Preview
FILED: NEW YORK COUNTY CLERK 07/26/2019 12:41 PM INDEX NO. 154374/2018
NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 07/26/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-----------------------------------------------------------------------------X
YVETTE McCLAMB, Index No. 154374/2018
Plaintiff,
- against -
REPLY AFFIRMATION
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.
------------------------- --------------------------------------------X
JANET L.H. SMITELLI, an attorney duly admitted to practice law before the Courts of
the State of New York hereby sets forth the following pursuant to CPLR Section 2106:
1. I am associated as Counsel with the Law Firm of Devitt Spellman Barrett LLP.,
attorneys for Defendant Movant, HOUSING PARTNERSHIP DEVELOPMENT
CORPORATION, and, as such, submit this Affirmation in Reply and in further support of our
Motion for Summary Judgment now returnable before this Court on August 8, 2019.
2. Contrary to the only opposition received in response to the instant motion,
Defendant HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, has proven as a
matter of law that they should be dismissed from this action as they were not the owners, nor
contractors, of this project on the accident date. Moreover, the conduction of party depositions is
not a prerequisite herein to such a granting by this Court.
3. Defendant HOUSING PARTNERSHIP DEVELOPMENT CORPORATION is a
non-for-profit corporation and an affordable housing agency located in New York City serving its
five boroughs. Through their work with government agencies and private sector partners,
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FILED: NEW YORK COUNTY CLERK 07/26/2019 12:41 PM INDEX NO. 154374/2018
NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 07/26/2019
HOUSING PARTNERSHIP DEVELOPMENT CORPORATION brings substantial private
investment and economic development into various New York City neighborhoods where the need
for affordable homeownership housing is great.
116th
4. Specifically, for this project at 40 West Street, HOUSING PARTNERSHIP
DEVELOPMENT CORPORATION received funds from the New York State Affordable Housing
Corporation for the development of KALAHARI CONDOMINIUMS to sell units to those below
the area's median income as determined by the United States Department of Housing and Urban
"HUD."
Development As a nonprofit intermediary whose function it is to facilitate the
development and preservation of affordable workforce housing, HOUSING PARTNERSHIP
DEVELOPMENT CORPORATION, was clearly no_t in the business of performing
construction. See Exhibits J, K, & L annexed to this Defendant's motion papers. Plaintiff
attorney's allegation, that HOUSING PARTNERSHIP DEVELOPMENT CORPORATION
somehow caused or created the alleged defective condition is unpersuasive and nothing short of
incredulous.
5. Moreover, no further discovery is needed since HOUSING PARTNERSHIP
DEVELOPMENT CORPORATION'S role had already been clearly set forth in the Certificate
provided for purposes of the determination of a fee title interest to said premises and the
Declaration of Condominiums (Motion Exhibit J); and as also found in the AIA Construction
Agreement between defendant owner KALAHARI CONDOMINIUMS and defendant contractor
WEST NEW YORK RESTRORATION OF CT (Motion Exhibit K), and in the sworn Affidavit
from Daniel Marks Cohen, VP and Dir. of Real Estate at HPDC (Motion Exhibit L.) The above
documentary evidence establishes HOUSING PARTNERSHIP DEVELOPMENT
CORPORATION's role in this endeavor without question, therefore, the naked effort to speculate
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that HOUSING PARTNERSHIP DEVELOPMENT CORPORATION may have caused or created
an alleged sidewalk defect is both unfounded and baseless. HOUSING PARTNERSHIP
DEVELOPMENT CORPORATION's ownership interest was transferred years before, they
performed no actual construction and nor did they hire the contractor involved.
6. Furthermore, as also previously set forth in the Affirmation in Support of Defendant
HOUSING PARTNERSHIP DEVELOPMENT CORPORATION's motion, is the Notice to
Admit directed to defendant KALAHARI CONDOMINIUMS (Motion Exhibit I) wherein to date
it has not been disputed that Defendant, HOUSING PARTNERSHIP DEVELOPMENT
CORPORATION, had no ownership interest nor any control, responsibility or involvement at 40
116th
West Street premises at the time the work was performed in or about 2017. HOUSING
PARTNERSHIP DEVELOPMENT CORPORATION also did not hire or enter into any
116th
agreements for the work to be performed at 40 West Street at any time in the five years prior
to Plaintiffs August 22, 2017 accident date.
7. The empty and unsupported claims against HOUSING PARTNERSHIP
DEVELOPMENT CORPORATION are simply feigned issues of fact alleged in an effort to
preclude summary judgment. In fact, Plaintiff, for their opposition herein submitted these very
same arguments as they did in their opposition to Defendant WEST NEW YORK
RESTORATION OF CT, INC.'s prior motion for summary judgment some months before. The
differences, however, in the responsibilities and tasks these two moving defendants had in this
condominium project are vast and pronounced since Defendant, WEST NEW YORK
RESTORATION OF CT, INC. a construction corporation, was a contractor in this project who
claimed to have completed his physical work there two weeks before to the accident date.
Summary judgment should not be denied herein just because a prior contractor's motion was.
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Again, HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, was an intermediary
and facilitator in the development of affordable housing, not an entity that performs construction
work and these facts have not been disputed.
8. Finally, summary judgment was not premature and should not be avoided herein
by a claim for needed discovery. Plaintiff has failed to present any evidentiary basis for its
suggestion that discovery may lead to relevant evidence. See Bailey v. NYCTA, 270 AD2d 156,
(1st
704 NYS2d 582 Dept. 2000), Progressive Northeastern Ins. Co. V. Penn-Star Ins. Co. 89 AD3d
(1st (13t
547, 934 NYS2d 93 Dept. 2011) and Shalik v. Stein 116 AD3d 604, 983 NYS2d 794 Dept.
2014).
WHEREFORE, itis respectfully requested that this Court grant Defendant HOUSING
PARTNERSHIP DEVELOPMENT CORPORATION's Motion for Summary Judgment and
for such other and further relief as the Court deems just and proper.
Dated: Smithtown, New York
July 26, 2019
Your , tc.,
J et L. H. Smite li
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Preview
FILED: NEW YORK COUNTY CLERK 07/26/2019 12:41 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 07/26/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------------------------X YVETTE McCLAMB, Index No. 154374/2018 Plaintiff, - against - REPLY AFFIRMATION 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. ------------------------- --------------------------------------------X JANET L.H. SMITELLI, an attorney duly admitted to practice law before the Courts of the State of New York hereby sets forth the following pursuant to CPLR Section 2106: 1. I am associated as Counsel with the Law Firm of Devitt Spellman Barrett LLP., attorneys for Defendant Movant, HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, and, as such, submit this Affirmation in Reply and in further support of our Motion for Summary Judgment now returnable before this Court on August 8, 2019. 2. Contrary to the only opposition received in response to the instant motion, Defendant HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, has proven as a matter of law that they should be dismissed from this action as they were not the owners, nor contractors, of this project on the accident date. Moreover, the conduction of party depositions is not a prerequisite herein to such a granting by this Court. 3. Defendant HOUSING PARTNERSHIP DEVELOPMENT CORPORATION is a non-for-profit corporation and an affordable housing agency located in New York City serving its five boroughs. Through their work with government agencies and private sector partners, 1 of 4 FILED: NEW YORK COUNTY CLERK 07/26/2019 12:41 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 07/26/2019 HOUSING PARTNERSHIP DEVELOPMENT CORPORATION brings substantial private investment and economic development into various New York City neighborhoods where the need for affordable homeownership housing is great. 116th 4. Specifically, for this project at 40 West Street, HOUSING PARTNERSHIP DEVELOPMENT CORPORATION received funds from the New York State Affordable Housing Corporation for the development of KALAHARI CONDOMINIUMS to sell units to those below the area's median income as determined by the United States Department of Housing and Urban "HUD." Development As a nonprofit intermediary whose function it is to facilitate the development and preservation of affordable workforce housing, HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, was clearly no_t in the business of performing construction. See Exhibits J, K, & L annexed to this Defendant's motion papers. Plaintiff attorney's allegation, that HOUSING PARTNERSHIP DEVELOPMENT CORPORATION somehow caused or created the alleged defective condition is unpersuasive and nothing short of incredulous. 5. Moreover, no further discovery is needed since HOUSING PARTNERSHIP DEVELOPMENT CORPORATION'S role had already been clearly set forth in the Certificate provided for purposes of the determination of a fee title interest to said premises and the Declaration of Condominiums (Motion Exhibit J); and as also found in the AIA Construction Agreement between defendant owner KALAHARI CONDOMINIUMS and defendant contractor WEST NEW YORK RESTRORATION OF CT (Motion Exhibit K), and in the sworn Affidavit from Daniel Marks Cohen, VP and Dir. of Real Estate at HPDC (Motion Exhibit L.) The above documentary evidence establishes HOUSING PARTNERSHIP DEVELOPMENT CORPORATION's role in this endeavor without question, therefore, the naked effort to speculate 2 of 4 FILED: NEW YORK COUNTY CLERK 07/26/2019 12:41 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 07/26/2019 that HOUSING PARTNERSHIP DEVELOPMENT CORPORATION may have caused or created an alleged sidewalk defect is both unfounded and baseless. HOUSING PARTNERSHIP DEVELOPMENT CORPORATION's ownership interest was transferred years before, they performed no actual construction and nor did they hire the contractor involved. 6. Furthermore, as also previously set forth in the Affirmation in Support of Defendant HOUSING PARTNERSHIP DEVELOPMENT CORPORATION's motion, is the Notice to Admit directed to defendant KALAHARI CONDOMINIUMS (Motion Exhibit I) wherein to date it has not been disputed that Defendant, HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, had no ownership interest nor any control, responsibility or involvement at 40 116th West Street premises at the time the work was performed in or about 2017. HOUSING PARTNERSHIP DEVELOPMENT CORPORATION also did not hire or enter into any 116th agreements for the work to be performed at 40 West Street at any time in the five years prior to Plaintiffs August 22, 2017 accident date. 7. The empty and unsupported claims against HOUSING PARTNERSHIP DEVELOPMENT CORPORATION are simply feigned issues of fact alleged in an effort to preclude summary judgment. In fact, Plaintiff, for their opposition herein submitted these very same arguments as they did in their opposition to Defendant WEST NEW YORK RESTORATION OF CT, INC.'s prior motion for summary judgment some months before. The differences, however, in the responsibilities and tasks these two moving defendants had in this condominium project are vast and pronounced since Defendant, WEST NEW YORK RESTORATION OF CT, INC. a construction corporation, was a contractor in this project who claimed to have completed his physical work there two weeks before to the accident date. Summary judgment should not be denied herein just because a prior contractor's motion was. 3 of 4 FILED: NEW YORK COUNTY CLERK 07/26/2019 12:41 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 07/26/2019 Again, HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, was an intermediary and facilitator in the development of affordable housing, not an entity that performs construction work and these facts have not been disputed. 8. Finally, summary judgment was not premature and should not be avoided herein by a claim for needed discovery. Plaintiff has failed to present any evidentiary basis for its suggestion that discovery may lead to relevant evidence. See Bailey v. NYCTA, 270 AD2d 156, (1st 704 NYS2d 582 Dept. 2000), Progressive Northeastern Ins. Co. V. Penn-Star Ins. Co. 89 AD3d (1st (13t 547, 934 NYS2d 93 Dept. 2011) and Shalik v. Stein 116 AD3d 604, 983 NYS2d 794 Dept. 2014). WHEREFORE, itis respectfully requested that this Court grant Defendant HOUSING PARTNERSHIP DEVELOPMENT CORPORATION's Motion for Summary Judgment and for such other and further relief as the Court deems just and proper. Dated: Smithtown, New York July 26, 2019 Your , tc., J et L. H. Smite li 4 of 4