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FILED: NEW YORK COUNTY CLERK 01/24/2019 05:15 PM INDEX NO. 154684/2017
NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 01/24/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-X
ELLEN GILMAN,
Index No.: 154684/2017
Plaintiff,
-against-
AFFIRMATION IN
SUPPORT
THE CITY OF NEW YORK, THE UNITED
PRESBYTERIAN CHURCH, IN THE UNITED
STATES OF AMERICA, A CORPORATION,
WEST PARK PRESBYTERIAN CHURCH, THE
SYNOD OF THE NORTHEAST OF THE
PRESBYTERIAN CHURCH, PRESBYTERY OF
NEW YORK CITY and REV. ROBERT L.
BRASHEAR,
Defendants.
X
WEST PARK PRESBYTERIAN CHURCH,
Third-Party Plaintiff,
-against-
THE SYNOD OF THE NORTHEAST OF THE
PRESBYTERIAN CHURCH and PRESBYTERY
OF NEW YORK CITY,
Third-Party Defendants.
- —————————X
DAVID ABRAMS, an attorney duly admitted to practice law before the Courts of
the State of New York hereby affirms the following with knowledge of the penalties of
perjury:
1. I am a member of the Iaw firm of STRONGIN, ROTHMAN 8 ABRAMS, LLP,
attorneys for Defendant/Third-Party Defendant PRESBYTERY OF NEW YORK CITY
(sometimes referred to herein as "PRESBYTERY NYC"). I am familiar with the facts and
circumstances surrounding this litigation from the filemaintained by this office.
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2. This affirmation is submitted in support of the instant motion for an Order
pursuant to C.P.L.R. judgment in favor of Defendant/Third-
(1) §3212, grañtiñÿ summary
Party Defendant PRESBYTERY OF NEW YORK CITY dismissing Plaintiff's Complaint
in its entirety on the merits as against Defendant/Third-Party Defendant PRESBYTERY
OF NEW YORK CITY, dismissing the Third-Party Complaint of WEST PARK
PRESBYTERIAN CHURCH in its entirety on the merits against Defendant/Third-Party
Defendant PRESBYTERY OF NEW YORK CITY, dismissing allcross-claims asserted by
any co-defendant in their entirety on the merits against Defendant/Third-Party Defendant
PRESBYTERY OF NEW YORK CITY; and (2) granting such other and further relief as
this Court deems just and proper.
3. This is an action for personal injuries allegedly sustained by plaintiff on
November 21, 2016 as a result of trip and fallaccident on the public sidewalk located at
the Northeast corner of Amsterdam Avenue and 86th Street in New York, New York.
Upon information and belief, the sidewalk where the accident took place abuts the
premises of the West Park Presbyterian Church.
PROCEDURAL HISTORY
4. Plaintiff commenced the action by filing of a Summons and Complaint on or
about May 22, 2017 which Complaint named defendants as THE CITY OF NEW YORK
and THE UNTED PRESBYTERIAN CHURCH IN THE UNITED STATES OF AMERICA,
A CORPORATION. A copy of Plaintiff's Summons and Complaint is annexed hereto as
"A."
Exhibit
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5. Issue was joined by Defendant THE CITY OF NEW YORK by filing of its
Answer on or about June 7, 2017. A copy of the Answer of Defendant THE CITY OF
"B."
NEW YORK is annexed hereto as Exhibit
6. Plaintiff filed a Supplemental Summons and Amended Complaint on or
about July 7, 2017 adding WEST PARK PRESBYTERIAN CHURCH ("WEST PARK") as
a defendant. A copy of the Supplemental Summons and Amended Complaint is annexed
"C."
hereto as Exhibit
7. Issue was joined by Defendant THE PRESBYTERIAN CHURCH (U.S.A.),
A CORPORATION f/k/a THE UNTED PRESBYTERIAN CHURCH IN THE UNITED
STATES OF AMERICA, A CORPORATION ("Presbyterian Church") by the filing of its
Answer to the Amended Complaint on or about July 10, 2017. A copy of Defendant
PRESBYTERIAN CHURCH's Answer to the Ameñded Complaint is annexed hereto as
"D."
Exhibit
8. Issues was thereafter joined by Defendant WEST PARK PRESBYTERIAN
CHURCH by the filing of itsAnswer on or about August 24, 2017. A copy of Defendant
"E."
WEST PARK'S Answer to the Amended Complaint is annexed hereto as Exhibit
Therein WEST PARK admitted ownership of the subject Church Property by its address
86th
165 West Street, New York, NY.
9. Defendant WEST PARK subsequently served an Amended Answer after
obtaining leave of court to do so. That Amended Answer denied ownership of the subject
property. A copy of Defendant WEST PARK'S Amended Answer to the Amended
"F."
Complaint is annexed hereto as Exhibit
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10. On or about December 13, 2017 Defendant/Third-Party Plaintiff WEST
PARK commenced a third-party action against Third-Party Defendants PRESBYTERY
OF NEW YORK CITY and THE SYNOD OF THE NORTHEAST OF THE
PRESBYTERIAN CHURCH. A copy of the Third-Party Summons and Complaint is
"G."
annexed hereto as Exhibit
11. Third-Party Defendant PRESBYTERY OF NEW YORK CITY, joined issue
in the third-party acticñ on February 26, 2018 by filing itsAnswer to Third-Party Complaint.
A copy of Third-Party Defendant PRESBYTERY NYC's Answer to Third-Party Complaint
"H."
is aññexed hereto as Exhibit In itsAnswer to Third-Party Complaint PRESBYTERY
NYC denied all allegatiuñs of negligence or any contractual obligations owed to
"H"
Defendant/Third-Party Plaintiff WEST PARK. (See, Exhibit annexed hereto)
12. In lieu of answering, Defendant/Third-Party Defeñdañt THE SYNOD OF
THE NORTHEAST OF THE PRESBYTERIAN CHURCH ("SYNOD") cross-moved for
dismissal of the Third-Party Complaint (and the Second Amended Complaint of Plaintiff)
pursuant to CPLR 3211 (a)(7) for failure to state a cause of action.
13. Plaintiff (without leave of court) filed a Second Supplemental Summons and
Second Amended Complaint on or about December 19, 2017 adding PRESBYTERY OF
NEW YORK CITY and THE SYNOD OF THE NORTHEAST OF THE PRESBYTERIAN
CHURCH as direct Defendants. A copy of Plaintiff's Second Supplemental Summons
"I."
and Second Amended Complaint is annexed hereto as Exhibit
14. Defendant/Third-Party Defendant PRESBYTERY NYC filed its Answer to
Second Amended Complaint on March 22, 2018. A copy of Defendant/Third-Party
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Defendant PRESBYTERY NYC's Answer to Plaintiffs Second Amended Complc3irit is
"J."
annexed hereto as Exhibit
15. On or about July 12, 2018 (without leave of court), Plaintiff filed a Third
Supplemental Summons and Third Amended Complaint adding REV. ROBERT L.
BRASHEAR as a defendant. A copy of Plaintiff's Third Supplemental Summons and
"K."
Third Amended Complaint is annexed hereto as Exhibit
16. On January 23, 2019 Defendant PRESBYTERY NYC filed its Answer to
Third Verified Amended Complaint. A copy of Defendant PRESBYTERY NYC's Answer
"L."
to Third Verified Amended Complaint is annexed hereto as Exhibit
17. Defendants WEST PARK and REV. ROBERT L. BRASHEAR filed their
Answer to Plaintiffs Third Verified Amended Complaint on or about September 28, 2018.
A copy of Defendants WEST PARK and REV. ROBERT L. BRASHEAR Answer to
"M."
Plaintiff's Third Verified Amended Complaint is annexed hereto as Exhibit
18. By Order dated January 8, 2019 the Court (Tisch, J.) granted summary
judgment to Defendant THE PRESBYTERIAN CHURCH (U.S.A.), A CORPORATION
f/k/a THE UNTED PRESBYTERIAN CHURCH IN THE UNITED STATES OF AMERICA,
A CORPORATION on the basis that it did not own, occupy or control the premises
abutting the sidewalk where the accident occurred, amongst other reasons. Accordingly,
Plaintiffs Complaint against that Defendant was dismissed as were all cross-claims. In
that same Order, the court denied, without prejudice to renew, the cross-motion for
dismissal by Defendant/Third-Party Defendant SYNOD on the basis that the motion for
dismissal was not properly brought as a cross-motion to the motion of Defendant
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PRESBYTERIAN CHURCH. A copy of the Order dated January 8, 2019 is annexed
"N."
hereto as Exhibit
19. By Order dated January 8, 2019, the Court (Tisch, J.) granted summary
judgment to Defendant The City of New York on the basis that the City established itdid
not own the real property abutting the sidewalk where the accident occurred and was
therefore not liable pursuant to Administrative Code of the City of NY §7-210 (c), arñcñgst
other reasons. A copy of the Order dated January 8, 2019 granting summary judgment
"O."
to Defendant The City of New York is annexed hereto as Exhibit
20. Defendant PRESBYTERY NYC served a Demand for a Bill of Particulars
directed to plaintiff on March 15, 2018. A copy of the Demand is annexed hereto as
"P."
Exhibit
21. On or about April 27, 2018 Plaintiff Served a Verified Bill of Particulars
responsive to the Demand of Defeñdañt PRESBYTERY NYC. A copy of Plaintiffs
"Q."
Verified Bill of Particulars dated April 27, 2018 is annexed hereto as Exhibit
22. Defeñdant/Third-Party Defendant PRESBYTERY NYC served a Demand
for Third-Party Bill of Particulars to Third-Party Plaintiff WEST PARK on March 15, 2018.
"R."
A copy of the Demand for Third-Party Bill of Particulars is annexed hereto as Exhibit
23. Third-Party Plaintiff WEST PARK has not responded to this Demand for a
Third-Party Billof Particulars to date.
PLAINTIFF'S CLAIMS
24. Plaintiff claims that the accident giving rise to her injuries occurred on
"Q,"
November 21, 2016 at approximately 1:00 pm (See Exhibit Plaintiffs Bill of
Particulars ¶ 2). Plaintiff identifies the location of her accident as "the sidewalk on the
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86th
northeast corner of Amsterdam and Street, New York, NY (Id. ¶3). She describes
the accident as follows "Plaintiff was walking when she was caused to trip and fall due to
the dangerous and defective conditions of a defective sidewalk on the northeast corner
86th NY."
of Amsterdam and Street, New York, (Id., ¶ 4).
25. The claims of alleged negligence against movant PRESBYTERY NYC are
"Q,"
set forth in Plaintiff's Bill of Particulars, Exhibit ¶ 5, which alleges as follows:
The Defendant, defendant's agents, servants, and/or employees were
negligent in that they allowed the sidewalk to be kept in a dangerous
condition; in that it failed to give any notice or warning to the plaiñtiff; in
failing to provide and maintain a flat and uninterrupted walking surface thus
subjecting plaintiff to an unreasonable risk due to the dangerous, hazardous
and trap-like condition prevailing thereat; in that they maintained the
sidewalk in a careless and reckless manner; in failing to take proper
cognizance of those traversing the subject area; in failing to adequately
warn of the hazard; in failing to take reasonable measures so as to remove
and/or remedy said hazardous condition; in causing, permitting and
allowing a nuisañce to become and remain in said sidewalk; in causing,
allowing and permitting said sidewalk to be/become broken, cracked,
raised; hole-marred; uneven; trap-like, unsafe, unfit, defective, hazardous,
and/or dañgerous, thereby constituting a nuisance, danger menace, and/or
hazard; in failing to wam the plaintiff, and others so situated, of the
dangerous and otherwise hazardous conditions which existed thereat; in
failing to protect the safety or othenvise warn the plaintiff with respect to
said dangerous and otherwise hazardous condition; and in otherwise being
negligent, reckless and careless in the ownership, control, supervision and
maintenance of said sidewalk.
26. Plaintiff also claims actual and constructive notice and also asserts that
condition."
Defendant "caused and created the (Id., ¶¶ 6-8). No further specifics of these
allegations are provided.
27. Movant PRESBYTERY NYC has denied all allegations of negligence. (See
"L,"
Exhibit Answer to Third Verified Amended Complaint)
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TIfI_RD-PARTY PLAINTIFF'S CLAIMS
28. Movant PRESBYTERY NYC was brought into this action as a third-
initially
party Defendant by Defendant/Third-Party Plaintiff WEST PARK. Defendant/Third-Party
Plaintiff WEST PARK never responded to the Demand for a Third-Party Bill of Particulars
served by PRESBYTERY NYC on March 15, 2018 (See Demand, Exhibit "R."). In its
Third-Party Complaint (and subsequently in itscross-claims), WEST PARK alleges that
PRESBYTERY NYC owes contribution and indemnification to WEST PARK for itsalleged
"elevator" "G,"
failure to maintain an (See, Third-Party Complaint, Exhibit ¶27). WEST
PARK further grounds its Third-Party Complaint upon an alleged contract providing for
indemnificatioñ and an alleged contractual requirement to secure liability insurance in
WEST PARK'S favor (ld., ¶¶ 30-38) Howevar, no such contract has been identified, no
such ccñtract is attached to the Third-Party Complaint, and the specifics for the alleged
contract requested in Movant's Demand for Third-Party Bill of Particulars have never been
provided by WEST PARK.
29. Movant PRESBYTERY NYC has denied all allegations asserted against it
"H,"
in the Third-Party Complaint. (See Exhibit Answer to Third-Party Complaint)
THE PARTIES
30. Plaintiff Ellen Gilman is a now approximately 80-year-old resident of New
96th
York, residing at 150 W. Street, New York, NY 10025 (Id., ¶¶ 1 and 19)
31. Defendant WEST PARK is a Congregation, which, upon information and
belief, owns, occupies and uses the Church Premises known as WEST PARK
PREBYTERIAN CHURCH, which is located at the northeast corner of Amsterdam
86th
Avenue and Street, New York, NY.
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32. The Presbyterian Church has four levels of councils: congregations,
presbyteries (which are regional bodies of congregations), synods (which are regional
bodies of presbyteries), and the General Assembly, which is the national body. (See
attached Affidavit of Rev. Foltz-Morrison, ¶ 4)
33. Defendant WEST PARK is one of the Congregations within the regional
council PRESBYTERY OF NEW YORK CITY. (See attached Affidavit of Rev. Foltz-
Morrison, ¶ 5)
34. PRESBYTERY OF NEW YORK CITY is a regional council of Congregations
within the PRESBYTERIAN CHURCH. (See attached Affidavit of Rev. Foltz-Morrison, ¶
6)
35. WEST PARK is a separate and distinct entity from PRESBYTERY NYC.
WEST PARK and PRESBYTERY NYC have separate and distinct governing bodies and
maintain separate and distinct books and records. PRESBYTERY NYC does not direct,
control or supervise the business affairs, facilities management or mainteñañce, or day
to day operations of WEST PARK. (See attached Affidavit of Rev. Foltz-Morrison, ¶ 18)
36. Upon information and belief, Co-Defendant/Third-Party Defendant SYNOD
is a council of presbyteries of THE PRESBYTERIAN CHURCH.
37. As set forth above, defendants City of New York and THE PRESBYTERIAN
CHURCH have been previously granted summary judgment. (See Orders dated January
"N"
8, 2019, Exhibits and "O")
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ARGUMENT
POINT I
PRESBYTERY OF NEW YORK CITY IS AN IMPROPER PARTY
TO THIS ACTION AND IS ENTITLED TO SUMMARY
JUDGMENT: IT OWED NO DUTY OF CARE WITH RESPECT TO
THE ALLEGED SIDEWALK CONDITION SINCE IT DID NOT
OWN. POSSESS. CONTROL. OPERATE OR MAINTAIN THE
ABUTTING CHURCH PREMISES OR THE SIDEWALK, AND DID
NOT CAUSE OR CREATE THE ALLEGED DANGEROUS
SIDEWALK CONDITION
38. In this case, plaintiff cannot establish that Defendant PRESBYTERY NYC
owed her a duty of care with respect to the alleged dangerous condition of the sidewalk
865
on the northeast comer of Amsterdam Avenue and Street, New York, NY where the
accident is claimed to have occurred. As a matter of law, before liability can attach,
plaintiff must establish the existence of a duty, the breach of which may be considered
the proximate cause of plaintiff's injuries. Becker v. Schwartz, 46 N.Y.2d 401, 413,
N.Y.S.2d 895; Pulka v. Edelman, 40 N.Y.S.2d 393. Geñerally, liability for an unsafe
condition on premises is predicated upon occupation, ownership and control. See, Gilbert
Properties. Inc. v. City of New York, 33 A.D.2d 174, 305 N.Y.S.2d 650, aff'd. 77 N.Y.2d
594, 313 N.Y.S.2d 408. 'Where none of these factors are present, a party cannot be held
ccñdition"
liable for injuries caused by the a!!egedly defective ( Gover v Mastic Beach
Prop. Owners Assn., 57 AD3d at 730; see Dugue v 1818 Newkirk Mgt. Corp., 301 AD2d
[1999])."
561, 562 [2003] ; Aversano v City of New York, 265 AD2d 437 Suero-Sosa v.
2013)."
Cardona 112 AD3d 706, 707 (2d Dep't
39. Moreover, no liability for a sidewalk accident can attach to a party underthe
Administrative Code of the City of New York §7-210 absent ownership, possession, or
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control of the property abutting such sidewalk. See, Rodriguez v. City of New York, 70
(1st
AD3d 450 Dep't 2010). Here, no statutory duty to maintain or repair the subject public
sidewalk can be imposed, or be the basis for liability, upon Movant PRESBYTERY OF
NEW YORK CITY.
40. It is undisputed that the claimed location of Plaintiffs alleged accident, the
8681
public sidewalk on the northeast comer of Amsterdam Avenue and Street, New York,
NY abuts the church premises of the WEST PARK PRESBYTERIAN CHURCH. (See
attached Affidavit of Rev. Doctor Robert Foltz-Morrison, ¶ 2)
41. In sum, because itdoes not own, occupy, control or maintain the property
abutting the public sidewalk where the accident occurred, did not have any responsibility
to maintain the sidewalk, and did not do anything to create any alleged dangerous
condition, no liabilitycan be imposed against Defendant PRESBYTERY OF NEW YORK
CITY for plaintiffs accident. As fully deta!!ed in the attached Affidavit of Rev. Doctor
Robert Foltz-Morrison, Defendant/Third-Party Defendant PRESBYTERY NYC does not,
and did not on November 21, 2016, own, lease, occupy, possess, or control, the premises
of the WEST PARK PREBYTERIAN CHURCH located at the northeast corner of
Amsterdam Avenue and 86th Street, New York, NY or the sidewalks abutting those
premises. (See attached Affidavit of Rev. Doctor Robert Foltz-Morrison, ¶ 9)
PRESBYTERY OF NEW YORK CITY does not, and did not on November 21, 2016,
operate, supervise, or manage, any aspect of the premises of the WEST PARK
PREBYTERIAN CHURCH located at the northeast corner of Amsterdam Avenue and
86th Street, New York, NY or the sidewalks abutting those premises. (Id., ¶10)
PRESBYTERY OF NEW YORK CITY does not, and did not on November 21, 2016, or
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any time prior thereto, engage in or have any responsibility for maintaining, repairing, or
inspecting the premises of the WEST PARK PREBYTERIAN CHURCH located at the
northeast comer of Amsterdam Avenue and 86th Street, New York, NY or the sidewalks
abutting those premises. (Id.,¶11) PRESBYTERY OF NEW YORK CITY does not, and
did not on November 21, 2016, or at any time prior thereto, employ, hire, supervise, direct,
or control any of the maintenance staff or other persons at the WEST PARK
PRESBYTERIAN CHURCH who have, or may have, respoñsibility to maintain, repair, or
inspect the sidewalks abutting the Church premises located at the northeast comer of
Amsterdam Avenue and 86th Street, New York, NY. (Id., 115)
42. By virtue of the absence of ownership, occupation, possession or control of
the premises abutting the involved accident !ocation, there is also no factual basis upon
use"
which any "special of the sidewalk could be attributed to PRESBYTERY OF NEW
YORK CITY. Accordingly, there is no legal or factual basis upon which PRESBYTERY
OF NEW YORK CITY could be held liable for an accident on the public sidewalk located
865
at the northeast corner of Amsterdam Avenue and Street in New York, NY.
43. Moreover, PRESBYTERY OF NEW YORK CITY did not cause or create
any alleged dangerous condition which may have existed on the public sidewalk where
Plaintiff claims her accident occurred. PRESBYTERY OF NEW YORK CITY does not,
and did not on November 21, 2016, or any time prior therete, ccñstruct, maintain, repair
or inspect any part of the sidewalks abutting the premises of the WEST PARK
PREBYTERIAN CHURCH located at the northeast corner of Amsterdam Avenue and
86th Street, New York, NY. (ld., ¶12) PRESBYTERY OF NEW YORK CITY does not,
and did not on November 21, 2016, or any time prior thereto, exercise any control over,
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or have any involvement in, the construction, maintenance, repair, or inspection of any
part of the sidewalks abutting the premises of the WEST PARK PREBYTERIAN
CHURCH located at the northeast corner of Amsterdam Avenue and 86th Street, New
York, NY. (Id.,¶13) PRESBYTERY OF NEW YORK CITY did not on November 21, 2016,
or any time prior thereto, employ or hire any person or contractor to construct, rñaiñtain,
repair or inspect any part of the sidewalks abutting the premises of the WEST PARK
PREBYTERIAN CHURCH located at the northeast corner of Amsterdam Avenue and
86th Street, New York, NY. (Id., ¶14) Accordingly, there is no condition on the involved
created"
sidewalk that could have been "caused or by Defendant PREBYTERY OF NEW
YORK CITY and thus no liability can be attached to Movant for Plaintiff's alleged injuries.
44. PRESBYTERY OF NEW YORK CITY is a distinct and separate entity from
WEST PARK. PRESBYTERY NYC and WEST PARK have separate and distinct
governing bodies and maintain separate and distinct books and records. PRESBYTERY
NYC does not direct, control or supervise the business affairs, facilities management or
maintenance, or day to day operations of WEST PARK. (Id., ¶18)
45. Plaintiff WEST PARK's claims and cross-
Defendant/Third-Party third-party
claims against PRESBYTERY NYC for contractual indemnification or a contractua!
requirement of insurance procurement have no basis in fact as no such contract exists or
ever existed. Accordingly, all third-party cisims and cross-claims should be dismissed as
against PRESBYTERY NYC on the merits. As set forth in the Affidavit of Rev. Doctor
Robert Foltz-Morrison, at no time has PRESBYTERY NYC entered into an agreement or
contract with WEST PARK to indemnify, hold harmless or defend WEST PARK for loss
or damages for liability under such agreement or within the scope of such agreement. No
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such agreement exists or has ever existed. No such agreement or contract exists by
which PRESBYTERY NYC agreed to indemnity, hold harmless, or defend WEST PARK
with respect to Plaintiff's accident of November 21, 2016 on the sidewalk abutting the
Church premises of WEST PARK or any injuries arising therefrom. (Id., $19) At no time
has PRESBYTERY NYC entered into an agreement or contract with WEST PARK to
secure liability insurance in favor of, or for the benefit of WEST PARK for loss or damages
for liability under such agreement or within the scope of such agreement. No such
agreement exists or has ever existed. No such agreement or contract exists by which
PRESBYTERY NYC agreed to secure liability insurance in favor of, or for the benefit of
WEST PARK with respect to Plaintiffs accident of November 21, 2016 on the sidewalk
abutting the Church premises of WEST PARK or any injuries arising therefrom. (ld., ¶20)
46. Movant Defendant PRESBYTERY NYC has satisfied itsburden to make a
prima facie showing that there are no material issues of fact requiring a trial of this matter
and itis entitled to summary judgment as a matter of law dismissing Plaintiff's Complaint
and all cross-claims and third-party claims in their entirety as against PRESBYTERY
NYC. Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324-25 (1986).
WHEREFORE, it is respectfully requested that the Court issue an Order: (1)
pursuant to C.P.LR. judgment in favor of Defendant/Third-
§3212, granting summary
Plaintiffs'
Party Defendant PRESBYTERY OF NEW YORK CITY dismissing Complaint
in its entirety on the merits as against Defendant/Third-Party Defendant PRESBYTERY
OF NEW YORK CITY, dismissing the Third-Party Complaint of WEST PARK
PRESBYTERIAN CHURCH in its entirety on the merits against Defendant/Third-Party
Defendant PRESBYTERY OF NEW YORK CITY, and dismissing all cross-claims
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Preview
FILED: NEW YORK COUNTY CLERK 01/24/2019 05:15 PM INDEX NO. 154684/2017 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 01/24/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -X ELLEN GILMAN, Index No.: 154684/2017 Plaintiff, -against- AFFIRMATION IN SUPPORT THE CITY OF NEW YORK, THE UNITED PRESBYTERIAN CHURCH, IN THE UNITED STATES OF AMERICA, A CORPORATION, WEST PARK PRESBYTERIAN CHURCH, THE SYNOD OF THE NORTHEAST OF THE PRESBYTERIAN CHURCH, PRESBYTERY OF NEW YORK CITY and REV. ROBERT L. BRASHEAR, Defendants. X WEST PARK PRESBYTERIAN CHURCH, Third-Party Plaintiff, -against- THE SYNOD OF THE NORTHEAST OF THE PRESBYTERIAN CHURCH and PRESBYTERY OF NEW YORK CITY, Third-Party Defendants. - —————————X DAVID ABRAMS, an attorney duly admitted to practice law before the Courts of the State of New York hereby affirms the following with knowledge of the penalties of perjury: 1. I am a member of the Iaw firm of STRONGIN, ROTHMAN 8 ABRAMS, LLP, attorneys for Defendant/Third-Party Defendant PRESBYTERY OF NEW YORK CITY (sometimes referred to herein as "PRESBYTERY NYC"). I am familiar with the facts and circumstances surrounding this litigation from the filemaintained by this office. 1 of 15 FILED: NEW YORK COUNTY CLERK 01/24/2019 05:15 PM INDEX NO. 154684/2017 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 01/24/2019 2. This affirmation is submitted in support of the instant motion for an Order pursuant to C.P.L.R. judgment in favor of Defendant/Third- (1) §3212, grañtiñÿ summary Party Defendant PRESBYTERY OF NEW YORK CITY dismissing Plaintiff's Complaint in its entirety on the merits as against Defendant/Third-Party Defendant PRESBYTERY OF NEW YORK CITY, dismissing the Third-Party Complaint of WEST PARK PRESBYTERIAN CHURCH in its entirety on the merits against Defendant/Third-Party Defendant PRESBYTERY OF NEW YORK CITY, dismissing allcross-claims asserted by any co-defendant in their entirety on the merits against Defendant/Third-Party Defendant PRESBYTERY OF NEW YORK CITY; and (2) granting such other and further relief as this Court deems just and proper. 3. This is an action for personal injuries allegedly sustained by plaintiff on November 21, 2016 as a result of trip and fallaccident on the public sidewalk located at the Northeast corner of Amsterdam Avenue and 86th Street in New York, New York. Upon information and belief, the sidewalk where the accident took place abuts the premises of the West Park Presbyterian Church. PROCEDURAL HISTORY 4. Plaintiff commenced the action by filing of a Summons and Complaint on or about May 22, 2017 which Complaint named defendants as THE CITY OF NEW YORK and THE UNTED PRESBYTERIAN CHURCH IN THE UNITED STATES OF AMERICA, A CORPORATION. A copy of Plaintiff's Summons and Complaint is annexed hereto as "A." Exhibit 2 of 15 FILED: NEW YORK COUNTY CLERK 01/24/2019 05:15 PM INDEX NO. 154684/2017 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 01/24/2019 5. Issue was joined by Defendant THE CITY OF NEW YORK by filing of its Answer on or about June 7, 2017. A copy of the Answer of Defendant THE CITY OF "B." NEW YORK is annexed hereto as Exhibit 6. Plaintiff filed a Supplemental Summons and Amended Complaint on or about July 7, 2017 adding WEST PARK PRESBYTERIAN CHURCH ("WEST PARK") as a defendant. A copy of the Supplemental Summons and Amended Complaint is annexed "C." hereto as Exhibit 7. Issue was joined by Defendant THE PRESBYTERIAN CHURCH (U.S.A.), A CORPORATION f/k/a THE UNTED PRESBYTERIAN CHURCH IN THE UNITED STATES OF AMERICA, A CORPORATION ("Presbyterian Church") by the filing of its Answer to the Amended Complaint on or about July 10, 2017. A copy of Defendant PRESBYTERIAN CHURCH's Answer to the Ameñded Complaint is annexed hereto as "D." Exhibit 8. Issues was thereafter joined by Defendant WEST PARK PRESBYTERIAN CHURCH by the filing of itsAnswer on or about August 24, 2017. A copy of Defendant "E." WEST PARK'S Answer to the Amended Complaint is annexed hereto as Exhibit Therein WEST PARK admitted ownership of the subject Church Property by its address 86th 165 West Street, New York, NY. 9. Defendant WEST PARK subsequently served an Amended Answer after obtaining leave of court to do so. That Amended Answer denied ownership of the subject property. A copy of Defendant WEST PARK'S Amended Answer to the Amended "F." Complaint is annexed hereto as Exhibit 3 of 15 FILED: NEW YORK COUNTY CLERK 01/24/2019 05:15 PM INDEX NO. 154684/2017 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 01/24/2019 10. On or about December 13, 2017 Defendant/Third-Party Plaintiff WEST PARK commenced a third-party action against Third-Party Defendants PRESBYTERY OF NEW YORK CITY and THE SYNOD OF THE NORTHEAST OF THE PRESBYTERIAN CHURCH. A copy of the Third-Party Summons and Complaint is "G." annexed hereto as Exhibit 11. Third-Party Defendant PRESBYTERY OF NEW YORK CITY, joined issue in the third-party acticñ on February 26, 2018 by filing itsAnswer to Third-Party Complaint. A copy of Third-Party Defendant PRESBYTERY NYC's Answer to Third-Party Complaint "H." is aññexed hereto as Exhibit In itsAnswer to Third-Party Complaint PRESBYTERY NYC denied all allegatiuñs of negligence or any contractual obligations owed to "H" Defendant/Third-Party Plaintiff WEST PARK. (See, Exhibit annexed hereto) 12. In lieu of answering, Defendant/Third-Party Defeñdañt THE SYNOD OF THE NORTHEAST OF THE PRESBYTERIAN CHURCH ("SYNOD") cross-moved for dismissal of the Third-Party Complaint (and the Second Amended Complaint of Plaintiff) pursuant to CPLR 3211 (a)(7) for failure to state a cause of action. 13. Plaintiff (without leave of court) filed a Second Supplemental Summons and Second Amended Complaint on or about December 19, 2017 adding PRESBYTERY OF NEW YORK CITY and THE SYNOD OF THE NORTHEAST OF THE PRESBYTERIAN CHURCH as direct Defendants. A copy of Plaintiff's Second Supplemental Summons "I." and Second Amended Complaint is annexed hereto as Exhibit 14. Defendant/Third-Party Defendant PRESBYTERY NYC filed its Answer to Second Amended Complaint on March 22, 2018. A copy of Defendant/Third-Party 4 of 15 FILED: NEW YORK COUNTY CLERK 01/24/2019 05:15 PM INDEX NO. 154684/2017 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 01/24/2019 Defendant PRESBYTERY NYC's Answer to Plaintiffs Second Amended Complc3irit is "J." annexed hereto as Exhibit 15. On or about July 12, 2018 (without leave of court), Plaintiff filed a Third Supplemental Summons and Third Amended Complaint adding REV. ROBERT L. BRASHEAR as a defendant. A copy of Plaintiff's Third Supplemental Summons and "K." Third Amended Complaint is annexed hereto as Exhibit 16. On January 23, 2019 Defendant PRESBYTERY NYC filed its Answer to Third Verified Amended Complaint. A copy of Defendant PRESBYTERY NYC's Answer "L." to Third Verified Amended Complaint is annexed hereto as Exhibit 17. Defendants WEST PARK and REV. ROBERT L. BRASHEAR filed their Answer to Plaintiffs Third Verified Amended Complaint on or about September 28, 2018. A copy of Defendants WEST PARK and REV. ROBERT L. BRASHEAR Answer to "M." Plaintiff's Third Verified Amended Complaint is annexed hereto as Exhibit 18. By Order dated January 8, 2019 the Court (Tisch, J.) granted summary judgment to Defendant THE PRESBYTERIAN CHURCH (U.S.A.), A CORPORATION f/k/a THE UNTED PRESBYTERIAN CHURCH IN THE UNITED STATES OF AMERICA, A CORPORATION on the basis that it did not own, occupy or control the premises abutting the sidewalk where the accident occurred, amongst other reasons. Accordingly, Plaintiffs Complaint against that Defendant was dismissed as were all cross-claims. In that same Order, the court denied, without prejudice to renew, the cross-motion for dismissal by Defendant/Third-Party Defendant SYNOD on the basis that the motion for dismissal was not properly brought as a cross-motion to the motion of Defendant 5 of 15 FILED: NEW YORK COUNTY CLERK 01/24/2019 05:15 PM INDEX NO. 154684/2017 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 01/24/2019 PRESBYTERIAN CHURCH. A copy of the Order dated January 8, 2019 is annexed "N." hereto as Exhibit 19. By Order dated January 8, 2019, the Court (Tisch, J.) granted summary judgment to Defendant The City of New York on the basis that the City established itdid not own the real property abutting the sidewalk where the accident occurred and was therefore not liable pursuant to Administrative Code of the City of NY §7-210 (c), arñcñgst other reasons. A copy of the Order dated January 8, 2019 granting summary judgment "O." to Defendant The City of New York is annexed hereto as Exhibit 20. Defendant PRESBYTERY NYC served a Demand for a Bill of Particulars directed to plaintiff on March 15, 2018. A copy of the Demand is annexed hereto as "P." Exhibit 21. On or about April 27, 2018 Plaintiff Served a Verified Bill of Particulars responsive to the Demand of Defeñdañt PRESBYTERY NYC. A copy of Plaintiffs "Q." Verified Bill of Particulars dated April 27, 2018 is annexed hereto as Exhibit 22. Defeñdant/Third-Party Defendant PRESBYTERY NYC served a Demand for Third-Party Bill of Particulars to Third-Party Plaintiff WEST PARK on March 15, 2018. "R." A copy of the Demand for Third-Party Bill of Particulars is annexed hereto as Exhibit 23. Third-Party Plaintiff WEST PARK has not responded to this Demand for a Third-Party Billof Particulars to date. PLAINTIFF'S CLAIMS 24. Plaintiff claims that the accident giving rise to her injuries occurred on "Q," November 21, 2016 at approximately 1:00 pm (See Exhibit Plaintiffs Bill of Particulars ¶ 2). Plaintiff identifies the location of her accident as "the sidewalk on the 6 of 15 FILED: NEW YORK COUNTY CLERK 01/24/2019 05:15 PM INDEX NO. 154684/2017 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 01/24/2019 86th northeast corner of Amsterdam and Street, New York, NY (Id. ¶3). She describes the accident as follows "Plaintiff was walking when she was caused to trip and fall due to the dangerous and defective conditions of a defective sidewalk on the northeast corner 86th NY." of Amsterdam and Street, New York, (Id., ¶ 4). 25. The claims of alleged negligence against movant PRESBYTERY NYC are "Q," set forth in Plaintiff's Bill of Particulars, Exhibit ¶ 5, which alleges as follows: The Defendant, defendant's agents, servants, and/or employees were negligent in that they allowed the sidewalk to be kept in a dangerous condition; in that it failed to give any notice or warning to the plaiñtiff; in failing to provide and maintain a flat and uninterrupted walking surface thus subjecting plaintiff to an unreasonable risk due to the dangerous, hazardous and trap-like condition prevailing thereat; in that they maintained the sidewalk in a careless and reckless manner; in failing to take proper cognizance of those traversing the subject area; in failing to adequately warn of the hazard; in failing to take reasonable measures so as to remove and/or remedy said hazardous condition; in causing, permitting and allowing a nuisañce to become and remain in said sidewalk; in causing, allowing and permitting said sidewalk to be/become broken, cracked, raised; hole-marred; uneven; trap-like, unsafe, unfit, defective, hazardous, and/or dañgerous, thereby constituting a nuisance, danger menace, and/or hazard; in failing to wam the plaintiff, and others so situated, of the dangerous and otherwise hazardous conditions which existed thereat; in failing to protect the safety or othenvise warn the plaintiff with respect to said dangerous and otherwise hazardous condition; and in otherwise being negligent, reckless and careless in the ownership, control, supervision and maintenance of said sidewalk. 26. Plaintiff also claims actual and constructive notice and also asserts that condition." Defendant "caused and created the (Id., ¶¶ 6-8). No further specifics of these allegations are provided. 27. Movant PRESBYTERY NYC has denied all allegations of negligence. (See "L," Exhibit Answer to Third Verified Amended Complaint) 7 of 15 FILED: NEW YORK COUNTY CLERK 01/24/2019 05:15 PM INDEX NO. 154684/2017 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 01/24/2019 TIfI_RD-PARTY PLAINTIFF'S CLAIMS 28. Movant PRESBYTERY NYC was brought into this action as a third- initially party Defendant by Defendant/Third-Party Plaintiff WEST PARK. Defendant/Third-Party Plaintiff WEST PARK never responded to the Demand for a Third-Party Bill of Particulars served by PRESBYTERY NYC on March 15, 2018 (See Demand, Exhibit "R."). In its Third-Party Complaint (and subsequently in itscross-claims), WEST PARK alleges that PRESBYTERY NYC owes contribution and indemnification to WEST PARK for itsalleged "elevator" "G," failure to maintain an (See, Third-Party Complaint, Exhibit ¶27). WEST PARK further grounds its Third-Party Complaint upon an alleged contract providing for indemnificatioñ and an alleged contractual requirement to secure liability insurance in WEST PARK'S favor (ld., ¶¶ 30-38) Howevar, no such contract has been identified, no such ccñtract is attached to the Third-Party Complaint, and the specifics for the alleged contract requested in Movant's Demand for Third-Party Bill of Particulars have never been provided by WEST PARK. 29. Movant PRESBYTERY NYC has denied all allegations asserted against it "H," in the Third-Party Complaint. (See Exhibit Answer to Third-Party Complaint) THE PARTIES 30. Plaintiff Ellen Gilman is a now approximately 80-year-old resident of New 96th York, residing at 150 W. Street, New York, NY 10025 (Id., ¶¶ 1 and 19) 31. Defendant WEST PARK is a Congregation, which, upon information and belief, owns, occupies and uses the Church Premises known as WEST PARK PREBYTERIAN CHURCH, which is located at the northeast corner of Amsterdam 86th Avenue and Street, New York, NY. 8 of 15 FILED: NEW YORK COUNTY CLERK 01/24/2019 05:15 PM INDEX NO. 154684/2017 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 01/24/2019 32. The Presbyterian Church has four levels of councils: congregations, presbyteries (which are regional bodies of congregations), synods (which are regional bodies of presbyteries), and the General Assembly, which is the national body. (See attached Affidavit of Rev. Foltz-Morrison, ¶ 4) 33. Defendant WEST PARK is one of the Congregations within the regional council PRESBYTERY OF NEW YORK CITY. (See attached Affidavit of Rev. Foltz- Morrison, ¶ 5) 34. PRESBYTERY OF NEW YORK CITY is a regional council of Congregations within the PRESBYTERIAN CHURCH. (See attached Affidavit of Rev. Foltz-Morrison, ¶ 6) 35. WEST PARK is a separate and distinct entity from PRESBYTERY NYC. WEST PARK and PRESBYTERY NYC have separate and distinct governing bodies and maintain separate and distinct books and records. PRESBYTERY NYC does not direct, control or supervise the business affairs, facilities management or mainteñañce, or day to day operations of WEST PARK. (See attached Affidavit of Rev. Foltz-Morrison, ¶ 18) 36. Upon information and belief, Co-Defendant/Third-Party Defendant SYNOD is a council of presbyteries of THE PRESBYTERIAN CHURCH. 37. As set forth above, defendants City of New York and THE PRESBYTERIAN CHURCH have been previously granted summary judgment. (See Orders dated January "N" 8, 2019, Exhibits and "O") 9 of 15 FILED: NEW YORK COUNTY CLERK 01/24/2019 05:15 PM INDEX NO. 154684/2017 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 01/24/2019 ARGUMENT POINT I PRESBYTERY OF NEW YORK CITY IS AN IMPROPER PARTY TO THIS ACTION AND IS ENTITLED TO SUMMARY JUDGMENT: IT OWED NO DUTY OF CARE WITH RESPECT TO THE ALLEGED SIDEWALK CONDITION SINCE IT DID NOT OWN. POSSESS. CONTROL. OPERATE OR MAINTAIN THE ABUTTING CHURCH PREMISES OR THE SIDEWALK, AND DID NOT CAUSE OR CREATE THE ALLEGED DANGEROUS SIDEWALK CONDITION 38. In this case, plaintiff cannot establish that Defendant PRESBYTERY NYC owed her a duty of care with respect to the alleged dangerous condition of the sidewalk 865 on the northeast comer of Amsterdam Avenue and Street, New York, NY where the accident is claimed to have occurred. As a matter of law, before liability can attach, plaintiff must establish the existence of a duty, the breach of which may be considered the proximate cause of plaintiff's injuries. Becker v. Schwartz, 46 N.Y.2d 401, 413, N.Y.S.2d 895; Pulka v. Edelman, 40 N.Y.S.2d 393. Geñerally, liability for an unsafe condition on premises is predicated upon occupation, ownership and control. See, Gilbert Properties. Inc. v. City of New York, 33 A.D.2d 174, 305 N.Y.S.2d 650, aff'd. 77 N.Y.2d 594, 313 N.Y.S.2d 408. 'Where none of these factors are present, a party cannot be held ccñdition" liable for injuries caused by the a!!egedly defective ( Gover v Mastic Beach Prop. Owners Assn., 57 AD3d at 730; see Dugue v 1818 Newkirk Mgt. Corp., 301 AD2d [1999])." 561, 562 [2003] ; Aversano v City of New York, 265 AD2d 437 Suero-Sosa v. 2013)." Cardona 112 AD3d 706, 707 (2d Dep't 39. Moreover, no liability for a sidewalk accident can attach to a party underthe Administrative Code of the City of New York §7-210 absent ownership, possession, or 10 of 15 FILED: NEW YORK COUNTY CLERK 01/24/2019 05:15 PM INDEX NO. 154684/2017 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 01/24/2019 control of the property abutting such sidewalk. See, Rodriguez v. City of New York, 70 (1st AD3d 450 Dep't 2010). Here, no statutory duty to maintain or repair the subject public sidewalk can be imposed, or be the basis for liability, upon Movant PRESBYTERY OF NEW YORK CITY. 40. It is undisputed that the claimed location of Plaintiffs alleged accident, the 8681 public sidewalk on the northeast comer of Amsterdam Avenue and Street, New York, NY abuts the church premises of the WEST PARK PRESBYTERIAN CHURCH. (See attached Affidavit of Rev. Doctor Robert Foltz-Morrison, ¶ 2) 41. In sum, because itdoes not own, occupy, control or maintain the property abutting the public sidewalk where the accident occurred, did not have any responsibility to maintain the sidewalk, and did not do anything to create any alleged dangerous condition, no liabilitycan be imposed against Defendant PRESBYTERY OF NEW YORK CITY for plaintiffs accident. As fully deta!!ed in the attached Affidavit of Rev. Doctor Robert Foltz-Morrison, Defendant/Third-Party Defendant PRESBYTERY NYC does not, and did not on November 21, 2016, own, lease, occupy, possess, or control, the premises of the WEST PARK PREBYTERIAN CHURCH located at the northeast corner of Amsterdam Avenue and 86th Street, New York, NY or the sidewalks abutting those premises. (See attached Affidavit of Rev. Doctor Robert Foltz-Morrison, ¶ 9) PRESBYTERY OF NEW YORK CITY does not, and did not on November 21, 2016, operate, supervise, or manage, any aspect of the premises of the WEST PARK PREBYTERIAN CHURCH located at the northeast corner of Amsterdam Avenue and 86th Street, New York, NY or the sidewalks abutting those premises. (Id., ¶10) PRESBYTERY OF NEW YORK CITY does not, and did not on November 21, 2016, or 11 of 15 FILED: NEW YORK COUNTY CLERK 01/24/2019 05:15 PM INDEX NO. 154684/2017 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 01/24/2019 any time prior thereto, engage in or have any responsibility for maintaining, repairing, or inspecting the premises of the WEST PARK PREBYTERIAN CHURCH located at the northeast comer of Amsterdam Avenue and 86th Street, New York, NY or the sidewalks abutting those premises. (Id.,¶11) PRESBYTERY OF NEW YORK CITY does not, and did not on November 21, 2016, or at any time prior thereto, employ, hire, supervise, direct, or control any of the maintenance staff or other persons at the WEST PARK PRESBYTERIAN CHURCH who have, or may have, respoñsibility to maintain, repair, or inspect the sidewalks abutting the Church premises located at the northeast comer of Amsterdam Avenue and 86th Street, New York, NY. (Id., 115) 42. By virtue of the absence of ownership, occupation, possession or control of the premises abutting the involved accident !ocation, there is also no factual basis upon use" which any "special of the sidewalk could be attributed to PRESBYTERY OF NEW YORK CITY. Accordingly, there is no legal or factual basis upon which PRESBYTERY OF NEW YORK CITY could be held liable for an accident on the public sidewalk located 865 at the northeast corner of Amsterdam Avenue and Street in New York, NY. 43. Moreover, PRESBYTERY OF NEW YORK CITY did not cause or create any alleged dangerous condition which may have existed on the public sidewalk where Plaintiff claims her accident occurred. PRESBYTERY OF NEW YORK CITY does not, and did not on November 21, 2016, or any time prior therete, ccñstruct, maintain, repair or inspect any part of the sidewalks abutting the premises of the WEST PARK PREBYTERIAN CHURCH located at the northeast corner of Amsterdam Avenue and 86th Street, New York, NY. (ld., ¶12) PRESBYTERY OF NEW YORK CITY does not, and did not on November 21, 2016, or any time prior thereto, exercise any control over, 12 of 15 FILED: NEW YORK COUNTY CLERK 01/24/2019 05:15 PM INDEX NO. 154684/2017 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 01/24/2019 or have any involvement in, the construction, maintenance, repair, or inspection of any part of the sidewalks abutting the premises of the WEST PARK PREBYTERIAN CHURCH located at the northeast corner of Amsterdam Avenue and 86th Street, New York, NY. (Id.,¶13) PRESBYTERY OF NEW YORK CITY did not on November 21, 2016, or any time prior thereto, employ or hire any person or contractor to construct, rñaiñtain, repair or inspect any part of the sidewalks abutting the premises of the WEST PARK PREBYTERIAN CHURCH located at the northeast corner of Amsterdam Avenue and 86th Street, New York, NY. (Id., ¶14) Accordingly, there is no condition on the involved created" sidewalk that could have been "caused or by Defendant PREBYTERY OF NEW YORK CITY and thus no liability can be attached to Movant for Plaintiff's alleged injuries. 44. PRESBYTERY OF NEW YORK CITY is a distinct and separate entity from WEST PARK. PRESBYTERY NYC and WEST PARK have separate and distinct governing bodies and maintain separate and distinct books and records. PRESBYTERY NYC does not direct, control or supervise the business affairs, facilities management or maintenance, or day to day operations of WEST PARK. (Id., ¶18) 45. Plaintiff WEST PARK's claims and cross- Defendant/Third-Party third-party claims against PRESBYTERY NYC for contractual indemnification or a contractua! requirement of insurance procurement have no basis in fact as no such contract exists or ever existed. Accordingly, all third-party cisims and cross-claims should be dismissed as against PRESBYTERY NYC on the merits. As set forth in the Affidavit of Rev. Doctor Robert Foltz-Morrison, at no time has PRESBYTERY NYC entered into an agreement or contract with WEST PARK to indemnify, hold harmless or defend WEST PARK for loss or damages for liability under such agreement or within the scope of such agreement. No 13 of 15 FILED: NEW YORK COUNTY CLERK 01/24/2019 05:15 PM INDEX NO. 154684/2017 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 01/24/2019 such agreement exists or has ever existed. No such agreement or contract exists by which PRESBYTERY NYC agreed to indemnity, hold harmless, or defend WEST PARK with respect to Plaintiff's accident of November 21, 2016 on the sidewalk abutting the Church premises of WEST PARK or any injuries arising therefrom. (Id., $19) At no time has PRESBYTERY NYC entered into an agreement or contract with WEST PARK to secure liability insurance in favor of, or for the benefit of WEST PARK for loss or damages for liability under such agreement or within the scope of such agreement. No such agreement exists or has ever existed. No such agreement or contract exists by which PRESBYTERY NYC agreed to secure liability insurance in favor of, or for the benefit of WEST PARK with respect to Plaintiffs accident of November 21, 2016 on the sidewalk abutting the Church premises of WEST PARK or any injuries arising therefrom. (ld., ¶20) 46. Movant Defendant PRESBYTERY NYC has satisfied itsburden to make a prima facie showing that there are no material issues of fact requiring a trial of this matter and itis entitled to summary judgment as a matter of law dismissing Plaintiff's Complaint and all cross-claims and third-party claims in their entirety as against PRESBYTERY NYC. Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324-25 (1986). WHEREFORE, it is respectfully requested that the Court issue an Order: (1) pursuant to C.P.LR. judgment in favor of Defendant/Third- §3212, granting summary Plaintiffs' Party Defendant PRESBYTERY OF NEW YORK CITY dismissing Complaint in its entirety on the merits as against Defendant/Third-Party Defendant PRESBYTERY OF NEW YORK CITY, dismissing the Third-Party Complaint of WEST PARK PRESBYTERIAN CHURCH in its entirety on the merits against Defendant/Third-Party Defendant PRESBYTERY OF NEW YORK CITY, and dismissing all cross-claims 14 of 15 FILED: NEW YORK COU