Motion-Secondary: Yvette Mcclamb v. Housing Partnership Development Corporation, Kalahari Condominium, The Board Of Managers Of Kalahari Condominium, Wallack Management Co., Inc., Rnc Industries, Llc, West New York Restoration Of Ct, Inc.

On May 10, 2018 a Motion-Secondary was filed involving a dispute between Yvette Mcclamb, and Housing Partnership Development Corporation, Kalahari Condominium, Rnc Industries, Llc, The Board Of Managers Of Kalahari Condominium, Wallack Management Co., Inc., West New York Restoration Of Ct, Inc., for Torts - Other Negligence (Premises Trip and Fall) in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 10/26/2018 11:40 AM INDEX NO. 154374/2018
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 10/26/2018

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
__---____-________ -----------------------------------X

YVETTE MCCLAMB, Index No. 154374/2018

(ECF)
Plaintiff,
v.
Motion Sequence No. 1
HOUSING PARTNERSHIP DEVELOPMENT
CORPORATION, KALAHARI CONDOMINIUM,
THE BOARD OF MANAGERS OF KALAHARI Assigned Judge: Lynn R. Kotler

CONDOMINIUM, WALLACK MANAGEMENT
CO., INC., RNC INDUSTRIES, LLC AND WEST
NEW YORK RESTORATION OF CT, INC.,
Return Date: October 29, 2018
Defendants.

------------------- ---------------------------------------x

REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT
OF MOTION TO DISMISS PLAINTIFF'S COMPLAINT AND
ALL CROSS-CLAIMS AND CROSS-COMPLAINTS ASSERTED
AGAINST DEFENDANT WEST NEW YORK RESTORATION OF CT, INC.

Scott H. Bernstein, Esq.
STRADLEY RONON STEVENS & YOUNG, LLP
ATTORNEYS FOR DEFENDANT,
WEST NEW YORK RESTORATION OF CT, INC.
100 Park Avenue, Suite 2000
New York, New York 10017
Telephone: (212) 812-4132
Facsimile: (646) 682-7180
Sbernstein@stradley.com

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TABLEOFCONTENTS

Page

PRELIMINARY STATEMENT.......................................................................-...-..--...-..-.-....-.-..-...1

ARGUMENT ............................................................-....-.-.--..---.-.-....--..--...-..-......·.....-...-.........3

I. The Attorney's Affirmations Offered by Plaintiff and RNC Industries Should be
Stricken...................................................................................-..........-..-........-...---....-......3

Industries'
II. Plaintiff's Complaint and RNC Cross-Claims Should be Dismissed with
Prejudice........................................................................................................................................4

CONCLUSION ..................................................................................-.....................................................6

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TABLEOF AUTHORITIES

CASES

Balsam v Delma Eng'g Corp.,
139 A.D. 2d 292 (1st Dep't 1998)......................................................................................................
5

Breland v. Bavridge Air Rights, Inc.,
65 A.D.3d 559 (2d Dept. 5
2009)..........................................................................................................

Digital Broadcasting Corp. v. Ladenburg, Thalmann & Co., Inc.,
Index No. 117041/2005, 19 Misc. 3d 1130(A), (Sup. Ct. N.Y. Ctny. April 21, 2008)
(Lowe, 4
J.)............................................................................................................................................

Espinal v. Melville Snow Contrs.,
98 N.Y.2d 136 5
(2002).........................................................................................................................

Mamoon v. Dot Net Inc.,
135 A.D. 3d 656 (1st Dep't 4
2016)......................................................................................................

Noia v Maselli,
45 A.D. 3d 746 (2d Dep't 2007).........................................................................................................
5

Response Personnel Inc. v. Aschenbrenner,
2014 NY Slip Op. 31948(U) (Sup. Ct. N.Y. Cnty. July 17, 2014) (Branstein, 3
J.).............................

Ruffino v. New York City Transit Auth.,
55 A.D. 3d 817 (2d Dep't 5
2008).........................................................................................................

S.J Capelin Assocs.. Inc. v. Globe Mfg. Corp.,
34 N.Y.2d 338 4
(1974).........................................................................................................................

Tripp & Co. v. Bank of New York, Inc.,
28 Misc.3d 1211(A) (Sup. Ct. N.Y. Cnty. July 14, 2010) 3
..................................................................

Usman v. Alexander's Rego, Shopping Center, Inc.,
11 A.D.3d 450 (2d Dept. 2004)..........................................................................................................
5

RULES

CPLR Rule 3211(a)(1) and 1
(a)(7).............................................................................................................

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Defendant West New York Restoration of CT, Inc. ("West New York") respectfully submits

this reply memorandum of law in further support of its motion, pursuant to Rule 3211(a)(1) and (a)(7)

of the Civil Practice Law and Rules ("CPLR"), to dismiss the Complaint filed by Plaintiff Yvette

("Plaintiff"
McClamb or "McClamb") and the Cross-Claims and Cross-Complaints asserted by

Defendants Housing Partnership Development Corporation, Kalahari Condominium, the Board of

Managers of Kalahari Condominium, Wallack Management Co., Inc. ("Wallack"), and RNC

Industries, LLC ("RNC Industries") against West New York. The basis for the dismissal of West

New York from this lawsuit is that the unambiguous and undeniable documentary evidence

conclusively establishes that (1) West New York completed all of its facade restoration work and

operations at the Kalahari Condominium more than two weeks before the date of occurrence of

Plaintiff's alleged trip-and-fall incident and (2) West New York had no responsibility for the

maintenance of the sidewalk abutting the Kalahari Condominium.

STATEMENT2
PRELIMINARY

Plaintiff alleges that on or about August 22, 2017, while lawfully walking on the sidewalk

abutting the building known as Kalahari Condominium, she was caused to fall thereat and as a result

sustained severe personal injuries. (Complaint, ¶ 49.) Plaintiff alleges that her injuries were "due to

the carelessness, recklessness, and negligence of the defendants . . . in the ownership, operation,

."
management, maintenance and ownership of said premises . . . (Complaint, ¶ 50.) Plaintiff also

alleges that West New York entered into certain contracts and/or agreements with Kalahari

The cross-claims asserted by Defendants Housing Partnership Development Corporation,
Kalahari Condominium, the Board of Managers of Kalahari Condominium, and Wallack Management

Co., Inc. should be promptly dismissed with prejudice because such Defendants are not opposing West
New York's motion to dismiss.

2
West New York accepts as true the facts set forth in Plaintiff's Complaint solely for the
purposes of West New York's motion to dismiss. True and correct copies of Plaintiff's Complaint and
RNC Industries Answer with Cross-Claims are annexed as Exhibits 1 and 2, respectively, to the

accompanying Affirmation of Scott H. Bernstein, Esq. (the "Bernstein Affirmation").

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Condominium and Wallack to perform certain services including but not limited to construction and

renovation at the aforesaid building premises. (Complaint, ¶¶ 44-45.)

The opposition of Plaintiff and RNC Industries to West New York's motion to dismiss are

based the false premise that Plaintiff's Complaint, which "does not identify the nature of the defective

2017"
condition of the sidewalk that is purported to have caused her fall to fall on August 27, (RNC

Industries Attorney's Affirmation, ¶ 14), is sufficient to state a claim against a facade restoration

company that completed itswork weeks before the alleged incident. Putting aside the palpable failure

of Plaintiff and RNC Industries to state a claim, Plaintiff and RNC Industries completely ignore the

very documentary evidence establishing that (1) West New York completed allof itsfacade restoration

work and operations at the Kalahari Condominium more than two weeks before the date of occurrence

of Plaintiff's alleged incident and (2) West New York had no responsibility for the maintenance of the

sidewalk abutting the Kalahari Condominium.

The undisputable documentary evidence is as follows:

• On April 29, 2015, West New York entered into an AIA Contract (the "Facade
Restoration Contract") with Kalahari Condominium for facade restoration and related
work that involved the erection of scaffolding and a sidewalk bridge. (Gallicchio

Affidavit, Exhibit A.) Under the Facade Restoration Contract, West New York had no

responsibility for the maintenance of the sidewalk. (See id.)

• Section 15.5 of the Facade Restoration Contract, entitled "Final Completion and Final

Payment", provides that "Upon receipt of the Contractor's written notice that the Work
is ready for final inspection and acceptance and upon receipt of a final Application for

Payment, the Architect will promptly make such inspection and when the Architect

finds the Work acceptable under the Contract Documents and the Contract fully
performed, the Architect will promptly issue a final Certificate for Payment stating
that to the best of the Architect's knowledge, information and belief, and on the
basis of the Architect's on-site visits and inspections, the Work has been completed
in accordance with the terms and conditions of the Contract Documents and the

entire balance found to be due to the Contractor and noted in the final Certificate
."
is due and payable. . . (Gallicchio Affdavit, Exhibit A) (emphasis added);

• In accordance with Section 15.5 of the Facade Restoration Contract, on August 4, 2017,
West New York submitted a Final Application and Certification for Payment

evidencing that all of its work at the Kalahari Condominium had already been fully
performed by August 4, 2017. (Gallicchio Affidavit, Exhibit B). The architect

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employed by Defendant Kalahari Condominium approved the Final Application and

Certification for Payment and authorized the payment of all remaining monies due

under the contract documents to West New York without a single penny of retainage

held back. (See id.) Indeed, the Final Application and Certification for Payment states
0.00."
that the "BALANCE TO FINISH, INCLUDING RETAINAGE [is]
(Gallicchio Affidavit, Exhibit B) (capitalization in original) (emphasis added).

Against this backdrop of uncontested documentary evidence mandating dismissal, RNC

Industries merely argues in an impermissible attorney's affirmation that West New York cannot be

dismissed from the lawsuit because Plaintiff's Complaint "does not identify the nature of the defective

2017."
condition [of the sidewalk] that purported to have caused her to fall on August 27, (RNC

Industries Attorney's Affirmation, ¶ 14.) In a similar vein, Plaintiff's counsel makes the circular

argument in an equally impermissible attorney's affirmation that "the payment is ambiguous and

meaningless."
therefore (Plaintiff's Attorney's Affirmation, ¶ 9.) In other words, rather than address

West New York's documentary evidence proving that itcompleted all of itsfacade restoration work by

August 4, 2017, RNC Industries and Plaintiff attempt to obscure and camouflage the significant issues

that should be decided by the Court on West New York's motion.

For the reasons discussed below, and those in West New York's opening memorandum of law,

the Court should grant West New York's motion and dismiss Plaintiff s Complaint and the cross-

claims of RNC Industries with prejudice.

ARGUMENT

I. The Attorney's Affirmations Offered by Plaintiff and RNC Industries Should be Stricken.

It is well-established that "argument is to be presented in a memorandum of law. The

affirmation is neither a replacement for a memorandum of law nor a place to submit additional

argument."
Response Personnel, Inc. v. Aschenbrenner, 2014 NY Slip Op. 31948(U) (Sup. Ct. N.Y.

Cnty. July 17, 2014) (Branstein, J.) (Exhibit 3 to Bernstein. Aff.) (citing Tripp & Co. v. Bank of New

York, Inc., 28 Misc.3d 1211(A), *6 (Sup. Ct. N.Y. Cnty. July 14, 2010) (Bernard, J.) (Exhibit 4 to

Bernstein Aff.). ("Affirmations, like affidavits, are reserved for a statement of the relevant facts; a

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statement of the relevant law and arguments belongs in a brief")).

In addition to impermissible attomey's affirmations, the affirmations offered in
being

opposition to West New York's motion do not constitute documentary evidence (see Mamoon v. Dot

(13'
Net Inc., 135 A.D. 3d 656, 657 Dep't 2016)), and "[are] meaningless as [they are] not based on

knowledge."
personal Digital Broadcasting Corp. v. Ladenburg, Thalmann & Co., Inc., Index No.

* Ctny. April (Exhibit 5 to
117041/2005, 19 Misc. 3d 1130(A), 4 (Sup. Ct. N.Y. 21, 2008) (Lowe, J.)

Bemstein Aff.) (citing S.J Capelin Assocs., Inc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 342 (1974)

(holding that affidavits must be "made by one having personal knowledge of the facts")).

Consequently, the affirmations of Plaintiff and RNC Industries offered in opposition to West New

York's motion to dismiss should be stricken and West New York's motion treated as unopposed.

Industries'
II. Plaintiff's Complaint and RNC Cross-Claims Should be Dismissed with
Prejudice.

In her Complaint, Plaintiff alleges that on or about August 22, 2017, while lawfully walking on

the sidewalk abutting the building known Kalahari Condominium, she was caused to fall thereat and as

a result sustained severe personal injuries. (Complaint, ¶ 49.) In addition, Plaintiff alleges that her

defendants."
injuries are "due to the carelessness, recklessness, and negligence of the (Complaint, ¶

50.) All of the Cross-Claims of RNC Industries bootstrap from Plaintiff's allegations and do not have

an independent basis in the absence of Plaintiff's allegations. [Docket Nos. 9, 10 & 16}.

West New York's Final Certification and Application for Payment (which is certified by

Defendant Kalahari Condominium's architect) conclusively establishes that West New York

completed all of its facade work and operations at the Kalahari Condominium and vacated the

premises by no later than August 4, 2017 (i.e., more than two (2) weeks before the date of the

occurrence of Plaintiff's alleged injury). (Gallicchio Affidavit, Exhibit B.) The documentary

evidence also conclusively establishes that West New York had no responsibility for the maintenance

of the sidewalk abutting the Kalahari Condominium under the Facade Restoration Contract.

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(Gallicchio Affidavit, Exhibit A.)

It iswell-established that a threshold question in a finding of negligence is "whether the alleged

party."
tortfeasor owed a duty of care to the injured Espinal v. Melville Snow Contrs., 98 N.Y.2d 136,

138 (2002); see also Balsam v Delma Eng'g Corp., 139 A.D. 2d 292, 296 (1st Dep't 1998) (holding

that "[a]bsent a duty of care to the person injured, a party cannot be held liable in negligence")

(citation omitted). It is equally well-established that, with respect to a claim of negligence arising

from a dangerous condition on the property, liability is predicated upon ownership, occupancy, control

or special use of said premises. See Breland v. Bavridge Air Rights, Inc., 65 A.D.3d 559, 560 (2d

Dept. 2009); Ruffino v. New York City Transit Auth., 55 A.D. 3d 817, 818 (2d Dep't 2008); Usman v.

Alexander's Rego, Shopping Center, Inc., 11 A.D.3d 450, 451 (2d Dept. 2004). Consequently, where

none is present, "a party cannot be held liable for injuries caused by the dangerous or defective

property."
condition on the Ruffino, supra at 818; see, Breland, supra at 560; Usman, supra at 451.

Here, West New York did not owe a duty of care to Plaintiff because West New York did not

own, occupy or control the premises on the date of the incident. (Gallicchio Affidavit, Exhibits A, B &

C). See Ruffino, supra, 55 A.D.3d at 818 (recognizing that "[1]iability for a dangerous or defective

condition on property is . . . predicated upon ownership, occupancy, control or special use of the

property . .. Where none is present, a party cannot be held liable for injuries caused by the dangerous

or defective condition of the property") (quoting Noia v Maselli, 45 A.D. 3d 746, 746 (2d Dep't

2007)). As a result, applying the foregoing standards to the instant case, West New York's Motion to

Dismiss the Plaintiffs Complaint and all Cross-Complaints and Cross-Claims asserted against itby the

other Defendants should be granted.

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CONCLUSION

For all of the reasons and those set forth in its opening memorandum of law, West
foregoing

New York requests that the Court (i) grant its Motion and dismiss Plaintiff's Complaint
respectfully

and all of the Cross-Complaints and Cross-Claims asserted by the other Defendants in their entirety

and with prejudice, and (ii) grant West New York such other and further relief as may be just, proper,

and equitable.

ATTORNEY'S CERTIFICATION

The undersigned hereby certifies that, to the best of the undersigned's knowledge, information

and belief formed after reasonable inquiry under the circumstances, the presentation of the within

Reply Memorandum of Law in Further Support of Motion to Dismiss Plaintiff's Complaint and All

Cross-Claims and Cross-Complaints Asserted Against West New York Restoration of CT, Inc., or the

contentions contained therein are not frivolous as defined in 22 NYCRR § 130-1.1(c).

Dated: New York, New York
October 26, 2018 Respectfully submitted,

Scott H. Bernstein, Esq.
STRADLEY RONON STEVENS & YOUNG, LLP

ATTORNEYS FOR DEFENDANT, WEST NEW YORK
RESTORATION OF CT, INC.
100 Park Avenue, Suite 2000
New York, New York 10017
Telephone: (212) 812-4132

Facsimile: (646) 682-7180
Sbernstein@stradley.com

TO:

RHEINGOLD GIUFFRA RUFFO & PLOTKIN LLP
ATTORNEYS FOR PLAINTIFF YVETTE MCCLAMB
Jeremy A. Hellman, Esq.
29"'
551 Fifth Avenue, Floor
New York, New York 10176

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PERRY, VAN ETTEN, ROZANSKI & PRIMAVERA, LLP

ATTORNEYS FOR DEFENDANT/CROSS-CLAIMANT
RNC INDUSTRIES, LLC
Kenneth J. Kutner, Esq.
60 Broad Street, Suite 3600A
New York, New York 10004

MARGARET G. KLEIN & ASSOCIATES
ATTORNEYS FOR DEFENDANTS/CROSS-CLAIMANTS
KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI
CONDOMINIUM, AND WALLACK MANAGEMENT CO., INC.
Carol Morell, Esq.
2nd
200 Madison Avenue, FlOOr
New York, New York 10016

DEVITT SPELLMAN BARRETT, LLP
ATTORNEYS FOR DEFENDANT/CROSS-CLAIMANT
HOUSING PARTNERSHIP DEVELOPMENT CORPORATION
Kelly E. Wright, Esq.
50 Route 11, Suite 314

Smithtown, New York 11787

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK PART 8

Index No. 154374/2018

____ ... ..-

YVETTE MCCLAMB,

Plaintiff,

-against-

HOUSING PARTNERSHIP DEVELOPMENT
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.

REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT
OF MOTION TO DISMISS PLAINTIFF'S COMPLAINT AND
ALL CROSS-CLAIMS AND CROSS-COMPLAINTS
ASSERTED AGAINST DEFENDANT
WEST NEW YORK RESTORATION OF CT, INC.

STRADLEY RONON STEVENS & YOUNG, LLP
Attorneys for Defendant

100 Park Avenue, Suite 2000

New York, New York 10017

(212) 812-4124 (telephone)

Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of New

York State, certifies that, upon information and belief and reasonable inquiry, the contentions contained

in the annexed document are not frivolous.

Dated: October 26, 2018 Signature: ..)

Scott H. Bernstein

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Case Info

Judge

Arlene P Bluth Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

October 26, 2018

Case Filing Date

May 10, 2018

County

Parties

BERNSTEIN, SCOTT H Attorney for the Defendant
BIEDER, JOHN WILLIAM Attorney for the Defendant
BLACK, LISA J Attorney for the Defendant
EDWARDS, SEAN OMAR Attorney for the Defendant
FIXLER, JASON L Attorney for the Defendant
FRENCH, JOSEPH A Attorney for the Defendant
GIUFFRA, THOMAS PETER Attorney for the Plaintiff
GLASSMAN, MICHAEL HAYES Attorney for the Defendant
HELLMAN, JEREMY ALLAN Attorney for the Plaintiff
Housing Partnership Development Corporation Defendant
Kalahari Condominium Defendant
KUTNER, KENNETH J. Attorney for the Defendant
RNC Industries, LLC Defendant
SPELLMAN, KEVIN M Attorney for the Defendant
The Board of Managers of Kalahari Condominium Defendant
Wallack Management Co., Inc. Defendant
West New York Restoration of CT, Inc. Defendant
Yvette Mcclamb Plaintiff
CAROL MORELL Attorneys for Defendants
KELLY WRIGHT Attorneys for Defendants
SHERRI PLOTKIN Attorneys for Plaintiffs
MICHAEL HOLOHAN Attorneys for Defendants

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