Preview
FILED: NEW YORK COUNTY CLERK 11/09/2022 12:40 PM INDEX NO. 157393/2019
NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 11/09/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-------------------------------------------------------------------------X Index No.: 157393/2019
JESUS GERMAN,
Plaintiff, REPLY AFFIRMATION
-against-
Return Date: 11/21/22
333 RECTOR GARAGE, LLC, BOARD OF MANAGERS
OF 1 RECTOR PARK CONDOMINIUM and MILFORD Motion Sequence No.: 004
MANAGEMENT CORP.,
Defendants.
-------------------------------------------------------------------------X
JEFFREY M. PEPE, an attorney duly admitted to practice law before the Courts of the
State of New York, hereby affirms the truth of the following under penalty of perjury and
pursuant to CPLR § 2106:
Introduction
1. I am an associate of the law firm Smith Mazure, P.C., attorneys for defendant
333 Rector Garage, LLC. As such, I am fully familiar with the facts and circumstances
surrounding the within action.
2. I respectfully submit this Affirmation in reply to the opposition papers submitted
on behalf of plaintiff Jesus German and in further support of the instant motion which seeks an
Order, pursuant to CPLR § 3212, granting defendant 333 Rector Garage, LLC summary
judgment thereby dismissing plaintiff Jesus German’s Verified Complaint as well as all cross-
claims, in their entirety and with prejudice, and upon granting said motion, directing the Clerk of
the Court to sever defendant 333 Rector Garage, LLC from the above-titled caption in this matter
and enter judgment in favor of defendant 333 Rector Garage, LLC, together with such other and
further support as this Honorable Court deems just, proper and equitable.
-3-
1 of 10
FILED: NEW YORK COUNTY CLERK 11/09/2022 12:40 PM INDEX NO. 157393/2019
NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 11/09/2022
3. The numerical exhibits referenced herein are attached hereto. Pursuant to
CPLR § 2214(c), the other exhibits referenced herein were previously filed electronically with
this Honorable Court (New York State Courts Electronic Filing) and therefore, reference to them
in this Affirmation is made by giving the docket numbers on the e-filing system. 1
Argument I
333 RECTOR GARAGE DID NOT OWE A DUTY OF CARE TO THE PLAINTIFF
4. It is respectfully requested that this Honorable Court grant the instant motion
because 333 Rector Garage did not owe a duty of care to the plaintiff Jesus German (“plaintiff”)
nor did it cause or contribute to the alleged accident.
5. From the outset, it must be stressed that defendant 333 Rector Garage, LLC (“333
Rector Garage”) is not the fee owner of the garage unit. Paragraph 15 of plaintiff’s Affirmation
in Opposition (NYSCEF Docket No.: 113) erroneously states that Esteban Idrovo “confirmed
that 333 Rector Garage is the fee owner and lessee of the parking garage.” Mr. Idrovo did not
testify to that effect. He was specifically asked if 333 Rector Garage owns that premises or
leases it and he responded by stating “Lease it.” NYSCEF Docket No.: 88 at pgs. 10, lns. 20 –
22.
6. The deed to the garage unit specifically states that nonparty Rector Albany, LLC
(“Rector Albany”) is the fee owner. See Exhibit 1.2 Aaron Katz – the Principal of 333 Rector
Garage, Rector Albany and Select Garages – specifically stated in his Affidavit that Rector
1
CPLR § 2214(c) states, in part, as follows: “Except when the rules of the court provide otherwise, in an e-filed
action, a party that files papers in connection with a motion need not include copies of papers that were filed
previously electronically with the court, but may make reference to them, giving the docket numbers on the e-filing
system.”
2
The dead for the unit was previously filed as NYSCEF Docket Nos.: 84 and 106 but the document is largely
illegible after uploading.
-4-
2 of 10
FILED: NEW YORK COUNTY CLERK 11/09/2022 12:40 PM INDEX NO. 157393/2019
NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 11/09/2022
Albany owns the garage unit located in the basement of the condominium building. See
NYSCEF Docket No.: 90 at ¶¶ 1 – 3.
7. 333 Rector Garage operated a parking garage in the unit. It is a third-party
contractor that did not owe a duty of care to the plaintiff. In Espinal v. Melville Snow Contrs.,
98 N.Y.2d 136, 746 N.Y.S.2d 120 (2002), the Court of Appeals held that a party who enters into
a contract to render services may be said to have assumed a duty of care – and thus be potentially
liable in tort – to third persons: (1) where the contracting party, in failing to exercise reasonable
care in the performance of his duties, “launches a force or instrument of harm;” (2) where the
plaintiff detrimentally relies on the continued performance of the contracting party’s duties; or
(3) where the contracting party has entirely displaced the other party’s duty to safely maintain
the premises.
8. There is no evidence that 333 Rector Garage launched the instrument of harm or
that plaintiff detrimentally relied on the contractual duties. The fact that 333 Rector Garage,
under the agreement, may have performed routine upkeep and cleaning is insufficient as 333
Rector Garage did not entirely displace Rector Albany or the condominium’s duty to safely
maintain the premises. The evidence clearly shows that the condominium performed these tasks.
9. Mr. Idrovo testified that every time there was a leak, the manager of the building
was informed and the building employees would use brooms and squeegees to push the water to
the drain. NYSCEF Docket No.: 88 at pgs. 14, 32. The building would perform any
maintenance to the structure of the pipes. Id. at pgs. 16 – 17. No one from 333 Rector Garage
performed any repairs to the plumbing or overhead pipes in the garage. Id. at pgs. 17 – 18. Mr.
Idrovo testified that he spoke to the management company whenever there was an issue with the
-5-
3 of 10
FILED: NEW YORK COUNTY CLERK 11/09/2022 12:40 PM INDEX NO. 157393/2019
NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 11/09/2022
garage. Id. at pg. 30. The management staff would maintain the air conditioning units and all
pipes in the garage. Id. at pgs. 30 – 31.
10. Plaintiff unequivocally testified that he observed water on the ground after the
accident that came from the drain pipes on the ceiling. See Exhibit 23 at pg. 275. He observed a
line of water from the drain pipe to the accident location. Id. at pg. 276.
11. Kevin Glennon, the Resident Manager for the building, testified that there are
many pipes that that run throughout the garage that service the entire building. NYSCEF Docket
No.: 88 at pgs. 19, 38. He further testified that water from roof drains lead to the main sewer line
which is in the southwest corner of the garage. Id. at pg. 27. The water runs through pipes on
the ceiling of the garage and lead to the City sewer. Id. at pgs. 27 – 28.
12. Mr. Glennon admitted that he was in the garage when it rained and observed
water on the garage floor. Id. at pg. 30. He testified that the water was coming from a drain
leading from an exposed playground above the garage where a nursery is located. Id. at pgs. 30
– 31. Maurice Michiels, the Regional Portfolio Manager for Milford Management, testified that
the Resident Manager, who reports to the Board of Managers, was responsible for the pipes and
plumbing in the building including those within common walls. NYSCEF Docket No.: 89 at
pgs. 19 – 21. Mr. Michiels confirmed that drainage pipes through the ceiling of the garage
would be the responsibility of the Board of Managers and/or Milford Management. Id. at pg. 29.
13. Clearly, the evidence shows that the water that caused plaintiff’s alleged accident
came from a ceiling pipe that was used to drain other portions of the building. The pipe was not
used by the garage unit. 333 Rector Garage does not own the parking garage unit or any piping
contained therein. See NYSCEF Docket No.: 90 at ¶¶ 8 – 9. 333 Rector Garage never
3
Plaintiff’s deposition transcript was previously filed as NYSCEF Docket Nos.: 81 and 99 but the page numbers
were inadvertently omitted from the top part of each page in the transcript.
-6-
4 of 10
FILED: NEW YORK COUNTY CLERK 11/09/2022 12:40 PM INDEX NO. 157393/2019
NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 11/09/2022
maintained any piping in the parking garage unit or made any repairs to it nor was it responsible
to do so. Id. at ¶¶ 10 – 11. 333 Rector Garage is not responsible to perform any repairs of piping
in the parking garage unit, including piping that ran along the ceiling nor is it responsible to
repair leaking pipes in the ceiling within the parking garage. Id. at ¶¶ 12 – 13.
14. The fact that 333 Rector Garage may have installed a sump pump in the garage is
immaterial to their liability. First, there is no evidence that the sump pump or lack there of
caused or contributed to the accident. Plaintiff’s reliance on the Affidavit of engineer Frank
Boccia is misplaced and should not be considered by this Honorable Court.
15. First, plaintiff did not disclose the witness’ identification or expected testimony
until after the Note of Issue and the instant motion were filed. The Court is precluded from
considering an expert report that was disclosed for the first time in opposition to a summary
judgment motion after the Note of Issue was filed and plaintiff attested to the completion of
discovery. See Wartski v. C.W. Post Campus, 63 A.D.3d 916 (2d Dept. 2009); see also Coley v.
Michelin Tire Corp., 450 N.Y.S.2d 538 (2d Dept. 1982). Here, plaintiff filed the Note of Issue
on July 8, 2022 and the instant summary judgment motion was filed on September 2, 2022.
See NYSCEF Docket No.: 68; see also NYSCEF Docket Nos.: 72 – 90.
16. Second, Mr. Boccia’s Affidavit is purely speculative and conclusionary. He did
not specifically inspect or comment on the ceiling pipe that his client testified he saw leaking on
the day of the accident. Per the testimony of Mr. Glennon, about 70% of the garage unit has
drain pipes overhead. See. NYSCEF Docket No.: 82 at pg. 19.
17. Mr. Boccia did not specifically inspect the area or comment on the exact location
that plaintiff allegedly fell. Rather, he provided photographs that “show many locations of
moisture intrusion.” He mentions that the clogged floor drains, floor drain gutter and sump
-7-
5 of 10
FILED: NEW YORK COUNTY CLERK 11/09/2022 12:40 PM INDEX NO. 157393/2019
NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 11/09/2022
pump system “and the numerous repair locations at the overhead drain plumbing” call into
question the overall integrity of the storm-drain plumbing in the building. He does not, however,
causally relate the specific pipe identified by plaintiff in relation to the drains as a cause to the
alleged accident. He merely gives a conclusionary opinion that “the malfunctioning drainage
plumbing could demonstrate that the plumbing system within the parking garage lacked the
capacity to handle the volume of water during precipitation events.”
18. Furthermore, he speculates that parking garage concrete floor with “an
accumulation of black soot which, when wet, will create a slippery surface” yet he failed to test
the surface demonstrating that it was slippery. See Sanders v. Morris Hgts. Mews Assoc., 69
A.D.3d 432, 892 N.Y.S.2d 99 (1st Dept. 2010) (rejecting an expert affidavit for failing “to
reference a specific standard by asserting a minimum acceptable coefficient of friction.”).
19. The facts of this matter are simple. Plaintiff observed a leaking drain pipe
overhead where he allegedly slipped and fell. 333 Rector Garage was not the fee owner of the
garage but rather operated a garage out of the unit. The leaking drain pipe serviced other parts of
the building and the garage unit did not make special use of it. 333 Rector Garage did not own,
maintain or service the pipe in any way.
20. 333 Rector Garage has met its prima facie burden demonstrating its entitlement to
summary judgment and plaintiff’s opposition papers do not create a genuine issue of material
fact. Accordingly, the instant motion must be granted in its entirety and with prejudice.
-8-
6 of 10
FILED: NEW YORK COUNTY CLERK 11/09/2022 12:40 PM INDEX NO. 157393/2019
NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 11/09/2022
Argument II
PLAINTIFF IS A SPECIAL EMPLOYEE OF 333 RECTOR GARAGE
21. It is respectfully requested that this Honorable Court dismiss plaintiff’s Verified
Complaint against 333 Rector Garage because he was a special employee of the company and as
a matter of law, plaintiff is barred from maintaining any direct causes of action against
333 Rector Garage.
22. Opposing counsel does not dispute the contents of Aaron Katz’s Affidavit. His
statement that Mr. Katz “cannot attest to a single example in which he actually exercised such
control” is false. See ¶ 15 of plaintiff’s Affirmation in Opposition (NYSCEF Docket No.: 113).
23. Mr. Katz specifically stated in his Affidavit that he directed and controlled all
aspects of plaintiff’s work at the parking garage including, but is not limited to, plaintiff’s wages,
method of payment, his work schedule, his duties, promotions, the right to hire and fire him as
well as all other aspects of his employment at the garage unit. See NYSCEF Docket No.: 90 at
¶ 6. The fact that his supervisor was employed by Select Garages and plaintiff’s paystub said
Select Garages is not dispositive on the issue. Mr. Katz explained that Select Garages, LLC is a
management company that provides branding and employees for the parking garage. Id. at ¶ 5.
Most telling is that plaintiff only worked at the 333 Rector Garage location. Id. at ¶ 5.
24. Clearly, the evidence shows that plaintiff was a special employee of 333 Rector
Garage. As such, it is respectfully requested that this Honorable Court dismiss plaintiff’s
Verified Complaint against 333 Rector Garage in its entirety and with prejudice.
WHEREFORE, it is respectfully requested that this Honorable Court issue an Order,
pursuant to CPLR § 3212, granting defendant 333 Rector Garage, LLC summary judgment
thereby dismissing plaintiff Jesus German’s Verified Complaint as well as all cross-claims, in
-9-
7 of 10
FILED: NEW YORK COUNTY CLERK 11/09/2022 12:40 PM INDEX NO. 157393/2019
NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 11/09/2022
their entirety and with prejudice, and upon granting said motion, directing the Clerk of the Court
to sever defendant 333 Rector Garage, LLC from the above-titled caption in this matter and enter
judgment in favor of defendant 333 Rector Garage, LLC, together with such other and further
support as this Honorable Court deems just, proper and equitable.
Dated: New York, New York
November 9, 2022
JEFFREY M. PEPE
JMP/jmp
AIX-00239/525
- 10 -
8 of 10
FILED: NEW YORK COUNTY CLERK 11/09/2022 12:40 PM INDEX NO. 157393/2019
NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 11/09/2022
CERTIFICATION OF WORD COUNT
Jeffrey M. Pepe hereby certifies the following pursuant to Rule 202.8:
1. The word court of the Reply Affirmation – excluding the caption and signature
line – is 2,202 and that it complies with the word count limit pursuant to Rule
202.8.
Jeffrey M. Pepe
9 of 10
FILED: NEW YORK COUNTY CLERK 11/09/2022 12:40 PM INDEX NO. 157393/2019
NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 11/09/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----------------------------------------------------------------------X
JESUS GERMAN, INDEX NO.: 157393/2019
Plaintiff,
-against-
333 RECTOR GARAGE, LLC, BOARD OF
MANAGERS OF 1 RECTOR PARK CONDOMINIUM
and MILFORD MANAGEMENT CORP.,
Defendants.
----------------------------------------------------------------------X
REPLY AFFIRMATION
SMITH MAZURE, P.C.
Attorneys for Defendant
333 Rector Garage, LLC
111 John Street, 20th Floor
New York, NY 10038
(212) 964-7400
Our File No.: AIX-00239
CERTIFICATION PURSUANT TO 22 N.Y.C.R.R. §130-1.1a
JEFFREY M. PEPE hereby certifiesto the best of the undersigned’s knowledge and information and belief and after an inquiry
reasonable under the circumstances, that, pursuant to 22 N.Y.C.R.R. §130-1.1a-b, (1) the contentions contained in the annexed document are
not frivolous as defined in section 130-1.1(c) of this Subpart, and (2) where the paper is an initiating pleading, (i) the matter was not obtained
through illegal conduct, or that if it was, the attorney or other persons responsible for the illegal conduct are not participating in the matter or
sharing in any fee earned there from, and (ii) the matter was not obtained in violation of 22 NYCRR 1200.41-a [DR 7-111].
Dated: New York, New York JEFFREY M. PEPE
November 9, 2022
PLEASE TAKE NOTICE
that the within is a true copy of a entered in the office of the clerk of the within named Court on
.
that a of which the within is a true copy will be presented for settlement to the Hon.
one of the judges of the
within named Court at , on at 9:30 a.m.
525
10 of 10
Preview
FILED: NEW YORK COUNTY CLERK 11/09/2022 12:40 PM INDEX NO. 157393/2019 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 11/09/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------------X Index No.: 157393/2019 JESUS GERMAN, Plaintiff, REPLY AFFIRMATION -against- Return Date: 11/21/22 333 RECTOR GARAGE, LLC, BOARD OF MANAGERS OF 1 RECTOR PARK CONDOMINIUM and MILFORD Motion Sequence No.: 004 MANAGEMENT CORP., Defendants. -------------------------------------------------------------------------X JEFFREY M. PEPE, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the truth of the following under penalty of perjury and pursuant to CPLR § 2106: Introduction 1. I am an associate of the law firm Smith Mazure, P.C., attorneys for defendant 333 Rector Garage, LLC. As such, I am fully familiar with the facts and circumstances surrounding the within action. 2. I respectfully submit this Affirmation in reply to the opposition papers submitted on behalf of plaintiff Jesus German and in further support of the instant motion which seeks an Order, pursuant to CPLR § 3212, granting defendant 333 Rector Garage, LLC summary judgment thereby dismissing plaintiff Jesus German’s Verified Complaint as well as all cross- claims, in their entirety and with prejudice, and upon granting said motion, directing the Clerk of the Court to sever defendant 333 Rector Garage, LLC from the above-titled caption in this matter and enter judgment in favor of defendant 333 Rector Garage, LLC, together with such other and further support as this Honorable Court deems just, proper and equitable. -3- 1 of 10 FILED: NEW YORK COUNTY CLERK 11/09/2022 12:40 PM INDEX NO. 157393/2019 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 11/09/2022 3. The numerical exhibits referenced herein are attached hereto. Pursuant to CPLR § 2214(c), the other exhibits referenced herein were previously filed electronically with this Honorable Court (New York State Courts Electronic Filing) and therefore, reference to them in this Affirmation is made by giving the docket numbers on the e-filing system. 1 Argument I 333 RECTOR GARAGE DID NOT OWE A DUTY OF CARE TO THE PLAINTIFF 4. It is respectfully requested that this Honorable Court grant the instant motion because 333 Rector Garage did not owe a duty of care to the plaintiff Jesus German (“plaintiff”) nor did it cause or contribute to the alleged accident. 5. From the outset, it must be stressed that defendant 333 Rector Garage, LLC (“333 Rector Garage”) is not the fee owner of the garage unit. Paragraph 15 of plaintiff’s Affirmation in Opposition (NYSCEF Docket No.: 113) erroneously states that Esteban Idrovo “confirmed that 333 Rector Garage is the fee owner and lessee of the parking garage.” Mr. Idrovo did not testify to that effect. He was specifically asked if 333 Rector Garage owns that premises or leases it and he responded by stating “Lease it.” NYSCEF Docket No.: 88 at pgs. 10, lns. 20 – 22. 6. The deed to the garage unit specifically states that nonparty Rector Albany, LLC (“Rector Albany”) is the fee owner. See Exhibit 1.2 Aaron Katz – the Principal of 333 Rector Garage, Rector Albany and Select Garages – specifically stated in his Affidavit that Rector 1 CPLR § 2214(c) states, in part, as follows: “Except when the rules of the court provide otherwise, in an e-filed action, a party that files papers in connection with a motion need not include copies of papers that were filed previously electronically with the court, but may make reference to them, giving the docket numbers on the e-filing system.” 2 The dead for the unit was previously filed as NYSCEF Docket Nos.: 84 and 106 but the document is largely illegible after uploading. -4- 2 of 10 FILED: NEW YORK COUNTY CLERK 11/09/2022 12:40 PM INDEX NO. 157393/2019 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 11/09/2022 Albany owns the garage unit located in the basement of the condominium building. See NYSCEF Docket No.: 90 at ¶¶ 1 – 3. 7. 333 Rector Garage operated a parking garage in the unit. It is a third-party contractor that did not owe a duty of care to the plaintiff. In Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 746 N.Y.S.2d 120 (2002), the Court of Appeals held that a party who enters into a contract to render services may be said to have assumed a duty of care – and thus be potentially liable in tort – to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, “launches a force or instrument of harm;” (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties; or (3) where the contracting party has entirely displaced the other party’s duty to safely maintain the premises. 8. There is no evidence that 333 Rector Garage launched the instrument of harm or that plaintiff detrimentally relied on the contractual duties. The fact that 333 Rector Garage, under the agreement, may have performed routine upkeep and cleaning is insufficient as 333 Rector Garage did not entirely displace Rector Albany or the condominium’s duty to safely maintain the premises. The evidence clearly shows that the condominium performed these tasks. 9. Mr. Idrovo testified that every time there was a leak, the manager of the building was informed and the building employees would use brooms and squeegees to push the water to the drain. NYSCEF Docket No.: 88 at pgs. 14, 32. The building would perform any maintenance to the structure of the pipes. Id. at pgs. 16 – 17. No one from 333 Rector Garage performed any repairs to the plumbing or overhead pipes in the garage. Id. at pgs. 17 – 18. Mr. Idrovo testified that he spoke to the management company whenever there was an issue with the -5- 3 of 10 FILED: NEW YORK COUNTY CLERK 11/09/2022 12:40 PM INDEX NO. 157393/2019 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 11/09/2022 garage. Id. at pg. 30. The management staff would maintain the air conditioning units and all pipes in the garage. Id. at pgs. 30 – 31. 10. Plaintiff unequivocally testified that he observed water on the ground after the accident that came from the drain pipes on the ceiling. See Exhibit 23 at pg. 275. He observed a line of water from the drain pipe to the accident location. Id. at pg. 276. 11. Kevin Glennon, the Resident Manager for the building, testified that there are many pipes that that run throughout the garage that service the entire building. NYSCEF Docket No.: 88 at pgs. 19, 38. He further testified that water from roof drains lead to the main sewer line which is in the southwest corner of the garage. Id. at pg. 27. The water runs through pipes on the ceiling of the garage and lead to the City sewer. Id. at pgs. 27 – 28. 12. Mr. Glennon admitted that he was in the garage when it rained and observed water on the garage floor. Id. at pg. 30. He testified that the water was coming from a drain leading from an exposed playground above the garage where a nursery is located. Id. at pgs. 30 – 31. Maurice Michiels, the Regional Portfolio Manager for Milford Management, testified that the Resident Manager, who reports to the Board of Managers, was responsible for the pipes and plumbing in the building including those within common walls. NYSCEF Docket No.: 89 at pgs. 19 – 21. Mr. Michiels confirmed that drainage pipes through the ceiling of the garage would be the responsibility of the Board of Managers and/or Milford Management. Id. at pg. 29. 13. Clearly, the evidence shows that the water that caused plaintiff’s alleged accident came from a ceiling pipe that was used to drain other portions of the building. The pipe was not used by the garage unit. 333 Rector Garage does not own the parking garage unit or any piping contained therein. See NYSCEF Docket No.: 90 at ¶¶ 8 – 9. 333 Rector Garage never 3 Plaintiff’s deposition transcript was previously filed as NYSCEF Docket Nos.: 81 and 99 but the page numbers were inadvertently omitted from the top part of each page in the transcript. -6- 4 of 10 FILED: NEW YORK COUNTY CLERK 11/09/2022 12:40 PM INDEX NO. 157393/2019 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 11/09/2022 maintained any piping in the parking garage unit or made any repairs to it nor was it responsible to do so. Id. at ¶¶ 10 – 11. 333 Rector Garage is not responsible to perform any repairs of piping in the parking garage unit, including piping that ran along the ceiling nor is it responsible to repair leaking pipes in the ceiling within the parking garage. Id. at ¶¶ 12 – 13. 14. The fact that 333 Rector Garage may have installed a sump pump in the garage is immaterial to their liability. First, there is no evidence that the sump pump or lack there of caused or contributed to the accident. Plaintiff’s reliance on the Affidavit of engineer Frank Boccia is misplaced and should not be considered by this Honorable Court. 15. First, plaintiff did not disclose the witness’ identification or expected testimony until after the Note of Issue and the instant motion were filed. The Court is precluded from considering an expert report that was disclosed for the first time in opposition to a summary judgment motion after the Note of Issue was filed and plaintiff attested to the completion of discovery. See Wartski v. C.W. Post Campus, 63 A.D.3d 916 (2d Dept. 2009); see also Coley v. Michelin Tire Corp., 450 N.Y.S.2d 538 (2d Dept. 1982). Here, plaintiff filed the Note of Issue on July 8, 2022 and the instant summary judgment motion was filed on September 2, 2022. See NYSCEF Docket No.: 68; see also NYSCEF Docket Nos.: 72 – 90. 16. Second, Mr. Boccia’s Affidavit is purely speculative and conclusionary. He did not specifically inspect or comment on the ceiling pipe that his client testified he saw leaking on the day of the accident. Per the testimony of Mr. Glennon, about 70% of the garage unit has drain pipes overhead. See. NYSCEF Docket No.: 82 at pg. 19. 17. Mr. Boccia did not specifically inspect the area or comment on the exact location that plaintiff allegedly fell. Rather, he provided photographs that “show many locations of moisture intrusion.” He mentions that the clogged floor drains, floor drain gutter and sump -7- 5 of 10 FILED: NEW YORK COUNTY CLERK 11/09/2022 12:40 PM INDEX NO. 157393/2019 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 11/09/2022 pump system “and the numerous repair locations at the overhead drain plumbing” call into question the overall integrity of the storm-drain plumbing in the building. He does not, however, causally relate the specific pipe identified by plaintiff in relation to the drains as a cause to the alleged accident. He merely gives a conclusionary opinion that “the malfunctioning drainage plumbing could demonstrate that the plumbing system within the parking garage lacked the capacity to handle the volume of water during precipitation events.” 18. Furthermore, he speculates that parking garage concrete floor with “an accumulation of black soot which, when wet, will create a slippery surface” yet he failed to test the surface demonstrating that it was slippery. See Sanders v. Morris Hgts. Mews Assoc., 69 A.D.3d 432, 892 N.Y.S.2d 99 (1st Dept. 2010) (rejecting an expert affidavit for failing “to reference a specific standard by asserting a minimum acceptable coefficient of friction.”). 19. The facts of this matter are simple. Plaintiff observed a leaking drain pipe overhead where he allegedly slipped and fell. 333 Rector Garage was not the fee owner of the garage but rather operated a garage out of the unit. The leaking drain pipe serviced other parts of the building and the garage unit did not make special use of it. 333 Rector Garage did not own, maintain or service the pipe in any way. 20. 333 Rector Garage has met its prima facie burden demonstrating its entitlement to summary judgment and plaintiff’s opposition papers do not create a genuine issue of material fact. Accordingly, the instant motion must be granted in its entirety and with prejudice. -8- 6 of 10 FILED: NEW YORK COUNTY CLERK 11/09/2022 12:40 PM INDEX NO. 157393/2019 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 11/09/2022 Argument II PLAINTIFF IS A SPECIAL EMPLOYEE OF 333 RECTOR GARAGE 21. It is respectfully requested that this Honorable Court dismiss plaintiff’s Verified Complaint against 333 Rector Garage because he was a special employee of the company and as a matter of law, plaintiff is barred from maintaining any direct causes of action against 333 Rector Garage. 22. Opposing counsel does not dispute the contents of Aaron Katz’s Affidavit. His statement that Mr. Katz “cannot attest to a single example in which he actually exercised such control” is false. See ¶ 15 of plaintiff’s Affirmation in Opposition (NYSCEF Docket No.: 113). 23. Mr. Katz specifically stated in his Affidavit that he directed and controlled all aspects of plaintiff’s work at the parking garage including, but is not limited to, plaintiff’s wages, method of payment, his work schedule, his duties, promotions, the right to hire and fire him as well as all other aspects of his employment at the garage unit. See NYSCEF Docket No.: 90 at ¶ 6. The fact that his supervisor was employed by Select Garages and plaintiff’s paystub said Select Garages is not dispositive on the issue. Mr. Katz explained that Select Garages, LLC is a management company that provides branding and employees for the parking garage. Id. at ¶ 5. Most telling is that plaintiff only worked at the 333 Rector Garage location. Id. at ¶ 5. 24. Clearly, the evidence shows that plaintiff was a special employee of 333 Rector Garage. As such, it is respectfully requested that this Honorable Court dismiss plaintiff’s Verified Complaint against 333 Rector Garage in its entirety and with prejudice. WHEREFORE, it is respectfully requested that this Honorable Court issue an Order, pursuant to CPLR § 3212, granting defendant 333 Rector Garage, LLC summary judgment thereby dismissing plaintiff Jesus German’s Verified Complaint as well as all cross-claims, in -9- 7 of 10 FILED: NEW YORK COUNTY CLERK 11/09/2022 12:40 PM INDEX NO. 157393/2019 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 11/09/2022 their entirety and with prejudice, and upon granting said motion, directing the Clerk of the Court to sever defendant 333 Rector Garage, LLC from the above-titled caption in this matter and enter judgment in favor of defendant 333 Rector Garage, LLC, together with such other and further support as this Honorable Court deems just, proper and equitable. Dated: New York, New York November 9, 2022 JEFFREY M. PEPE JMP/jmp AIX-00239/525 - 10 - 8 of 10 FILED: NEW YORK COUNTY CLERK 11/09/2022 12:40 PM INDEX NO. 157393/2019 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 11/09/2022 CERTIFICATION OF WORD COUNT Jeffrey M. Pepe hereby certifies the following pursuant to Rule 202.8: 1. The word court of the Reply Affirmation – excluding the caption and signature line – is 2,202 and that it complies with the word count limit pursuant to Rule 202.8. Jeffrey M. Pepe 9 of 10 FILED: NEW YORK COUNTY CLERK 11/09/2022 12:40 PM INDEX NO. 157393/2019 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 11/09/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------------X JESUS GERMAN, INDEX NO.: 157393/2019 Plaintiff, -against- 333 RECTOR GARAGE, LLC, BOARD OF MANAGERS OF 1 RECTOR PARK CONDOMINIUM and MILFORD MANAGEMENT CORP., Defendants. ----------------------------------------------------------------------X REPLY AFFIRMATION SMITH MAZURE, P.C. Attorneys for Defendant 333 Rector Garage, LLC 111 John Street, 20th Floor New York, NY 10038 (212) 964-7400 Our File No.: AIX-00239 CERTIFICATION PURSUANT TO 22 N.Y.C.R.R. §130-1.1a JEFFREY M. PEPE hereby certifiesto the best of the undersigned’s knowledge and information and belief and after an inquiry reasonable under the circumstances, that, pursuant to 22 N.Y.C.R.R. §130-1.1a-b, (1) the contentions contained in the annexed document are not frivolous as defined in section 130-1.1(c) of this Subpart, and (2) where the paper is an initiating pleading, (i) the matter was not obtained through illegal conduct, or that if it was, the attorney or other persons responsible for the illegal conduct are not participating in the matter or sharing in any fee earned there from, and (ii) the matter was not obtained in violation of 22 NYCRR 1200.41-a [DR 7-111]. Dated: New York, New York JEFFREY M. PEPE November 9, 2022 PLEASE TAKE NOTICE that the within is a true copy of a entered in the office of the clerk of the within named Court on . that a of which the within is a true copy will be presented for settlement to the Hon. one of the judges of the within named Court at , on at 9:30 a.m. 525 10 of 10