Preview
FILED: NEW YORK COUNTY CLERK 10/15/2018 02:57 PM INDEX NO. 154374/2018
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 10/15/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
YVETTE MCCLAMB, Index No. 154374/2018
Motion Sequence No. 1
Plaintiff,
-against-
HOUSING PARTNERSHIP DEVELOPLMENT AFFIRMATION IN OPPOSITION
CORPORATION, KALAHARI CONDOMINIUM,
THE BOARD OF MANAGERS OF KALAHARI
CONDOMINIUM, WALLACK MANAGEMENT
CO., INC., RNC INDUSTRIES, LLC. and WEST
NEW YORK RESTORATION OF CT, Refer: Hon. Lynn R. Kotler, J.S.C. | Part 8
Defendants. Return Date: October 29, 2018
Jeremy A. Hellman, an attorney duly admitted to practice law before the Courts of the State
of New York, affirms the following to be true under penalties of perjury:
1. I am an attorney with the law firm of Rheingold Giuffra Ruffo & Plotkin LLP, attorneys
for Plaintiff YVETTE MCCLAMB in the above-captioned action, and as such I am fully familiar
with all pleadings and proceedings heretofore had herein.
2. I submit this affirmation in opposition to the motion to dismiss of Defendant WEST NEW
YORK RESTORATION OF CT.
3. The motion must be denied because it improperly tries to rebut plaintiff’s complaint pre-
discovery, at a stage in which the entire complaint must be assumed to be true.
4. Among other things, defendant’s motion completely fails to address is plaintiff’s cause and
create the subject hazard. Plaintiff’s complaint alleged, in pertinent part:
50. The foregoing occurrence and resultant injuries to
plaintiff MCCLAMB due to the carelessness, recklessness and
negligence of the defendants … in causing, permitting and allowing
the aforesaid sidewalk to be, become and remain in a broken,
cracked, raised, uneven, worn condition; in causing, permitting
and/or allowing said sidewalk to be, become and remain in a
dangerous, hazardous and trap like condition; in causing, permitting
and/or allowing the aforesaid sidewalk to be, become and remain in
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a broken, hazardous and dangerous condition, thereby creating and
constituting a trap, hazard and tripping condition for persons
lawfully walking thereat; … in causing and creating the aforesaid
dangerous and hazardous condition; … in improperly repairing the
aforesaid place sometime prior to the occurrence …
5. The theory of cause and create is a major theme in plaintiff’s complaint. In response, all
Defendant WEST NEW YORK RESTORATION OF CT can say is that they were not at the
location of incident at the time, which is totally irrelevant to this theory. Regardless of whether
they were present at the time of incident, if they caused the defect previously, they would still be
on the hook.
6. The case of Galardi v. Town of Hempstead, 164 A.D.3d 760 (2nd Dept. 2018) succinctly
and directly discusses the standard at issue, stating:
In considering a motion to dismiss pursuant to CPLR 3211(a)(7),
the court must “ ‘accept the facts as alleged in the complaint [to
be] true, accord plaintiff[ ] the benefit of every possible favorable
inference, and determine only whether the facts as alleged fit
within any cognizable legal theory’ ” (Sokol v. Leader, 74 A.D.3d
1180, 1181, 904 N.Y.S.2d 153, quoting Nonnon v. City of New
York, 9 N.Y.3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720). If
the court considers evidentiary material, a motion to dismiss
pursuant to CPLR 3211(a)(7) must be denied “ ‘unless it has been
shown that a material fact as claimed by the [plaintiff] is not a fact
at all and unless it can be said that no significant dispute exists
regarding it’ ” (Sokol v. Leader, 74 A.D.3d at 1182, 904 N.Y.S.2d
153, quoting Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401
N.Y.S.2d 182, 372 N.E.2d 17). Here, the complaint adequately
pleaded a cause of action to recover damages for negligence
against the defendant, and the affidavits submitted by the
defendant in support of its motion failed to address the plaintiff's
theory of recovery that the defendant created the defective
condition which caused the plaintiff's injuries. Thus, the defendant
failed to demonstrate its entitlement to dismissal (see Cohen v.
Finz & Finz, P.C., 131 A.D.3d 666, 666–667, 16 N.Y.S.3d
70; Comprehensive Mental Assessment & Med. Care, P.C. v.
Gusrae Kaplan Nusbaum, PLLC, 130 A.D.3d 670, 672, 13
N.Y.S.3d 485).
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7. Since plaintiff has alleged cause and create theories, and defendant has done nothing to
rebut them, this motion must be denied without more.
8. Defendant’s motion is further inadequate, even with regard to the other allegations in
plaintiff’s complaint. The Court of Appeals in Nonnon v. City of New York, 9 N.Y.3d 825, 827,
842 N.Y.S.2d 756, 874 N.E.2d 720 (2007) described the applicable standard:
On a CPLR 3211 motion to dismiss, the court will “accept the facts
as alleged in the complaint as true, accord plaintiffs the benefit of
every possible favorable inference, and determine only whether the
facts as alleged fit within any cognizable legal theory”
Eisner v. Cusumano Const., Inc., 132 A.D.3d 940, 941–42 (2nd Dept. 2015) further stated:
“On a pre-answer motion to dismiss pursuant to CPLR 3211, the
pleading is to be afforded a liberal construction and the plaintiff's
allegations are accepted as true and accorded the benefit of every
possible favorable inference” … A motion pursuant to CPLR
3211(a)(1) to dismiss a complaint on the ground that a defense is
founded on documentary evidence “may be appropriately granted
only where the documentary evidence utterly refutes [the]
plaintiff's factual allegations, conclusively establishing a defense
as a matter of law” … “The evidence submitted in support of such
motion must be ‘documentary’ or the motion must be denied” …
In order for evidence submitted in support of a CPLR 3211(a)(1)
motion to qualify as “documentary evidence,” it must be
“unambiguous, authentic, and undeniable” … “[n]either affidavits,
deposition testimony, nor letters are considered documentary
evidence within the intendment of CPLR 3211(a)(1)”
Based on these basic principles, it is clear that defendant’s motion cannot entitle them to anything
as defendant is trying to use its interpretation of evidence as fact, without recognizing that this is
not the standard on a motion to dismiss. An affidavit’s unilateral interpretation of otherwise
ambiguous documents is an invalid method to obtain relief. Eisner v. Cusumano Const., Inc., 132
A.D.3d 940, 941–42 (2nd Dept. 2015); J.A. Lee Elec., Inc. v. City of New York, 119 A.D.3d 652,
653 (2nd Dept. 2014).
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9. the evideñce is not as clear and unambiguous as def--=d==†
Indeed, documentary certainly
makes it out to be. There is no actual proof that dafandant was not present and at the
working
location on the day of incident. Contracts do not tell us what actnelly did occur, only what is
expected to occur. nowhere in the meeting:ninutes does it that defs=dant was
Further, setuãlly say
no longer be at the premiscs. The payñieñt is ambiguous and therefore meaningless: it simply does
not tell us one way or another whether they were still
working there. One can be paid and still have
what to do. None of this supposed evideñce is clear at all, and simply cannot be the basis for
anything at the pre-answer stage we are in, and with0üt any discovery, and in the face of plaintiff's
complaint being assumed to be true. See
Defc-dsts'
WHEREFORE, it is
respectfully
requested that motion be denied in its
entirety.
Pursuant to 22 NYCRR § 130-1.1, the undersigned, an attorney si-2".cd to practice in the courts
of New York State, certifies that, upon information and belief and reasonable inquiry, the
contentions contained in this document are not frivolous.
Dated: New York, NY
October 15, 2018
RHEINGOLD GlUFFRA RUFFO & PLOTKIN LLP
Attorneys for Plaintiff
YVETTE MCCLAMB
By: Jeremy A. Hellman, Esq.
296
551 Fifth Avenue, Floor
New York, NY 10176
Tel: (212) 684-1880
Fax: (212) 689-8156
jhell-s@rheingoldlaw.com
To:
STRADLEY RONON STEVENS & YOUNG, LLP
Attorneys for Defendant
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WEST NEW YORK RESTORATION OF CT, INC.
100 Park Avenue, Suite 2000
New York, NY 10017
sbernstein@stradley.com
DEVITT SPELLMAN BARRETT LLP
Attorneys for Defendant
HOUSING PARTNERSHIP DEVELOPMENT CORP.
50 Route 11, Suite 314
Smithtown, NY 11787
info@devittspellmanlaw.com
MARGARET G. KLEIN & ASSOC
Attorneys for Defendants
KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI
CONDOMINIUM, and WALLACK MANAGEMENT CO.
200 Madison Avenue, 2nd Fl.
New York, NY 10016
cmorell@gny.com
PERRY, VAN ETTEN, ROZANSKI & PRIMAVERA LLP.
Attorneys for Defendant
RNC INDUSTRIES
60 Broad Street, Suite 3600A
New York, NY 10004
kjkutner@pvrplaw.com
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Preview
FILED: NEW YORK COUNTY CLERK 10/15/2018 02:57 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 10/15/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK YVETTE MCCLAMB, Index No. 154374/2018 Motion Sequence No. 1 Plaintiff, -against- HOUSING PARTNERSHIP DEVELOPLMENT AFFIRMATION IN OPPOSITION CORPORATION, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM, WALLACK MANAGEMENT CO., INC., RNC INDUSTRIES, LLC. and WEST NEW YORK RESTORATION OF CT, Refer: Hon. Lynn R. Kotler, J.S.C. | Part 8 Defendants. Return Date: October 29, 2018 Jeremy A. Hellman, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following to be true under penalties of perjury: 1. I am an attorney with the law firm of Rheingold Giuffra Ruffo & Plotkin LLP, attorneys for Plaintiff YVETTE MCCLAMB in the above-captioned action, and as such I am fully familiar with all pleadings and proceedings heretofore had herein. 2. I submit this affirmation in opposition to the motion to dismiss of Defendant WEST NEW YORK RESTORATION OF CT. 3. The motion must be denied because it improperly tries to rebut plaintiff’s complaint pre- discovery, at a stage in which the entire complaint must be assumed to be true. 4. Among other things, defendant’s motion completely fails to address is plaintiff’s cause and create the subject hazard. Plaintiff’s complaint alleged, in pertinent part: 50. The foregoing occurrence and resultant injuries to plaintiff MCCLAMB due to the carelessness, recklessness and negligence of the defendants … in causing, permitting and allowing the aforesaid sidewalk to be, become and remain in a broken, cracked, raised, uneven, worn condition; in causing, permitting and/or allowing said sidewalk to be, become and remain in a dangerous, hazardous and trap like condition; in causing, permitting and/or allowing the aforesaid sidewalk to be, become and remain in 1 of 5 FILED: NEW YORK COUNTY CLERK 10/15/2018 02:57 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 10/15/2018 a broken, hazardous and dangerous condition, thereby creating and constituting a trap, hazard and tripping condition for persons lawfully walking thereat; … in causing and creating the aforesaid dangerous and hazardous condition; … in improperly repairing the aforesaid place sometime prior to the occurrence … 5. The theory of cause and create is a major theme in plaintiff’s complaint. In response, all Defendant WEST NEW YORK RESTORATION OF CT can say is that they were not at the location of incident at the time, which is totally irrelevant to this theory. Regardless of whether they were present at the time of incident, if they caused the defect previously, they would still be on the hook. 6. The case of Galardi v. Town of Hempstead, 164 A.D.3d 760 (2nd Dept. 2018) succinctly and directly discusses the standard at issue, stating: In considering a motion to dismiss pursuant to CPLR 3211(a)(7), the court must “ ‘accept the facts as alleged in the complaint [to be] true, accord plaintiff[ ] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory’ ” (Sokol v. Leader, 74 A.D.3d 1180, 1181, 904 N.Y.S.2d 153, quoting Nonnon v. City of New York, 9 N.Y.3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720). If the court considers evidentiary material, a motion to dismiss pursuant to CPLR 3211(a)(7) must be denied “ ‘unless it has been shown that a material fact as claimed by the [plaintiff] is not a fact at all and unless it can be said that no significant dispute exists regarding it’ ” (Sokol v. Leader, 74 A.D.3d at 1182, 904 N.Y.S.2d 153, quoting Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17). Here, the complaint adequately pleaded a cause of action to recover damages for negligence against the defendant, and the affidavits submitted by the defendant in support of its motion failed to address the plaintiff's theory of recovery that the defendant created the defective condition which caused the plaintiff's injuries. Thus, the defendant failed to demonstrate its entitlement to dismissal (see Cohen v. Finz & Finz, P.C., 131 A.D.3d 666, 666–667, 16 N.Y.S.3d 70; Comprehensive Mental Assessment & Med. Care, P.C. v. Gusrae Kaplan Nusbaum, PLLC, 130 A.D.3d 670, 672, 13 N.Y.S.3d 485). 2 of 5 FILED: NEW YORK COUNTY CLERK 10/15/2018 02:57 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 10/15/2018 7. Since plaintiff has alleged cause and create theories, and defendant has done nothing to rebut them, this motion must be denied without more. 8. Defendant’s motion is further inadequate, even with regard to the other allegations in plaintiff’s complaint. The Court of Appeals in Nonnon v. City of New York, 9 N.Y.3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720 (2007) described the applicable standard: On a CPLR 3211 motion to dismiss, the court will “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” Eisner v. Cusumano Const., Inc., 132 A.D.3d 940, 941–42 (2nd Dept. 2015) further stated: “On a pre-answer motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction and the plaintiff's allegations are accepted as true and accorded the benefit of every possible favorable inference” … A motion pursuant to CPLR 3211(a)(1) to dismiss a complaint on the ground that a defense is founded on documentary evidence “may be appropriately granted only where the documentary evidence utterly refutes [the] plaintiff's factual allegations, conclusively establishing a defense as a matter of law” … “The evidence submitted in support of such motion must be ‘documentary’ or the motion must be denied” … In order for evidence submitted in support of a CPLR 3211(a)(1) motion to qualify as “documentary evidence,” it must be “unambiguous, authentic, and undeniable” … “[n]either affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1)” Based on these basic principles, it is clear that defendant’s motion cannot entitle them to anything as defendant is trying to use its interpretation of evidence as fact, without recognizing that this is not the standard on a motion to dismiss. An affidavit’s unilateral interpretation of otherwise ambiguous documents is an invalid method to obtain relief. Eisner v. Cusumano Const., Inc., 132 A.D.3d 940, 941–42 (2nd Dept. 2015); J.A. Lee Elec., Inc. v. City of New York, 119 A.D.3d 652, 653 (2nd Dept. 2014). 3 of 5 FILED: NEW YORK COUNTY CLERK 10/15/2018 02:57 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 10/15/2018 9. the evideñce is not as clear and unambiguous as def--=d==† Indeed, documentary certainly makes it out to be. There is no actual proof that dafandant was not present and at the working location on the day of incident. Contracts do not tell us what actnelly did occur, only what is expected to occur. nowhere in the meeting:ninutes does it that defs=dant was Further, setuãlly say no longer be at the premiscs. The payñieñt is ambiguous and therefore meaningless: it simply does not tell us one way or another whether they were still working there. One can be paid and still have what to do. None of this supposed evideñce is clear at all, and simply cannot be the basis for anything at the pre-answer stage we are in, and with0üt any discovery, and in the face of plaintiff's complaint being assumed to be true. See Defc-dsts' WHEREFORE, it is respectfully requested that motion be denied in its entirety. Pursuant to 22 NYCRR § 130-1.1, the undersigned, an attorney si-2".cd to practice in the courts of New York State, certifies that, upon information and belief and reasonable inquiry, the contentions contained in this document are not frivolous. Dated: New York, NY October 15, 2018 RHEINGOLD GlUFFRA RUFFO & PLOTKIN LLP Attorneys for Plaintiff YVETTE MCCLAMB By: Jeremy A. Hellman, Esq. 296 551 Fifth Avenue, Floor New York, NY 10176 Tel: (212) 684-1880 Fax: (212) 689-8156 jhell-s@rheingoldlaw.com To: STRADLEY RONON STEVENS & YOUNG, LLP Attorneys for Defendant 4 of 5 FILED: NEW YORK COUNTY CLERK 10/15/2018 02:57 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 10/15/2018 WEST NEW YORK RESTORATION OF CT, INC. 100 Park Avenue, Suite 2000 New York, NY 10017 sbernstein@stradley.com DEVITT SPELLMAN BARRETT LLP Attorneys for Defendant HOUSING PARTNERSHIP DEVELOPMENT CORP. 50 Route 11, Suite 314 Smithtown, NY 11787 info@devittspellmanlaw.com MARGARET G. KLEIN & ASSOC Attorneys for Defendants KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM, and WALLACK MANAGEMENT CO. 200 Madison Avenue, 2nd Fl. New York, NY 10016 cmorell@gny.com PERRY, VAN ETTEN, ROZANSKI & PRIMAVERA LLP. Attorneys for Defendant RNC INDUSTRIES 60 Broad Street, Suite 3600A New York, NY 10004 kjkutner@pvrplaw.com 5 of 5