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FILED: NEW YORK COUNTY CLERK 06/04/2019 10:17 AM INDEX NO. 154374/2018
NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 06/04/2019
Mot. Seq.: c
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
.........--..---------------------------- -----X
YVETTE MCCLAMB,
Index No.: 154374/2018
Plaintiff,
AFFIRMATION IN
- against - SUPPORT
HOUSING PARTNERSHIP DEVELOPMENT Return Date: 07/08/2019
CORPORATION, KALAHARI CONDOMINIUM, THE
BOARD OF MANAGERS OF KALAHARI Assigned To:
CONDOMINIUM, WALLACK MANAGEMENT CO., Hon. Lynn R. Kotler
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 affirms the following under penalties of perjury and pursuant to
CPLR § 2106.
1. I am associated as Counsel with the Law Firm of Devitt, Spelhnan, Barrett, LLP,
attorneys for HOUSING PARTNERSHIP OF DEVELOPMENT CORPORATION (hereinafter
referred to as HPDC) and as such, am familiar with this legal action as referenced by the file
maintained at our office.
2. I submit this affirmation in support of HPDC's Motion for Summary Judgment
pursuant to CPLR § 3212 requesting a dismissal of Plaintiffs Complaint in its entirety and
granting Defendant HPDC judgment against the Plaintiff as a matter of law, and dismissing all
Co-Defendant cross-claims asserted against HPDC and, for such other and further relief as may
be deemed just and proper.
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3. This action arises out of a trip-and-fall accident which occurred on August 22,
2017, while Plaintiff YVETTE MCCLAMB was walking on the sidewalk at 40 West 116th
Street, New York, New York at approximately 6:15pm. Annexed hereto as Defendant's Exhibit
A is a copy of the Summons and Complaint dated May 10, 2018. Annexed hereto as Exhibit B
is a copy of the Answer of HPDC dated August 2, 2018. Annexed hereto as Exhibit C is a copy
of the Answer and Cross-claims of Defendant KALAHARI CONDOMINIUMS, THE BOARD
OF MANAGER OF KALAHARI CONDOMINIUMS, and WALLACK MANAGEMENT
COMPANY, INC.(hereinafter often collectively referred to as KALAHARI.) Annexed hereto
as Exhibit D is the Answer and Cross-claims of Co-Defendant RNC INDUSTRIES, LLC.
Annexed hereto as Exhibit E is a copy of the Answer and Cross-claims of Co-Defendant WEST
NEW YORK RESTORATION OF CT INCORPORATED. And finally, annexed hereto
collectively as Exhibit F are the Answers and replies to the Cross-claims of the Defendants
against each other.
4. A .Billof Particulars was served in this action by the Plaintiffs pursuant to the
demands of Defendants HPDC on or about October 24, 2018. Annexed hereto as Exhibit G is a
copy of Plaintiffs Bill of Particulars against Defendant HPDC. Within this amplified pleading
are claims that Defendant .HPDC was negligent, careless, and reckless in their ownership,
operation, management, maintenance, and control of said premises which caused Plaintiffs
alleged accident of August 22, 2017. As will be seen, Defendant HPDC did not own, operate,
manage, ntaktain, or control said premises at or about this claimed accident date and should
therefore be granted summary judgment in this action.
5. Moreover, annexed hereto as Exhibit H is HPDC's Response to Plaintiffs
Demand for a Bill of Particulars as to the affirmative defenses.
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6. Depositions have not yet been conducted in this action; however, it has been
revealed during prior discovery and motion practice that Plaintiff claims to have tripped and
fallen over masonite boards that had been covering the entrance in the common areas over the
sidewalk at 40 West 116th Street, New York, New York,
7. Annexed hereto as Exhibit I is a copy of the Notice to Admit served by HPDC on
January 10, 2019, directed to Defendants KALAHARL Within this Notice to Admit, we had
requested either an admission or a denial of the following:
A) Pursuant to site development agreement dated June 20, 2005, and any
amendment thereto, KALAHARI Defendants, not HPDC, were responsible for
maintaining the sidewalk and common areas at 40 West 116th Street at alltimes relevant
to Plaintiffs Complaint. To date, this Notice to Admit had not been denied and therefore
is deemed admitted
B) HPDC did not have any ownership interests in 40 West 116th Street
property on the date of Plaintiffs alleged accident of August 22, 2017. To date, this
Notice to Admit had not been denied and therefore is deemed admitted
C) HPDC did not have any responsibility for the operating, managing,
controlling, inaintaining, or repairing the property at 40 West 116th Street on the date of
Plaintiffs accident of August 22, 2017. To date, this Notice to Admit had not been denied
and therefore is deemed admitted
D) HPDC did not have any ownership interest or involvement in the
management, maintenance, operation, etc. at 40 West 116th Street premises at the time
the work was performed in or about 2017. To date, this Notice to Admit had not been
denied and therefore is deemed admitted
E) HPDC did not hire or enter into any agreements for the work to be
performed at 40 West 116th Street at any time in the five years prior to Plaintiffs August
22, 2017 accident. To date, this Notice to Admit had not been denied and therefore is
deemed admitted
8. Annexed hereto as Exhibit J is a Certification pursuant to CPLR Rule 4523 as
against the premises known as 40 West 116th Street, New York, New York known as the
KALAHARI CONDOMINIUM. This Certification resulted from a chain of title search made
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for the purposes of determination of a fee title interest in and to said premises as of August 22,
2017. A copy of this Certification and search results is annexed hereto as Exhibit J. The fee
title interest in and to the common elements of the condominium premises described hereinabove
lie with the unit owners of the condominium in a proportional percentage interest therein as set
forth in the Declaration of Condominiums dated June 29, 2007, and recorded on August 27,
2007, and as amended by the Amendments dated June 11, 2008, and recorded June 17, 2008, and
by the Amendment dated June 10, 2008, recorded July 8, 2008.
9. This Declaration and the Amendments thereto pursuant to Article 9(b) of the Real
Property Law of the State of New York establish that the BOARD OF MANAGERS OF
KALAHARI CONDOMINIUMS, for purposes of operation and maintenance of the common
elements thereof, are owners.
10. Moreover, annexed hereto as Exhibit K is a copy of the Agreement between
owner and contractor for construction at the subject premises. This Contract or Agreement for
Construction is dated April 29, 2015, and names KALAHARI CONDOMINIUMS as owner and
WEST NEW YORK RESTORATION OF CT, INC., as the contractor.
11. Finally, annexed hereto as Exhibit L is a sworn Affidavit from Daniel Marks
Cohen, Vice President and Director of Real Estate for HPDC, with offices at 253 West 35th
Street, Third Floor, New York, New York. Mr. Cohen in his Affidavit confirms that there was
no ownership interest in the premises or in the common areas located at said address on the
accident date and again states to the Declaration of Condominiums dated June 4, 2007, as the
date when Declarant HPDC's total fee interest including the common areas was submitted to the
KALAHARI CONDOMINIUMS/BOARD OF DIRECTOR OF THE KALAHARI
CONDOMINIUMS.
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12. Accordingly, since HPDC did not own, nor manage, maintain, control, operate, or
occupy the subject property on the subject date of August 22, 2017, HPDC is not a proper
Defendant in this negligence action and should be granted summary judgment.
13, Itis well settled that an owner or occupant of property owes a duty to maintain
said property in a reasonably safe condition so as to prevent injuries to those foreseeably present,
citing Basso v. Miller at 49 N.Y. 2d 233 (1976). Here, the Defendant HPDC did not own, nor
occupy, nor use the property abutting the sidewalk where Plaintiff allegedly fell, and there is no
indication that they created this complained condition. As can be seen by the contract between
owner and contractor, there is also no control or duty to maintain or repair retained by HPDC or
cited to that HPDC had any responsibility with reference to this subject premises on this accident
date.
14. Once a movant has met its initial burden on a motion for summary judgment to
set forth evidentiary facts to prove itsprima facie case that would entitle itto summary judgment
without the need for trial,the burden then shifts to the opponents to bring forth evidence that
there is a material question of fact. See Wineerad v. NYU Medical Center, 64 N.Y. 2d 178
(1985) and Zuckerman v. The City of New York, 49 N.Y. 2d 557 (1980). And finally, it is well
settled law that "a conclusion that a defendant is not liable to a plaintiff for injuries sustained by
him necessarily defeats the cross-claims for indemnification and contribution asserted against
that defendant by the other defendants". See Stone v. Williams, 64 N.Y. 2d 639 (1984).
15. Based on the evidence herein, Defendant HPDC has met its prima facie burden
and demonstrated its right to summary judgment as it did not have any ownership interests or
retained any control or supervision over said common areas of the subject premises on the date
of this accident. As such, there are no issues of fact which would require a trial as to HPDC and
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this Defendant's Summary Judgment Motion seeking a dismissal of all causes of actio11 and
cross-claims against itmust be herein granted.
16. No prior application for the relief herein has been submitted.
WHEREFORE, it is respectfully requested that this Court issue an Order granting
summary judgment in favor of HPDC pursuant to CPLR Section 3212 dismissing the Plaintiffs
complaint as and against Defendant HPDC, as well as dismissing all cross-claims against
Defendant HPDC as they bear no liability herein and for any such further relief as this court may
deem just and proper.
Dated: Smithtown, New York
June 3, 2019
T L. I . SMIT LLI
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Preview
FILED: NEW YORK COUNTY CLERK 06/04/2019 10:17 AM INDEX NO. 154374/2018 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 06/04/2019 Mot. Seq.: c SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK .........--..---------------------------- -----X YVETTE MCCLAMB, Index No.: 154374/2018 Plaintiff, AFFIRMATION IN - against - SUPPORT HOUSING PARTNERSHIP DEVELOPMENT Return Date: 07/08/2019 CORPORATION, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI Assigned To: CONDOMINIUM, WALLACK MANAGEMENT CO., Hon. Lynn R. Kotler 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 affirms the following under penalties of perjury and pursuant to CPLR § 2106. 1. I am associated as Counsel with the Law Firm of Devitt, Spelhnan, Barrett, LLP, attorneys for HOUSING PARTNERSHIP OF DEVELOPMENT CORPORATION (hereinafter referred to as HPDC) and as such, am familiar with this legal action as referenced by the file maintained at our office. 2. I submit this affirmation in support of HPDC's Motion for Summary Judgment pursuant to CPLR § 3212 requesting a dismissal of Plaintiffs Complaint in its entirety and granting Defendant HPDC judgment against the Plaintiff as a matter of law, and dismissing all Co-Defendant cross-claims asserted against HPDC and, for such other and further relief as may be deemed just and proper. 1 of 6 FILED: NEW YORK COUNTY CLERK 06/04/2019 10:17 AM INDEX NO. 154374/2018 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 06/04/2019 3. This action arises out of a trip-and-fall accident which occurred on August 22, 2017, while Plaintiff YVETTE MCCLAMB was walking on the sidewalk at 40 West 116th Street, New York, New York at approximately 6:15pm. Annexed hereto as Defendant's Exhibit A is a copy of the Summons and Complaint dated May 10, 2018. Annexed hereto as Exhibit B is a copy of the Answer of HPDC dated August 2, 2018. Annexed hereto as Exhibit C is a copy of the Answer and Cross-claims of Defendant KALAHARI CONDOMINIUMS, THE BOARD OF MANAGER OF KALAHARI CONDOMINIUMS, and WALLACK MANAGEMENT COMPANY, INC.(hereinafter often collectively referred to as KALAHARI.) Annexed hereto as Exhibit D is the Answer and Cross-claims of Co-Defendant RNC INDUSTRIES, LLC. Annexed hereto as Exhibit E is a copy of the Answer and Cross-claims of Co-Defendant WEST NEW YORK RESTORATION OF CT INCORPORATED. And finally, annexed hereto collectively as Exhibit F are the Answers and replies to the Cross-claims of the Defendants against each other. 4. A .Billof Particulars was served in this action by the Plaintiffs pursuant to the demands of Defendants HPDC on or about October 24, 2018. Annexed hereto as Exhibit G is a copy of Plaintiffs Bill of Particulars against Defendant HPDC. Within this amplified pleading are claims that Defendant .HPDC was negligent, careless, and reckless in their ownership, operation, management, maintenance, and control of said premises which caused Plaintiffs alleged accident of August 22, 2017. As will be seen, Defendant HPDC did not own, operate, manage, ntaktain, or control said premises at or about this claimed accident date and should therefore be granted summary judgment in this action. 5. Moreover, annexed hereto as Exhibit H is HPDC's Response to Plaintiffs Demand for a Bill of Particulars as to the affirmative defenses. 2 of 6 FILED: NEW YORK COUNTY CLERK 06/04/2019 10:17 AM INDEX NO. 154374/2018 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 06/04/2019 6. Depositions have not yet been conducted in this action; however, it has been revealed during prior discovery and motion practice that Plaintiff claims to have tripped and fallen over masonite boards that had been covering the entrance in the common areas over the sidewalk at 40 West 116th Street, New York, New York, 7. Annexed hereto as Exhibit I is a copy of the Notice to Admit served by HPDC on January 10, 2019, directed to Defendants KALAHARL Within this Notice to Admit, we had requested either an admission or a denial of the following: A) Pursuant to site development agreement dated June 20, 2005, and any amendment thereto, KALAHARI Defendants, not HPDC, were responsible for maintaining the sidewalk and common areas at 40 West 116th Street at alltimes relevant to Plaintiffs Complaint. To date, this Notice to Admit had not been denied and therefore is deemed admitted B) HPDC did not have any ownership interests in 40 West 116th Street property on the date of Plaintiffs alleged accident of August 22, 2017. To date, this Notice to Admit had not been denied and therefore is deemed admitted C) HPDC did not have any responsibility for the operating, managing, controlling, inaintaining, or repairing the property at 40 West 116th Street on the date of Plaintiffs accident of August 22, 2017. To date, this Notice to Admit had not been denied and therefore is deemed admitted D) HPDC did not have any ownership interest or involvement in the management, maintenance, operation, etc. at 40 West 116th Street premises at the time the work was performed in or about 2017. To date, this Notice to Admit had not been denied and therefore is deemed admitted E) HPDC did not hire or enter into any agreements for the work to be performed at 40 West 116th Street at any time in the five years prior to Plaintiffs August 22, 2017 accident. To date, this Notice to Admit had not been denied and therefore is deemed admitted 8. Annexed hereto as Exhibit J is a Certification pursuant to CPLR Rule 4523 as against the premises known as 40 West 116th Street, New York, New York known as the KALAHARI CONDOMINIUM. This Certification resulted from a chain of title search made 3 of 6 FILED: NEW YORK COUNTY CLERK 06/04/2019 10:17 AM INDEX NO. 154374/2018 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 06/04/2019 for the purposes of determination of a fee title interest in and to said premises as of August 22, 2017. A copy of this Certification and search results is annexed hereto as Exhibit J. The fee title interest in and to the common elements of the condominium premises described hereinabove lie with the unit owners of the condominium in a proportional percentage interest therein as set forth in the Declaration of Condominiums dated June 29, 2007, and recorded on August 27, 2007, and as amended by the Amendments dated June 11, 2008, and recorded June 17, 2008, and by the Amendment dated June 10, 2008, recorded July 8, 2008. 9. This Declaration and the Amendments thereto pursuant to Article 9(b) of the Real Property Law of the State of New York establish that the BOARD OF MANAGERS OF KALAHARI CONDOMINIUMS, for purposes of operation and maintenance of the common elements thereof, are owners. 10. Moreover, annexed hereto as Exhibit K is a copy of the Agreement between owner and contractor for construction at the subject premises. This Contract or Agreement for Construction is dated April 29, 2015, and names KALAHARI CONDOMINIUMS as owner and WEST NEW YORK RESTORATION OF CT, INC., as the contractor. 11. Finally, annexed hereto as Exhibit L is a sworn Affidavit from Daniel Marks Cohen, Vice President and Director of Real Estate for HPDC, with offices at 253 West 35th Street, Third Floor, New York, New York. Mr. Cohen in his Affidavit confirms that there was no ownership interest in the premises or in the common areas located at said address on the accident date and again states to the Declaration of Condominiums dated June 4, 2007, as the date when Declarant HPDC's total fee interest including the common areas was submitted to the KALAHARI CONDOMINIUMS/BOARD OF DIRECTOR OF THE KALAHARI CONDOMINIUMS. 4 of 6 FILED: NEW YORK COUNTY CLERK 06/04/2019 10:17 AM INDEX NO. 154374/2018 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 06/04/2019 12. Accordingly, since HPDC did not own, nor manage, maintain, control, operate, or occupy the subject property on the subject date of August 22, 2017, HPDC is not a proper Defendant in this negligence action and should be granted summary judgment. 13, Itis well settled that an owner or occupant of property owes a duty to maintain said property in a reasonably safe condition so as to prevent injuries to those foreseeably present, citing Basso v. Miller at 49 N.Y. 2d 233 (1976). Here, the Defendant HPDC did not own, nor occupy, nor use the property abutting the sidewalk where Plaintiff allegedly fell, and there is no indication that they created this complained condition. As can be seen by the contract between owner and contractor, there is also no control or duty to maintain or repair retained by HPDC or cited to that HPDC had any responsibility with reference to this subject premises on this accident date. 14. Once a movant has met its initial burden on a motion for summary judgment to set forth evidentiary facts to prove itsprima facie case that would entitle itto summary judgment without the need for trial,the burden then shifts to the opponents to bring forth evidence that there is a material question of fact. See Wineerad v. NYU Medical Center, 64 N.Y. 2d 178 (1985) and Zuckerman v. The City of New York, 49 N.Y. 2d 557 (1980). And finally, it is well settled law that "a conclusion that a defendant is not liable to a plaintiff for injuries sustained by him necessarily defeats the cross-claims for indemnification and contribution asserted against that defendant by the other defendants". See Stone v. Williams, 64 N.Y. 2d 639 (1984). 15. Based on the evidence herein, Defendant HPDC has met its prima facie burden and demonstrated its right to summary judgment as it did not have any ownership interests or retained any control or supervision over said common areas of the subject premises on the date of this accident. As such, there are no issues of fact which would require a trial as to HPDC and 5 of 6 FILED: NEW YORK COUNTY CLERK 06/04/2019 10:17 AM INDEX NO. 154374/2018 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 06/04/2019 this Defendant's Summary Judgment Motion seeking a dismissal of all causes of actio11 and cross-claims against itmust be herein granted. 16. No prior application for the relief herein has been submitted. WHEREFORE, it is respectfully requested that this Court issue an Order granting summary judgment in favor of HPDC pursuant to CPLR Section 3212 dismissing the Plaintiffs complaint as and against Defendant HPDC, as well as dismissing all cross-claims against Defendant HPDC as they bear no liability herein and for any such further relief as this court may deem just and proper. Dated: Smithtown, New York June 3, 2019 T L. I . SMIT LLI 6 of 6