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FILED: NEW YORK COUNTY CLERK 07/01/2019 03:25 PM INDEX NO. 154374/2018
NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 07/01/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
YVETTE MCCLAMB, Index No. 154374/2018
Motion Sequence No. 2
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 Refer: Hon. Francis A. Kahn, III, J.S.C.
NEW YORK RESTORATION OF CT, Part 14
Return Date: July 8, 2019
Defendants.
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 for summary judgment of Defendant
HOUSING PARTNERSHIP DEVELOPLMENT CORPORATION.
3. This motion must be denied on two separate grounds: 1) defendant has failed to sustain his
initial burden as movant for summary judgment of demonstrating that they did not cause and create
the subject defect; 2) this motion for summary judgment is premature since depositions have not
taken place yet1.
4. Among other things, defendant’s motion completely fails to address plaintiff’s cause and
create theory of liability. Plaintiff’s complaint alleged, in pertinent part:
1
Same was originally scheduled per preliminary conference order for May 14, 2019, but
depositions have been pushed off since counsel for Kalahari asked for more time since new
counsel would be coming in.
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FILED: NEW YORK COUNTY CLERK 07/01/2019 03:25 PM INDEX NO. 154374/2018
NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 07/01/2019
50. The occurrence and rem1tant injuries
foregoing
plaintiff MCCLAMB due to the carelessñcss, recklessness
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
dangerous, hazardous and trap
like condition; in causing, permitting
and/or allowing the aforesaid sidewalk to be, become and remain
a broken, hazardous and dangerous condition, thereby creating
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
aforesaid place sometime prior to the occurrence ...
5. Plaintiff's Verified Bill of Particulars alleges in pertinent part:
5. The foregoing occurrence and remitant injuries to plaintiff
MCCLAMB due to the carelessness, recklessness and negligence
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 s
sidewalk to be, become and remain in a dangerous, hazardous
trap like condition; in causing, permitting and/or allowing
aforesaid sidewalk to be, become and remain in a broken, hazardous
and dangerous condition, thereby creating
and constituting
a tr
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;
23.-24. ... Defendant had actual notice of said conditions in
they caused, created, permitted, allowed and/or were aware of
conditions ...
6. The theory of cause and create is a major theme in plaintiff's compla
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particulars. In response to a co-defedant's motion to dismiss (who faced the
FILED: NEW YORK COUNTY CLERK 07/01/2019 03:25 PM INDEX NO. 154374/2018
NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 07/01/2019
7. While documentary evidcñce may not be the standard in s"mm j
def-dan+ still needed some or evidcñce that did not cause and
testimony they
However, in response, all Def-ñdañt HOUSING can say is that
they were not
area; that is not the end of the analysis. Since plaintiff has alleged cause and c
def--=d==± has done to rebut this motion must be denied withõüt
neal-g them,
since
they have not even sat for a deposition yet despite
being ordered to do so.
Defed=ñts'
WHEREFORE, it is
respectfully
requested that motion
entirety.
Pursuant to 22 NYCRR § 130-1.1, the undersigñcd, an attorney
ad=Mcd to practi
of New York State, certifies that, upon information and belief and reasonable in
contentions contained in this document are not frivolous.
Dated: New York, NY
July 1, 2019
RHEINGOLD GlUFFRA RUFFO & PLOTKIN L
Attorneys for Plaintiff
YVETTE MCCLAMB
By: Jeremy A. Hellman, Esq.
2981
551 Fifth Avenue, Floor
New York, NY 10176
Tel:
(212) 684-1880
Fax: (212) 689-8156
jhe''mañ@rheingoldlaw.com
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FILED: NEW YORK COUNTY CLERK 07/01/2019 03:25 PM INDEX NO. 154374/2018
NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 07/01/2019
BLAKELY LLP
Attorneys for Defendant
WEST NEW YORK RESTORATION OF CT, INC.
805 Third Avenue, 8th Floor
New York, New York 10022
sbernstein@blakelyllp.com
FRENCH & CASEY
Attorneys for Defendants
KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI
CONDOMINIUM, and WALLACK MANAGEMENT CO.
29 Broadway
New York, New York 10006
sedwards@frenchcasey.com
PERRY, VAN ETTEN, ROZANSKI & PRIMAVERA LLP.
Attorneys for Defendant
RNC INDUSTRIES
60 Broad Street, Suite 3600A
New York, New York 10004
kjkutner@pvrplaw.com
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Preview
FILED: NEW YORK COUNTY CLERK 07/01/2019 03:25 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 07/01/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK YVETTE MCCLAMB, Index No. 154374/2018 Motion Sequence No. 2 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 Refer: Hon. Francis A. Kahn, III, J.S.C. NEW YORK RESTORATION OF CT, Part 14 Return Date: July 8, 2019 Defendants. 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 for summary judgment of Defendant HOUSING PARTNERSHIP DEVELOPLMENT CORPORATION. 3. This motion must be denied on two separate grounds: 1) defendant has failed to sustain his initial burden as movant for summary judgment of demonstrating that they did not cause and create the subject defect; 2) this motion for summary judgment is premature since depositions have not taken place yet1. 4. Among other things, defendant’s motion completely fails to address plaintiff’s cause and create theory of liability. Plaintiff’s complaint alleged, in pertinent part: 1 Same was originally scheduled per preliminary conference order for May 14, 2019, but depositions have been pushed off since counsel for Kalahari asked for more time since new counsel would be coming in. 1 of 4 FILED: NEW YORK COUNTY CLERK 07/01/2019 03:25 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 07/01/2019 50. The occurrence and rem1tant injuries foregoing plaintiff MCCLAMB due to the carelessñcss, recklessness 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 dangerous, hazardous and trap like condition; in causing, permitting and/or allowing the aforesaid sidewalk to be, become and remain a broken, hazardous and dangerous condition, thereby creating 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 aforesaid place sometime prior to the occurrence ... 5. Plaintiff's Verified Bill of Particulars alleges in pertinent part: 5. The foregoing occurrence and remitant injuries to plaintiff MCCLAMB due to the carelessness, recklessness and negligence 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 s sidewalk to be, become and remain in a dangerous, hazardous trap like condition; in causing, permitting and/or allowing aforesaid sidewalk to be, become and remain in a broken, hazardous and dangerous condition, thereby creating and constituting a tr 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; 23.-24. ... Defendant had actual notice of said conditions in they caused, created, permitted, allowed and/or were aware of conditions ... 6. The theory of cause and create is a major theme in plaintiff's compla 2 of 4 particulars. In response to a co-defedant's motion to dismiss (who faced the FILED: NEW YORK COUNTY CLERK 07/01/2019 03:25 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 07/01/2019 7. While documentary evidcñce may not be the standard in s"mm j def-dan+ still needed some or evidcñce that did not cause and testimony they However, in response, all Def-ñdañt HOUSING can say is that they were not area; that is not the end of the analysis. Since plaintiff has alleged cause and c def--=d==± has done to rebut this motion must be denied withõüt neal-g them, since they have not even sat for a deposition yet despite being ordered to do so. Defed=ñts' WHEREFORE, it is respectfully requested that motion entirety. Pursuant to 22 NYCRR § 130-1.1, the undersigñcd, an attorney ad=Mcd to practi of New York State, certifies that, upon information and belief and reasonable in contentions contained in this document are not frivolous. Dated: New York, NY July 1, 2019 RHEINGOLD GlUFFRA RUFFO & PLOTKIN L Attorneys for Plaintiff YVETTE MCCLAMB By: Jeremy A. Hellman, Esq. 2981 551 Fifth Avenue, Floor New York, NY 10176 Tel: (212) 684-1880 Fax: (212) 689-8156 jhe''mañ@rheingoldlaw.com 3 of 4 FILED: NEW YORK COUNTY CLERK 07/01/2019 03:25 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 07/01/2019 BLAKELY LLP Attorneys for Defendant WEST NEW YORK RESTORATION OF CT, INC. 805 Third Avenue, 8th Floor New York, New York 10022 sbernstein@blakelyllp.com FRENCH & CASEY Attorneys for Defendants KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM, and WALLACK MANAGEMENT CO. 29 Broadway New York, New York 10006 sedwards@frenchcasey.com PERRY, VAN ETTEN, ROZANSKI & PRIMAVERA LLP. Attorneys for Defendant RNC INDUSTRIES 60 Broad Street, Suite 3600A New York, New York 10004 kjkutner@pvrplaw.com 4 of 4