klinger v. Dudley, et al., 41 N.Y.2d 362 (2009); Dole v. Dow Chem. Co., supra. 17. Given these well-established principles, JACOBI's arguments must be rejected. 18. It is undisputed that the owner of the subject condominium unit where the leak originated was responsible to maintain and repair the waterline that failed. However, it appears that JACOBI assumed a continued responsibility to maintain said waterline and refrigerator even after selling her condominium unit. 5 of 7 FILED: NEW YORK COUNTY CLERK 07/13/2020 05:22 PM INDEX NO. 651602/2020 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 07/13/2020 19. NORMANDIE's cross-claims against JACOBI clearly state that if plaintiff was damaged, the cause of the damage was caused by JACOBI and that NORMANDIE is entitled to an apportionment of liability. Additionally, NORMANDI alleges that itis entitled to contribution and indemnification against JACOBI for the acts and omissions alleged by plaintiff. See, Exhibit "A" annexed to JACOBI Affirmation in Support. 20. It appears that JACOBI has unclean hands and there is an indication that JACOBI knew about a leaking issue with the subject refrigerator prior to the date of loss. See, Exhibit "A(C)". 21. Even ifplaintiff's complaint is dismissed against NORMANDIE's cross- JACOBI, (ISt claims must be converted into third-party claims. See, Jones v. NYCHA, 293 A.D.2d 371 Dept. 2002) (although plaintiff's direct claims against defendant have been dismissed, defendant may still maintain its claims against the entity for indemnification and contribution and they are deemed converted to third-party claims). 22. When assessing a motion to dismiss for failure to state a cause of action, the court must afford the pleading a liberal construction, accept as true all facts as alleged in the pleading, accord the pleader the benefit of every possible inference and determine only whether the facts as alleged fitwithin any cognizable legal theory. V. Groona Pools. Inc. v. Massello, 106 A.D.3d 722 (2nd Dept. 2013) 23. CPLR 1401, which codified the decision in Dole v. Dow Chem. Co., supra, provides that two or more persons who are subject to liability for the same injury to property may claim contribution among them whether or not an action has been brought or a judgment has been rendered against the person from whom contribution is sought. It applies not only to joint tortfeasors, but also to concurrent, successive, independent, alternative and even intentional 6 of 7 FILED: NEW YORK COUNTY CLERK 07/13/2020 05:22 PM INDEX NO. 651602/2020 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 07/13/2020 tortfeasors. CPLR 1401; Schauer v. Joyce, 54 N.Y.2d 1 (1981). 24. The materials produced by STRONGS support the cross-claims for contribution, indemnification and apportionment asserted by NORMANDIE against JACOBI. 25. It is well established that on a motion to dismiss a complaint pursuant to CPLR 321l(a)(7), the standard is not whether the proponent of the pleading has a cause of action, but ofaction," (2nd whether the pleading states a cause Sokol v. Leader, 74 A.D.3d 1180 Dept. 2010). 26. NORMANDIE has sufficiently alleged and plead its cross-claims based on the information that was known at the time they were asserted and they have become more viable STRONGS' since the production of the materials annexed to Affirmation in Opposition. See, Exhibit "A". 27. JACOBI's motion must be denied as NORMANDIE has sufficiently plead and alleged viable cross-claims against JACOBI. JACOBI is not entitled to dismissal of this action under CPLR 3211(a)(7) and the motion must be dismissed in itsentirety. WHEREFORE, it isrespectfully requested that the Court deny JACOBI's motion in its entirety and further relief as this Court may deem just and proper. Dated: New York, New York July 13, 2020 PAUL F. LAGATTUTA II 7 of 7