Preview
FILED: NEW YORK COUNTY CLERK 10/22/2018 10:55 AM INDEX NO. 154374/2018
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 10/22/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-------------. ------------....---..------------X
YVETTE MCCLAMB, AFFIRMATION IN
OPPOSITION
Plaintiff,
-against-
HOUSING PARTNERSHIP DEVELOPMENT Index No. 154374/18
CORPORATION, KALAHARI CONDOMINIUM,
THE BOARD OF MANAGERS OF KALAHARI
CONDOMINIUM, WALLACK MANAGEMENT
CO., INC., RNC INDUSTRIES, LLC and WEST
NEW YORK RESTORATION OF CT, INC.,
Defendants.
--------------------------- ---------¬---------------X
KENNETH J. KUTNER, an attorney duly licensed to practice law in the State of New
York, affirms the following under the penalties of perjury:
1. I am a member of the firm of PERRY, VAN ETTEN, ROZANSKI &
PRIMAVERA, LLP, attorneys for defendant RNC INDUSTRIES, LLC.
2. This affirmation is submitted in opposition to the motion by defendant WEST
NEW YORK RESTORATION OF CT, INC. seeking a dismissal of plaintiff's compliãüt and
defendants'
the various cross claims pursuant to CPLR 3211(a)(7) for purported failure to state
a cause of action.
3. The motion must be denied as the movant has failed to establish entitlement to
dismissal of the complaint or the cross claims of RNC INDUSTRIES, LLC.
4. In determining whether a complaint is sufficient to withstand a motion pursuant to
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CPLR 3211(a)(7), "the sole criterion is whether the pleading states a cause of action, and if
from its four corners factual allegations are discerned which taken together manifest any cause
fail."
of action cognizable at law a motion for dismissal will Guggenheimer v. Ginzburg, 43
N.Y.2d 268, 275 [1977].
5. When reviewing the pleadings, the court must accept the facts as alleged in the
complaint or cross claim as true, accord plaintiffs or the cross complainant the benefit of every
possible favorable inference, and determine only whether the facts as alleged fit within any
cognizable legal theory. Leon v Martinez, 84 NY2d 83 [1994]. Further, "[w]hether a plaintiff
can ultimately establish its allegations is not part of the calculus in determining a motion to
dismiss."
EBC I.Inc. v Goldman. Sachs & Co.. 5 NY3d 11 [2005].
6. Similarly, when moving to dismiss a counterclaim or cross claim as meritless,
the movant bears the burden of demonstrating that the counterclaim or cross claim is without
merit as a matter of law (Mazzei v Kyriacou, 98 AD3d 1088 [2nd Dep't 2012]). The court must
liberally construe the pleadings in favor of the party asserting it and give that party the benefit
of every reasonable inference (id.). A cross claim or counterclaim should not be dismissed if
there is any doubt as to its availability (Federici v Metrooolis Night Club, Inc., 48 AD3d 741,
743 [2nd Dep't 2008]).
7. The court should note that moving defendant failed to annex the complaint or
defendants'
the answers with cross claims to his motion instead choosing to make reference to
the number within the Court's docket at which said pleadings are filed. While not statutorily
required (c.f.CPLR 3212 ["A motion for summary judgment shall be supported . .. by a copy
of the pleadings"]), itis beyond cavil that a motion pursuant to CPLR 3211 (a) (7) arguing "the
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11. The meeting minutes do no indicate whether removal of the east portion of the
sidewalk bridge constituted the last of defendant WEST NEW YORK RESTORATION OF
CT, INC.'s efforts to remove the entirety of the sidewalk shed from the sidewalk at or about the
"anticipate[d]"
accident location. Rather, the meeting minutes state that movant final removal
of the sidewalk shed by the end of May 2017 but there is no evidence before the Court
indicating that the final removal was accomplished.
12. The inference to be drawn based upon the foregoing entries is that removal of
the east portion of the sidewalk bridge on May 9, 2017 did not accomplish the complete
removal of the sidewalk bridge. Otherwise, there would have been no need for the movant to
reflect an entry within the very same meeting minutes that it "anticipates that the work will be
May."
complete and the sidewalk shed removed by the end of
"C"
13. Moreover, although Exhibit to the Gallicchio affidavit is identified by Mr.
Gallicchio as a "Final Application and Certification for Payment", there is nothing set forth
"C" "Final"
within Exhibit that identifies it as a Application and Certification for Payment.
Similarly, there is nothing within the application for payment to establish that the sidewalk
116th
shed/bridge that was adjacent to 40 West Street had been removed between May 9, 2017
and August 4, 2017 or before plaintiff's alleged accident on August 22, 2017.
14. The plaintiff's complaint does not identify the nature of the defective condition
that is purported to have caused her to fall on August 22, 2017. Defendant WEST NEW
YORK RESTORATION OF CT, INC. has therefore failed to establish in the firstinstance that
it isnot responsible for creating the alleged defective condition that plaintiff claims caused her
to fall.
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15. It has therefore failed to establish its entitlement to the relief requested on the
instant motion.
Dated: New York, New York
October 22, 2018
KENNETH J. KUTNER
TO: STRADLEY RONON STEVENS & YOUNG, LLP
Attorneys for Defendant
WEST NEW YORK RESTORATION OF CT, INC.
100 Park Avenue, Suite 2000
New York, NY 10017
Tel. No.: (212) 812-4124
RHEINGOLD GIUFFRA RUFFO
& PLOTKIN LLP
Attorneys for Plaintiff
29th
551 Fiñh Avenue, Floor
New York, NY 10176
Tel. No.: (212) 684-1880
MARGARET G. KLEIN & ASSOCIATES
Attorneys for Defendants
KALAHARI CONDOMINIUM, THE BOARD
OF MANAGERS OF KALAHARI CONDOMINIUM
AND WALLACK MANAGEMENT CO., INC.
2nd
200 Madison Avenue, FlOOr
New York, NY 10016
Tel. No.: (646) 392-9250
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Preview
FILED: NEW YORK COUNTY CLERK 10/22/2018 10:55 AM INDEX NO. 154374/2018 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 10/22/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------. ------------....---..------------X YVETTE MCCLAMB, AFFIRMATION IN OPPOSITION Plaintiff, -against- HOUSING PARTNERSHIP DEVELOPMENT Index No. 154374/18 CORPORATION, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM, WALLACK MANAGEMENT CO., INC., RNC INDUSTRIES, LLC and WEST NEW YORK RESTORATION OF CT, INC., Defendants. --------------------------- ---------¬---------------X KENNETH J. KUTNER, an attorney duly licensed to practice law in the State of New York, affirms the following under the penalties of perjury: 1. I am a member of the firm of PERRY, VAN ETTEN, ROZANSKI & PRIMAVERA, LLP, attorneys for defendant RNC INDUSTRIES, LLC. 2. This affirmation is submitted in opposition to the motion by defendant WEST NEW YORK RESTORATION OF CT, INC. seeking a dismissal of plaintiff's compliãüt and defendants' the various cross claims pursuant to CPLR 3211(a)(7) for purported failure to state a cause of action. 3. The motion must be denied as the movant has failed to establish entitlement to dismissal of the complaint or the cross claims of RNC INDUSTRIES, LLC. 4. In determining whether a complaint is sufficient to withstand a motion pursuant to 1 of 6 FILED: NEW YORK COUNTY CLERK 10/22/2018 10:55 AM INDEX NO. 154374/2018 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 10/22/2018 CPLR 3211(a)(7), "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause fail." of action cognizable at law a motion for dismissal will Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275 [1977]. 5. When reviewing the pleadings, the court must accept the facts as alleged in the complaint or cross claim as true, accord plaintiffs or the cross complainant the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Leon v Martinez, 84 NY2d 83 [1994]. Further, "[w]hether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss." EBC I.Inc. v Goldman. Sachs & Co.. 5 NY3d 11 [2005]. 6. Similarly, when moving to dismiss a counterclaim or cross claim as meritless, the movant bears the burden of demonstrating that the counterclaim or cross claim is without merit as a matter of law (Mazzei v Kyriacou, 98 AD3d 1088 [2nd Dep't 2012]). The court must liberally construe the pleadings in favor of the party asserting it and give that party the benefit of every reasonable inference (id.). A cross claim or counterclaim should not be dismissed if there is any doubt as to its availability (Federici v Metrooolis Night Club, Inc., 48 AD3d 741, 743 [2nd Dep't 2008]). 7. The court should note that moving defendant failed to annex the complaint or defendants' the answers with cross claims to his motion instead choosing to make reference to the number within the Court's docket at which said pleadings are filed. While not statutorily required (c.f.CPLR 3212 ["A motion for summary judgment shall be supported . .. by a copy of the pleadings"]), itis beyond cavil that a motion pursuant to CPLR 3211 (a) (7) arguing "the 2 of 6 FILED: NEW YORK COUNTY CLERK 10/22/2018 10:55 AM INDEX NO. 154374/2018 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 10/22/2018 3 of 6 FILED: NEW YORK COUNTY CLERK 10/22/2018 10:55 AM INDEX NO. 154374/2018 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 10/22/2018 11. The meeting minutes do no indicate whether removal of the east portion of the sidewalk bridge constituted the last of defendant WEST NEW YORK RESTORATION OF CT, INC.'s efforts to remove the entirety of the sidewalk shed from the sidewalk at or about the "anticipate[d]" accident location. Rather, the meeting minutes state that movant final removal of the sidewalk shed by the end of May 2017 but there is no evidence before the Court indicating that the final removal was accomplished. 12. The inference to be drawn based upon the foregoing entries is that removal of the east portion of the sidewalk bridge on May 9, 2017 did not accomplish the complete removal of the sidewalk bridge. Otherwise, there would have been no need for the movant to reflect an entry within the very same meeting minutes that it "anticipates that the work will be May." complete and the sidewalk shed removed by the end of "C" 13. Moreover, although Exhibit to the Gallicchio affidavit is identified by Mr. Gallicchio as a "Final Application and Certification for Payment", there is nothing set forth "C" "Final" within Exhibit that identifies it as a Application and Certification for Payment. Similarly, there is nothing within the application for payment to establish that the sidewalk 116th shed/bridge that was adjacent to 40 West Street had been removed between May 9, 2017 and August 4, 2017 or before plaintiff's alleged accident on August 22, 2017. 14. The plaintiff's complaint does not identify the nature of the defective condition that is purported to have caused her to fall on August 22, 2017. Defendant WEST NEW YORK RESTORATION OF CT, INC. has therefore failed to establish in the firstinstance that it isnot responsible for creating the alleged defective condition that plaintiff claims caused her to fall. 4 of 6 FILED: NEW YORK COUNTY CLERK 10/22/2018 10:55 AM INDEX NO. 154374/2018 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 10/22/2018 15. It has therefore failed to establish its entitlement to the relief requested on the instant motion. Dated: New York, New York October 22, 2018 KENNETH J. KUTNER TO: STRADLEY RONON STEVENS & YOUNG, LLP Attorneys for Defendant WEST NEW YORK RESTORATION OF CT, INC. 100 Park Avenue, Suite 2000 New York, NY 10017 Tel. No.: (212) 812-4124 RHEINGOLD GIUFFRA RUFFO & PLOTKIN LLP Attorneys for Plaintiff 29th 551 Fiñh Avenue, Floor New York, NY 10176 Tel. No.: (212) 684-1880 MARGARET G. KLEIN & ASSOCIATES Attorneys for Defendants KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM AND WALLACK MANAGEMENT CO., INC. 2nd 200 Madison Avenue, FlOOr New York, NY 10016 Tel. No.: (646) 392-9250 5 of 6 FILED: NEW YORK COUNTY CLERK 10/22/2018 10:55 AM INDEX NO. 154374/2018 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 10/22/2018 6 of 6