Preview
FILED: NEW YORK COUNTY CLERK 08/01/2019 05:14 PM INDEX NO. 154374/2018
NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 08/01/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
---------------------------- ¬----------X
Index No.: 154374/2018
YVETTE MCCLAMB, Motion Sequence No. 2
Plaintiffs,
-against-
AFFIRMATION IN OPPOSITION
HOUSING PARTNERSHIP DEVELOPMENT
CORPORATION, KALAHARI CONDOMINIUM, .
THE BOARD OF MANAGERS OF KALAHARI
1
CONDOMINIUM, WALLACK MANAGEMENT CO.,
Return Date: August 8, 2019
INC., RNC INDUSTRIES, LLC. AND WEST NEW
YORK RESTORATION OF CT,
Defendants.
____________________________---------- --X
Sean O. Edwards, 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 French & Casey, LLP, attorneys for the
defendants KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI
and WALLACK MANAGEMENT INC. in the above-
CONDOMINIUM, CO., ("Kalahari")
captioned matter, and as such I am fully familiar with the pleadings and proceedings heretofore
had herein.
2. I submit this affirmation in opposition to the motion for summary judgment of
defendant HOUSING PARTNERSHIP DEVELOPMENT CORPORATION ("HPDC").
3. This action arises out of an alleged trip-and-fall accident which plaintiff claims
occurred on August 22, 2017 on the sidewalk at 40 West 116th Street, New York, New York.
4. Plaintiff commenced this action in New York Supreme Court, New York County
on or about May 10, 2018. A copy of the Summons and Complaint is annexed hereto as Exhibit
"A".
1 of 6
FILED: NEW YORK COUNTY CLERK 08/01/2019 05:14 PM INDEX NO. 154374/2018
NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 08/01/2019
5. Issue was joined by defendant Kalahari on or about July 10, 2018. A copy of the
Answer is annexed hereto as Exhibit "B".
6. Issue was joined by defendants HPCD, RNC INDUSTRIES, LLC, and WEST
NEW YORK RESTORATION OF CT, INC. A copy of the answers is annexed hereto as Exhibit
"C"
and a copy of the Answers and Replies to the Crosselaims of the defendants against each other
is annexed hereto as Exhibit "D".
7. On or about June 3, 2019, defendant HPCD filed a motion for summary judgment.
A copy of the motion is annexed hereto as Exhibit "E".
8. This motion must be denied upon two separate grounds: 1) HPCD has failed to
meet itsinitial burden as movant to demonstrate that they did not cause or create the subject defect;
2) the motion is premature as depositions have not been held to dispose of the question of fact as
to HPCD's ownership interest in the property on August 22, 2017.
9. "A defendant moving for summary judgment in a slip-and-fall action has the initial
burden of showing that it neither created, nor had actual or constructive notice of the dangerous
injury."
condition that cause plaintiff's Ross v. Berry G. Reader Revocable Trust, 86 A.D.3d 419,
421, 927 N.Y.S2d 49 (1st Dep't 2011).
10. Here the plaintiff's complaint alleges that the defendants, including HPCD, caused
the dangerous condition that led to her alleged slip-and-fall. S_ee Ex. A.
11. Movant has offered no proof that they did not create the subject dangerous
condition and therefore has failed to meet its initial burden for summary judgment.
12. Instead of proffering evidentiary facts to prove its prima facie case that would
entitle it to summary judgment on the grounds that HPCD did not create the subject dangerous
condition, HPCD relies on an argument that itdid not have any ownership interests in the premises
2
2 of 6
FILED: NEW YORK COUNTY CLERK 08/01/2019 05:14 PM INDEX NO. 154374/2018
NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 08/01/2019
on the date of the alleged accident. HPCD argues that ifit has no ownership interests it isnot a
proper defendant and therefore has no duty to manage, maintain, control, operate or occupy the
subject property. Winegrad v. NYU Medical Center, 64 N.Y. 2d 178 (1985).
13. Co-defendant RNC Industries made a similar motion on the grounds that they were
not owners of the subject premises, however Judge Kotler of this Court noted its his decision
denying that motion:
While there is no dispute that movant [RNC INDUSTRIES, LLC]
does not own the subject property, movant has failed to establish
prima facie entitlement to dismissal. Certainly, plaintiff has stated a
cause of action based upon a theory that movant caused or created
the defective condition upon which plaintiff tripped. Otherwise,
movant has failed to come forward with documentary evidence
which conclusively establishes that it did not cause or create the
subject defective condition. For at least these reasons, the motion
must be denied.
A copy of that Decision is attached hereto as Exhibit "F".
14. HPCD similarly asserts that it isentitled to summary judgment because it was not
the owner of the subject premises at the time of the accident. However, in paragraphs 7-11 of the
Affirmation in Support of HPCD's motion (See June 3, 2019 Affirmation of Janet H. Smitelli), the
movants concede that at some point prior to plaintiff's alleged accident HPCD had an ownership
interest in the premises and common areas, that was transferred or submitted wholly or in part to
the defendants KALAHARI CONDOMINIUMS/BOARD OF DIRECTOR OF THE KALAHARI
CONDOMINIUMS.
15. The parties in this matter should be entitled to depositions to explore the timeline
and veracity of the assertion that HPCD's interests had been completely divested at or about the
date of loss, and whether HPCD had no ownership interest in the premises on the date of loss
sufficient to be a proper defendant with an owner's duty to maintain the property in question.
3
3 of 6
FILED: NEW YORK COUNTY CLERK 08/01/2019 05:14 PM INDEX NO. 154374/2018
NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 08/01/2019
16. In State of New York v. Metz (241 A.D.2d 192) the court determined that
deposition * * * is higher order of proof than an affidavit. An
"'testimony by a affidavit, usually
prepared by a lawyer, and signed by the affiant, is hardly the equivalent in value of a deposition
attorney.'"
by question and answer, especially when the questioning is done by the adverse (S_tate
of New York v. Metz, supra, at 200). In Metz, the Courts determined that a Martin Act deposition
where the affiant was not subjected to cross-examination was tantamount to an affidavit prepared
by a lawyer, and signed by the affiant and not the equivalent in value of a deposition by question
and answer, especially when the questioning is done by the adverse attorney. (State of New York
v. Metz, supra, at 200).
17. Accordingly, while the movant's supporting evidence came in the form of an affidavit
from Daniel Marks Cohen submitting to the Court that there were no ownership interests by HPCD
in the property at the time of the claimed accident, where the outcome of the motion may be
impacted by such statements the same should be subject to depositions and cross-examination
consistent with Metz. (See also, Sipos v. Bridgeville Realty, 177 Misc. 2d 840, 842-44 (N.Y.
Misc. 1998)).
18. While this court may ultimately find for HPCD, summary judgment is,nevertheless,
premature. Questions of fact remain as to whether HPCD caused or created the condition or had
ownership interests in the subject property at the time of the accident. Where triable issues exist,
the drastic remedy of summary judgment must be denied (see, Zuckerman v. City of New York,
49 N.Y.2d 557, 562; Andre v. Pomeroy, 35 N.Y.2d 361). Accordingly, HPCD's motion for
summary judgment dismissing the complaint and the respective crosselaims should be denied.
Sipos v. Bridgeville Realty, supra at 842-844.
4
4 of 6
FILED: NEW YORK COUNTY CLERK 08/01/2019 05:14 PM INDEX NO. 154374/2018
NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 08/01/2019
WHEREFORE, itis respectfully requested that defendant HPCD's motion be denied in its
entirety.
Dated: New York, New York
August 1, 2019
FRENCH & CASEY, LLP
Sean O. Edwards, Esq.
Attorneys for Defendants
KALAHARI CONDOMINIUM, THE
BOARD OF MANAGERS OF
KALAHARI CONDOMINIUM, and
WALLACK MANAGEMENT CO.,
INC.
29 Broadway, 27th Floor
New York, New York 10006
212-797-3544
To: See Rider
5
5 of 6
FILED: NEW YORK COUNTY CLERK 08/01/2019 05:14 PM INDEX NO. 154374/2018
NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 08/01/2019
RIDER
REHEINGOLD GIUFFRA RUFFO & PLOTKIN LLP
Attorneys for Plaintiff
YVETTE MCCLAMB
551 Fifth Ave., 29th Floor
New York, NY 10176
212-684-1880
DEVITT SPELLMAN BARRETT, LLP
Attorneys for Defendant
HOUSING PARTNERSHIP DEVELOPMENT CORPORATION
50 Route 111, Suite 314
Smithtown, NY 11787
631-724-8833
File No.: HC8645W9
BLAKELY LLP
Attorneys for Defendant
WEST NEW YORK RESTORATION OF CT, INC.
805 Third Ave., 8th Floor
New York, NY 10022
Sbernstein@blakelyllp.com
PERRY, VAN ETTEN, ROZANSKI & PRIMAVERA LLP
Attorneys for Defendant
RNC INDUSTRIES
60 Broad St., Suite 3600A
New York, NY 10004
kjkutner@pvrplaw.com
6
6 of 6
Preview
FILED: NEW YORK COUNTY CLERK 08/01/2019 05:14 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 08/01/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------- ¬----------X Index No.: 154374/2018 YVETTE MCCLAMB, Motion Sequence No. 2 Plaintiffs, -against- AFFIRMATION IN OPPOSITION HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, KALAHARI CONDOMINIUM, . THE BOARD OF MANAGERS OF KALAHARI 1 CONDOMINIUM, WALLACK MANAGEMENT CO., Return Date: August 8, 2019 INC., RNC INDUSTRIES, LLC. AND WEST NEW YORK RESTORATION OF CT, Defendants. ____________________________---------- --X Sean O. Edwards, 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 French & Casey, LLP, attorneys for the defendants KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI and WALLACK MANAGEMENT INC. in the above- CONDOMINIUM, CO., ("Kalahari") captioned matter, and as such I am fully familiar with the pleadings and proceedings heretofore had herein. 2. I submit this affirmation in opposition to the motion for summary judgment of defendant HOUSING PARTNERSHIP DEVELOPMENT CORPORATION ("HPDC"). 3. This action arises out of an alleged trip-and-fall accident which plaintiff claims occurred on August 22, 2017 on the sidewalk at 40 West 116th Street, New York, New York. 4. Plaintiff commenced this action in New York Supreme Court, New York County on or about May 10, 2018. A copy of the Summons and Complaint is annexed hereto as Exhibit "A". 1 of 6 FILED: NEW YORK COUNTY CLERK 08/01/2019 05:14 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 08/01/2019 5. Issue was joined by defendant Kalahari on or about July 10, 2018. A copy of the Answer is annexed hereto as Exhibit "B". 6. Issue was joined by defendants HPCD, RNC INDUSTRIES, LLC, and WEST NEW YORK RESTORATION OF CT, INC. A copy of the answers is annexed hereto as Exhibit "C" and a copy of the Answers and Replies to the Crosselaims of the defendants against each other is annexed hereto as Exhibit "D". 7. On or about June 3, 2019, defendant HPCD filed a motion for summary judgment. A copy of the motion is annexed hereto as Exhibit "E". 8. This motion must be denied upon two separate grounds: 1) HPCD has failed to meet itsinitial burden as movant to demonstrate that they did not cause or create the subject defect; 2) the motion is premature as depositions have not been held to dispose of the question of fact as to HPCD's ownership interest in the property on August 22, 2017. 9. "A defendant moving for summary judgment in a slip-and-fall action has the initial burden of showing that it neither created, nor had actual or constructive notice of the dangerous injury." condition that cause plaintiff's Ross v. Berry G. Reader Revocable Trust, 86 A.D.3d 419, 421, 927 N.Y.S2d 49 (1st Dep't 2011). 10. Here the plaintiff's complaint alleges that the defendants, including HPCD, caused the dangerous condition that led to her alleged slip-and-fall. S_ee Ex. A. 11. Movant has offered no proof that they did not create the subject dangerous condition and therefore has failed to meet its initial burden for summary judgment. 12. Instead of proffering evidentiary facts to prove its prima facie case that would entitle it to summary judgment on the grounds that HPCD did not create the subject dangerous condition, HPCD relies on an argument that itdid not have any ownership interests in the premises 2 2 of 6 FILED: NEW YORK COUNTY CLERK 08/01/2019 05:14 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 08/01/2019 on the date of the alleged accident. HPCD argues that ifit has no ownership interests it isnot a proper defendant and therefore has no duty to manage, maintain, control, operate or occupy the subject property. Winegrad v. NYU Medical Center, 64 N.Y. 2d 178 (1985). 13. Co-defendant RNC Industries made a similar motion on the grounds that they were not owners of the subject premises, however Judge Kotler of this Court noted its his decision denying that motion: While there is no dispute that movant [RNC INDUSTRIES, LLC] does not own the subject property, movant has failed to establish prima facie entitlement to dismissal. Certainly, plaintiff has stated a cause of action based upon a theory that movant caused or created the defective condition upon which plaintiff tripped. Otherwise, movant has failed to come forward with documentary evidence which conclusively establishes that it did not cause or create the subject defective condition. For at least these reasons, the motion must be denied. A copy of that Decision is attached hereto as Exhibit "F". 14. HPCD similarly asserts that it isentitled to summary judgment because it was not the owner of the subject premises at the time of the accident. However, in paragraphs 7-11 of the Affirmation in Support of HPCD's motion (See June 3, 2019 Affirmation of Janet H. Smitelli), the movants concede that at some point prior to plaintiff's alleged accident HPCD had an ownership interest in the premises and common areas, that was transferred or submitted wholly or in part to the defendants KALAHARI CONDOMINIUMS/BOARD OF DIRECTOR OF THE KALAHARI CONDOMINIUMS. 15. The parties in this matter should be entitled to depositions to explore the timeline and veracity of the assertion that HPCD's interests had been completely divested at or about the date of loss, and whether HPCD had no ownership interest in the premises on the date of loss sufficient to be a proper defendant with an owner's duty to maintain the property in question. 3 3 of 6 FILED: NEW YORK COUNTY CLERK 08/01/2019 05:14 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 08/01/2019 16. In State of New York v. Metz (241 A.D.2d 192) the court determined that deposition * * * is higher order of proof than an affidavit. An "'testimony by a affidavit, usually prepared by a lawyer, and signed by the affiant, is hardly the equivalent in value of a deposition attorney.'" by question and answer, especially when the questioning is done by the adverse (S_tate of New York v. Metz, supra, at 200). In Metz, the Courts determined that a Martin Act deposition where the affiant was not subjected to cross-examination was tantamount to an affidavit prepared by a lawyer, and signed by the affiant and not the equivalent in value of a deposition by question and answer, especially when the questioning is done by the adverse attorney. (State of New York v. Metz, supra, at 200). 17. Accordingly, while the movant's supporting evidence came in the form of an affidavit from Daniel Marks Cohen submitting to the Court that there were no ownership interests by HPCD in the property at the time of the claimed accident, where the outcome of the motion may be impacted by such statements the same should be subject to depositions and cross-examination consistent with Metz. (See also, Sipos v. Bridgeville Realty, 177 Misc. 2d 840, 842-44 (N.Y. Misc. 1998)). 18. While this court may ultimately find for HPCD, summary judgment is,nevertheless, premature. Questions of fact remain as to whether HPCD caused or created the condition or had ownership interests in the subject property at the time of the accident. Where triable issues exist, the drastic remedy of summary judgment must be denied (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562; Andre v. Pomeroy, 35 N.Y.2d 361). Accordingly, HPCD's motion for summary judgment dismissing the complaint and the respective crosselaims should be denied. Sipos v. Bridgeville Realty, supra at 842-844. 4 4 of 6 FILED: NEW YORK COUNTY CLERK 08/01/2019 05:14 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 08/01/2019 WHEREFORE, itis respectfully requested that defendant HPCD's motion be denied in its entirety. Dated: New York, New York August 1, 2019 FRENCH & CASEY, LLP Sean O. Edwards, Esq. Attorneys for Defendants KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM, and WALLACK MANAGEMENT CO., INC. 29 Broadway, 27th Floor New York, New York 10006 212-797-3544 To: See Rider 5 5 of 6 FILED: NEW YORK COUNTY CLERK 08/01/2019 05:14 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 08/01/2019 RIDER REHEINGOLD GIUFFRA RUFFO & PLOTKIN LLP Attorneys for Plaintiff YVETTE MCCLAMB 551 Fifth Ave., 29th Floor New York, NY 10176 212-684-1880 DEVITT SPELLMAN BARRETT, LLP Attorneys for Defendant HOUSING PARTNERSHIP DEVELOPMENT CORPORATION 50 Route 111, Suite 314 Smithtown, NY 11787 631-724-8833 File No.: HC8645W9 BLAKELY LLP Attorneys for Defendant WEST NEW YORK RESTORATION OF CT, INC. 805 Third Ave., 8th Floor New York, NY 10022 Sbernstein@blakelyllp.com PERRY, VAN ETTEN, ROZANSKI & PRIMAVERA LLP Attorneys for Defendant RNC INDUSTRIES 60 Broad St., Suite 3600A New York, NY 10004 kjkutner@pvrplaw.com 6 6 of 6