Preview
FILED: NEW YORK COUNTY CLERK 10/04/2018 06:09 PM INDEX NO. 159600/2016
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 10/04/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-------------------------------------------------
---------------X
FRANCISCA CAZARES, Index # 159600/2016
Plaintiff AFFIRMATION IN
-against-
OPPOSITION
THE CITY OF NEW YORK and OUR LADY LOURDES
ROMAN CATHOLIC CHURCH,
Defendants.
----------. -------------------------------- -----X
MICHAEL G. DEMPSEY, ESQ., an attorney duly admitted to practice in the
Courts of the State of New York, and a member of the law firm of LEAHEY & JOHNSON,
P.C., attorneys for Defendant OUR LADY LOURDES ROMAN CATHOLIC CHURCH
(hereinafter "Church"), affirm the following statements to be true under penalty of perjury
pursuant to CPLR §2106; said statements being based upon the papers contained in the file
maintained by Defcñdant's aforesaid attorneys and all the prior prececdiñgs heretofore had
herein.
1. I submit this affirmation in opposition to the motion by the City of New
York seeking an Order pursuant to CPLR § 3212 granting summary judgment dismissing the
Complaint and cross-claims.
2. This matter arises from allegations that on May 22, 2016, Plaintiff,
Franciscâ Cazares, the age 30, allegedly tripped and fellon a defective condition on the public
1 of 6
FILED: NEW YORK COUNTY CLERK 10/04/2018 06:09 PM INDEX NO. 159600/2016
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 10/04/2018
143d
sidewalk abutting Our Lady of Lourdes Roman Catholic Church, located at 468 West
Street, New York, New York.
3. On June 19, 2018, all parties appeared before Justice Verna Saunders
for a Compliance Conference. A copy of the Compliance Conference Order dated June 19,
2018 is annexed hereto as Exhibit A. Pursuant to the order, the deposition of Plaintiff was to
be held on August 7, 2018, and the depositions of the defeñdsts were to be held on August
17, 2018. Additionally, Plaintiff was to provide authorizations to obtain medical records from
Lenox Hill Radiology, and also to provide a Supplemental Bill of Particulars as to notice.
However, to date, no depositions have been held and Plaintiff has not provided the
authorization or the Supplemental Bill of Particulars.
3. It isthus clear that substantial discovery remaining outstanding and
summary judgment is premature at this time. In addition, as will be shown below, The City
has not met its burden warrañting summary judgment at this time. Accordingly, The City's
motion for summary judgment should be denied.
POINT I
SUMMARY JUDGMENT IS A "DRASTIC
REMEDY"
WHICH SHOULD BE DENIED AS PREMATURE GIVEN
THAT DISCOVERY IS INCOMPLETE AND
KNOWLEDGE OF CRUCIAL FACTS ARE WITHIN THE
KNOWLEDGE OF THE PARTIES WHO WERE NOT
DEPOSED
2 of 6
FILED: NEW YORK COUNTY CLERK 10/04/2018 06:09 PM INDEX NO. 159600/2016
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 10/04/2018
4. Contrary to the City's contentions, this Court should properly deny
summary judgment when substantial, material discovery is outstanding. The Appellate
Courts have repeatedly rejected summary judgmeñt motions as premature where substâñtial
discovery remained outstanding. _S_ee Destin v. New York City Transit Auth., 303 A.D.2d
713, 756 N.Y.S.2d 864 (2d Dep't 2003) (finding that summary judgment was premature
because discovery was stilloutstanding); Raian v. Insler, 300 A.D.2d 463, 750 N.Y.S.2d 896
(2d Dep't 2002) (same); I.antimia v. Mallick, 263 A.D.2d 467, 693 N.Y.S.2d 619, (2d Dep't
1999) (same); Brown v. County of Nassau, 226 A.D.2d 492, 641 N.Y.S.2d 554 (2d Dep't
1996) (same).
5. Indeed, where substantial discovery is outstanding, the Court of
Appeals has held that summary judgment is inappropriate and premature, particularly where,
as here, the opponent of summary judgment contends that such discovery is required before it
can sufficiently defend or prosecute the action. See Groves v. Land's End Housing Co., 80
N.Y.2d 978, 92 N.Y.S.2d 643 (1992). In this case, substantial discovery remains outstanding
because no depositions have taken place and Plaintiff has failed to provide discovery pursuant
to the June 19, 2018 Court Order. Such discovery should be conducted before a motion for
summary judgment can be decided, and the lack of discovery demonstrates that this motion is
both premature and a misguided attempt by The City to circumvent cross examination.
6. Following controlling law as set forth in Groves, summary judgment
should not be granted because no depositions have been conducted and Plaintiff has yet to
provide a Supplemental Bill of Particulars as to notice. Discovery should be completed
3 of 6
FILED: NEW YORK COUNTY CLERK 10/04/2018 06:09 PM INDEX NO. 159600/2016
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 10/04/2018
before the issue of liability is ripe for a dispositive motion.
POINT II
THE CITY HAS NOT SATISFIED ITS PRIMA FACIE
BURDEN OF SHOWING ENTITLEMENT TO
SUMMARY JUDGMENT AS A MATTER OF LAW
7. A proponent of a summary judgmcñt motion must make a prima facie
showing of entitleñient to judgment as a matter of law, tendering sufficient evidence to
eliminate any material issues of fact from the case. See Alvarez v. Prosoect Hospital, 68
N.Y.2d 325, 598 N.Y.S.2d 923 (1986). Once this prima facie showing has been made,
however, the burden shifts to the party opposing the motion for summary judgment to produce
evidentiary proof in admissible form sufficient to establish the existence of material issues of
fact which require a trial of the action. h Wineerad v. New York University Medical Ctr.,
64 N.Y.2d 851, 487 N.Y.S.2d 316 (1985); Zuckerman v. City-of New York, 49 N.Y.2d 557,
427 N.Y.S.2d 595 (1980). Such a triable issue is raised only if the plaintiff produces
admissible evidentiary proof that establishes the existence of a material question of fact. h
Braithwaite v. Equitable Life Assurance Society of the United States, 232 A.D.2d 352, 353,
648 N.Y.S.2d 628 (2d Dep't 1996). "Reliance upon mere conclusions, expressions of hope or
purpose"
unsubstantiated allegations are insufficient for that (Corcoran Group, Inc. v. Morris,
107 A.D.2d 622, 624, 484 N.Y.S.2d 7, 9 (Ist Dept. 1985) aff'd 64 N.Y.2d 1034, 427
N.Y.S.2d 595 (1985)), as is relience on evidence that is lacking in foundation and speculative.
See Samuel v. Aroneau, 270 A.D.2d 474, 475, 704 N.Y.S. 652, 653 (2d Dep't 2000). In
searching the record for an issue of fact, a court is not obligated to ferret out speeülative
4 of 6
FILED: NEW YORK COUNTY CLERK 10/04/2018 06:09 PM INDEX NO. 159600/2016
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 10/04/2018
issues to force the matter to trialin the hope that a trial may disclose something the pre-trial
proceedings did not. See Andre v. Pomeroy, 35_N.Y.2d 361, 364, 362 N.Y.S.2d 131 (1974).
8. The City has failed to meet its burden because discovery is not
complete. Imp0rtantly, all parties should be deposed in prima facie before the Court decides
the issue of The City's liability.
9. Further, the City relies on the barebones Affidavit of Victor Green, a
Coordinator"
"Training for the New York City Department of Trañsportation's Highway
Inspection and Quality Assurance Unit. In his affidavit, Mr. Green provides a lengthy
paragraph discussing his duties as a Training Coordinator. However, the subsequent
paragraph containing Mr. Green's opinion on the ownership of the manhole cover is devoid of
the same level of detail. In barely three lines, Mr. Green makes the assertion that, after
reviewing the utility cover, he has determined that the utility cover belongs to the property
owner of record. Mr. Green offers no supporting his Opiñica that the utility cover belongs to
the property owner. Without more, this opinion should not be accepted as grounds for
judgment in the City's favor.
summary
WHEREFORE, itis respectfully requested that this Court deny the City of
New York's motion for summary judgment in its entirety.
Attorney's Certification
The undersigñed hereby certifies that, to the best of the
undersigned's knowledge, information and belief formed after a
reasonable inquiry under the circumstances, the presentation of
5 of 6
FILED: NEW YORK COUNTY CLERK 10/04/2018 06:09 PM INDEX NO. 159600/2016
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 10/04/2018
the within Affirmation in Opposition or the contentions
contained herein are not frivolous as defined in 22 NYCRR
Section130-1.1(c).
Dated: New York, New York
October 4, 2018
Yours, etc.,
LEAHEY & JOHNSON, P.C.
Attorneysfor Defendant
OUR LDAY OUR LADY OF LOURDES
ROMAN CATHOLIC CHURCH
120 Wall Street, Suite 2220
, New York 10005
(21 -730 9
BY
leIICHAEL GI PSEY
VIA E-FILE
HARMON, LINDER & ROGOWSKY
Attorneysfor Plaintiff
FRANCISCA CAZARES
3 Park Avenue, Suite 2300
New York, New York 10016
ZACHARY W. CARTER, ESQ.
Corporation Counsel
Attorneyfor Defendant
THE CITY OF NEW YORK
100 Church Street
New York, New York 10007
6 of 6
Preview
FILED: NEW YORK COUNTY CLERK 10/04/2018 06:09 PM INDEX NO. 159600/2016 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 10/04/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------- ---------------X FRANCISCA CAZARES, Index # 159600/2016 Plaintiff AFFIRMATION IN -against- OPPOSITION THE CITY OF NEW YORK and OUR LADY LOURDES ROMAN CATHOLIC CHURCH, Defendants. ----------. -------------------------------- -----X MICHAEL G. DEMPSEY, ESQ., an attorney duly admitted to practice in the Courts of the State of New York, and a member of the law firm of LEAHEY & JOHNSON, P.C., attorneys for Defendant OUR LADY LOURDES ROMAN CATHOLIC CHURCH (hereinafter "Church"), affirm the following statements to be true under penalty of perjury pursuant to CPLR §2106; said statements being based upon the papers contained in the file maintained by Defcñdant's aforesaid attorneys and all the prior prececdiñgs heretofore had herein. 1. I submit this affirmation in opposition to the motion by the City of New York seeking an Order pursuant to CPLR § 3212 granting summary judgment dismissing the Complaint and cross-claims. 2. This matter arises from allegations that on May 22, 2016, Plaintiff, Franciscâ Cazares, the age 30, allegedly tripped and fellon a defective condition on the public 1 of 6 FILED: NEW YORK COUNTY CLERK 10/04/2018 06:09 PM INDEX NO. 159600/2016 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 10/04/2018 143d sidewalk abutting Our Lady of Lourdes Roman Catholic Church, located at 468 West Street, New York, New York. 3. On June 19, 2018, all parties appeared before Justice Verna Saunders for a Compliance Conference. A copy of the Compliance Conference Order dated June 19, 2018 is annexed hereto as Exhibit A. Pursuant to the order, the deposition of Plaintiff was to be held on August 7, 2018, and the depositions of the defeñdsts were to be held on August 17, 2018. Additionally, Plaintiff was to provide authorizations to obtain medical records from Lenox Hill Radiology, and also to provide a Supplemental Bill of Particulars as to notice. However, to date, no depositions have been held and Plaintiff has not provided the authorization or the Supplemental Bill of Particulars. 3. It isthus clear that substantial discovery remaining outstanding and summary judgment is premature at this time. In addition, as will be shown below, The City has not met its burden warrañting summary judgment at this time. Accordingly, The City's motion for summary judgment should be denied. POINT I SUMMARY JUDGMENT IS A "DRASTIC REMEDY" WHICH SHOULD BE DENIED AS PREMATURE GIVEN THAT DISCOVERY IS INCOMPLETE AND KNOWLEDGE OF CRUCIAL FACTS ARE WITHIN THE KNOWLEDGE OF THE PARTIES WHO WERE NOT DEPOSED 2 of 6 FILED: NEW YORK COUNTY CLERK 10/04/2018 06:09 PM INDEX NO. 159600/2016 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 10/04/2018 4. Contrary to the City's contentions, this Court should properly deny summary judgment when substantial, material discovery is outstanding. The Appellate Courts have repeatedly rejected summary judgmeñt motions as premature where substâñtial discovery remained outstanding. _S_ee Destin v. New York City Transit Auth., 303 A.D.2d 713, 756 N.Y.S.2d 864 (2d Dep't 2003) (finding that summary judgment was premature because discovery was stilloutstanding); Raian v. Insler, 300 A.D.2d 463, 750 N.Y.S.2d 896 (2d Dep't 2002) (same); I.antimia v. Mallick, 263 A.D.2d 467, 693 N.Y.S.2d 619, (2d Dep't 1999) (same); Brown v. County of Nassau, 226 A.D.2d 492, 641 N.Y.S.2d 554 (2d Dep't 1996) (same). 5. Indeed, where substantial discovery is outstanding, the Court of Appeals has held that summary judgment is inappropriate and premature, particularly where, as here, the opponent of summary judgment contends that such discovery is required before it can sufficiently defend or prosecute the action. See Groves v. Land's End Housing Co., 80 N.Y.2d 978, 92 N.Y.S.2d 643 (1992). In this case, substantial discovery remains outstanding because no depositions have taken place and Plaintiff has failed to provide discovery pursuant to the June 19, 2018 Court Order. Such discovery should be conducted before a motion for summary judgment can be decided, and the lack of discovery demonstrates that this motion is both premature and a misguided attempt by The City to circumvent cross examination. 6. Following controlling law as set forth in Groves, summary judgment should not be granted because no depositions have been conducted and Plaintiff has yet to provide a Supplemental Bill of Particulars as to notice. Discovery should be completed 3 of 6 FILED: NEW YORK COUNTY CLERK 10/04/2018 06:09 PM INDEX NO. 159600/2016 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 10/04/2018 before the issue of liability is ripe for a dispositive motion. POINT II THE CITY HAS NOT SATISFIED ITS PRIMA FACIE BURDEN OF SHOWING ENTITLEMENT TO SUMMARY JUDGMENT AS A MATTER OF LAW 7. A proponent of a summary judgmcñt motion must make a prima facie showing of entitleñient to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. See Alvarez v. Prosoect Hospital, 68 N.Y.2d 325, 598 N.Y.S.2d 923 (1986). Once this prima facie showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. h Wineerad v. New York University Medical Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 (1985); Zuckerman v. City-of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980). Such a triable issue is raised only if the plaintiff produces admissible evidentiary proof that establishes the existence of a material question of fact. h Braithwaite v. Equitable Life Assurance Society of the United States, 232 A.D.2d 352, 353, 648 N.Y.S.2d 628 (2d Dep't 1996). "Reliance upon mere conclusions, expressions of hope or purpose" unsubstantiated allegations are insufficient for that (Corcoran Group, Inc. v. Morris, 107 A.D.2d 622, 624, 484 N.Y.S.2d 7, 9 (Ist Dept. 1985) aff'd 64 N.Y.2d 1034, 427 N.Y.S.2d 595 (1985)), as is relience on evidence that is lacking in foundation and speculative. See Samuel v. Aroneau, 270 A.D.2d 474, 475, 704 N.Y.S. 652, 653 (2d Dep't 2000). In searching the record for an issue of fact, a court is not obligated to ferret out speeülative 4 of 6 FILED: NEW YORK COUNTY CLERK 10/04/2018 06:09 PM INDEX NO. 159600/2016 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 10/04/2018 issues to force the matter to trialin the hope that a trial may disclose something the pre-trial proceedings did not. See Andre v. Pomeroy, 35_N.Y.2d 361, 364, 362 N.Y.S.2d 131 (1974). 8. The City has failed to meet its burden because discovery is not complete. Imp0rtantly, all parties should be deposed in prima facie before the Court decides the issue of The City's liability. 9. Further, the City relies on the barebones Affidavit of Victor Green, a Coordinator" "Training for the New York City Department of Trañsportation's Highway Inspection and Quality Assurance Unit. In his affidavit, Mr. Green provides a lengthy paragraph discussing his duties as a Training Coordinator. However, the subsequent paragraph containing Mr. Green's opinion on the ownership of the manhole cover is devoid of the same level of detail. In barely three lines, Mr. Green makes the assertion that, after reviewing the utility cover, he has determined that the utility cover belongs to the property owner of record. Mr. Green offers no supporting his Opiñica that the utility cover belongs to the property owner. Without more, this opinion should not be accepted as grounds for judgment in the City's favor. summary WHEREFORE, itis respectfully requested that this Court deny the City of New York's motion for summary judgment in its entirety. Attorney's Certification The undersigñed hereby certifies that, to the best of the undersigned's knowledge, information and belief formed after a reasonable inquiry under the circumstances, the presentation of 5 of 6 FILED: NEW YORK COUNTY CLERK 10/04/2018 06:09 PM INDEX NO. 159600/2016 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 10/04/2018 the within Affirmation in Opposition or the contentions contained herein are not frivolous as defined in 22 NYCRR Section130-1.1(c). Dated: New York, New York October 4, 2018 Yours, etc., LEAHEY & JOHNSON, P.C. Attorneysfor Defendant OUR LDAY OUR LADY OF LOURDES ROMAN CATHOLIC CHURCH 120 Wall Street, Suite 2220 , New York 10005 (21 -730 9 BY leIICHAEL GI PSEY VIA E-FILE HARMON, LINDER & ROGOWSKY Attorneysfor Plaintiff FRANCISCA CAZARES 3 Park Avenue, Suite 2300 New York, New York 10016 ZACHARY W. CARTER, ESQ. Corporation Counsel Attorneyfor Defendant THE CITY OF NEW YORK 100 Church Street New York, New York 10007 6 of 6