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FILED: NEW YORK COUNTY CLERK 04/25/2023 03:09 PM INDEX NO. 152786/2023
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/25/2023
SUPREME COURT OF THE STATE OF NEW YORK Index #:152786/2023
COUNTY OF NEW YORK
x
KRISTIN BALLAS,
Petitioner, REPLY AFFIRMATION
-against-
NEW YORK CONVENTION CENTER OPERATING
CORPORATION, d/b/a THE JACOB K. JAVITS
CONVENTION CENTER,
Respondents.
x
ROSA M. FEENEY, an attorney duly admitted to practice law in the State of New York,
hereby affirms the following under the penalties of perjury:
1. I am a partner of the firm of Smiley & Smiley, LLP, attorneys for the Petitioner,
KRISTIN BALLAS (hereinafter “BALLAS”) and, as such, I am fully familiar with the facts
and circumstances of this matter.
2. This affirmation is respectfully submitted in reply to the opposition of NEW YORK
CONVENTION CENTER OPERATING CORPORATION, d/b/a THE JACOB K. JAVITS
CONVENTION CENTER (hereinafter “JAVITS”) and in further support of the application by
the Petitioner for leave to serve a late Notice of Claim pursuant to General Municipal Law §50-e
(5) and Public Authorities Law § 2570, upon the Respondents, and to have the proposed Notice
of Claim, and the Summons and Complaint, deemed filed and served nunc pro tunc.
3. Based upon the above, Petitioner respectfully requests that this court permit
Petitioner to file, and deem served, nunc pro tunc, the annexed Notice of Claim, and Summons
and Complaint against JAVITS, upon consideration of all the facts as contained herein.
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JAVITS HAD ACTUAL KNOWLEDGE OF THE ESSENTIAL
FACTS CONSTITUTING THE CLAIM
4. There is no dispute that the question of whether actual knowledge was timely
acquired is considered to be the “most important factor” when the court is considering whether
to permit the late filing of a Notice of Claim. Matter of Catania v. City of NY, 188 A.D.3d 1041,
1042 (2d Dept. 2020); See also Matter of Miskin v. City of NY, 175 A.D.3d 684, 685 (2d Dept.
2019); Melcer v. City of NY, 185 AD3d 672, 674 (2d Dept. 2020) Matter of Nunez v. Vil. of
Rockville Ctr., 176 AD3d 1211, 1216 (2d Dept. 2019); See Affirmation in Opposition at
paragraph 8.
5. Although JAVITS maintains that it did not know about Petitioner's claim, it offers
no evidence to contradict Petitioner's account that JAVITS, through their agent and security
personnel acquired knowledge of the essential facts of his claim on the day of BALLAS’ injury
and again shortly thereafter by BALLAS herself and then by counsel sending preservation
letters. See Sproule v. New York Convention Ctr. Operating Corp., 180 A.D.3d 496, 497, 120
N.Y.S.3d 5 (1st Dep't 2020); Williams v New York Convention Ctr. Operating Corp., 2020 N.Y.
Misc. LEXIS 5263, 2020 NY Slip Op 32849(U) (NY County 2020).
6. The following facts are indisputable:
• On the date of the accident, KRISTIN BALLAS attended a technology conference within
the JAVITS facility, hosted and controlled by JAVITS (See Affidavit of KRISTIN BALLAS,
annexed as Exhibit “D” to the Petition. Hereinafter “BALLAS Affidavit.”)
• On the date of the accident, it was reported to JAVITS that “the swing set toppled over
causing pt to hit the side of head/face.” (See Accident Report annexed as Exhibit “E” to Petition.
Hereinafter “Accident Report.”)
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• On the date of the accident JAVITS security personnel were called to the scene of the
accident. (See Accident Report and BALLAS Affidavit)
• On the date of the accident, BALLAS was taken to the JAVITS medical office on the 4th
floor of the JAVITS Center. (BALLAS Affidavit and “Call Location” identified in the Accident
Report)
• On the date of the accident, BALLAS was tended to by JAVITS medical and security
personnel. (See Accident Report)
• On the date of the accident, JAVITS became aware of BALLAS’ name, address, contact
information and physical complaints. They asked and documented her past medical history and
took her vital signs. (See Accident Report)
• BALLAS was experiencing excruciating headaches and vomiting from being struck in the
head and body by the swing chair/table. (BALLAS Affidavit)
• JAVITS Accident Report indicates that the “Chief Complaint” was “hit head.”
• JAVITS Accident Report indicates that BALLAS stated “pain in head 6/10”
• JAVITS Accident Report indicates “Pt having panic attack as father recently passed away
due to TBI.”
• JAVITS Accident Report indicates “ice pack given for head.”
• JAVITS Accident Report indicates “911 was called for trp to hospital.”
• JAVITS Accident Report identifies JAVITS security officer, “Shield #2513.”
• JAVITS Accident Report indicates “Pt Care transferred to 81C2 by Shield # 2513.”
• On June 2, 2022, KRISTEN BALLAS spoke with JAVITS security personnel, who
identified himself as “Dan,” requesting a copy of JAVITS Accident Report.” (BALLAS
Affidavit)
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• On September 8, 2022, correspondence was sent to JAVITS again advising that BALLAS
had sustained serious personal injuries while attending a conference in their facility and
demanding that they preserve all evidence.
7. JAVITS characterization that KRISTIN BALLAS simply “fell from an indoor
chair/table” is refuted by their own Accident Report, which clearly indicates that BALLAS was
struck in the head and body by an enormous swing table/chair that toppled on her.
8. Furthermore, she was treated by JAVITS personnel, who took her medical history,
vital signs and had her transferred to the hospital by ambulance.
9. It is not possible for JAVITS to argue they did not have notice of this accident on
the day it occurred and again after the accident.
10. Additionally, as set forth more fully below, the argument that JAVITS had no
knowledge of the facts that underlie the legal theories of liability, is belied by their own accident
report and evidence, which was recently acquired by our office, which was within the exclusive
control of JAVITS.
11. As previously indicated, this office had commenced an action against JAVITS in
Federal Court, which action has been discontinued without prejudice, in order to seek the
necessary permission from this court to file the late notice of claim against JAVITS. (See
Exhibit “C” to Petition.)
12. The Federal Court action was also commenced against Greenhouse Software, Inc.
(“hereinafter “Greenhouse”), which is being represented by the same attorneys representing
JAVITS herein. Greenhouse was a sponsor for the Greenhouse Open event which was attended
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by BALLAS. Presumably, JAVITS is being defended as an additional insured under the
Greenhouse insurance policy, which was procured for the event.
13. As part of that litigation, our office was recently provided with a “Licensing
Agreement” between JAVITS and Greenhouse dated June 8, 2021, pertinent parts which are
annexed hereto as Exhibit “H.”
14. This Licensing Agreement has become relevant here, since JAVITS claims that it
had no notice of the facts that underlie the legal theory or theories on which liability could be
predicated, however this Licensing Agreement demonstrates that JAVITS is and was aware, or
should have been aware, of the legal basis for liability.
15. The Licensing Agreement, which is between JAVITS as the Licensor and
Greenhouse as the Licensee provides in pertinent part as follows:
15: EXCLUSIVE LABOR.
A. Licensor reserves the exclusive right to supply the labor
utilized within the Center to perform any of the services described in Exhibit
A to this Agreement, which is incorporated herein by reference, and Licensee
agrees that neither Licensee nor any contractor employed by Licensee shall
utilize any other labor to perform such services. Such labor shall be
provided on written order at the established rates of Licensor for such labor
and shall be utilized pursuant to the rules set forth in Exhibit A. Licensee
agrees to comply with the Rules set forth in Exhibit A.
EXHIBIT A
WORK RULES
I. Contractor and exhibitor must hire Javits labor to perform the
following tasks:
A. Loading, unloading and moving exhibitor freight materials and
machinery. Loading and unloading decorating contractors' equipment to
and from a marshalling point on the exhibit show floor. Exceptions
are exhibitor "hand carry" materials. Exhibitor hand-carry items may
be exempted from this requirement pursuant to more detailed rules
issued by Licensor from time to time.
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B. Crating and recrating, and all work involved in the erection and
dismantling of exhibits, displays, backgrounds and booths; all work
requiring the use of bolts and screws or nail fasteners; tying, hanging
or nailing, taping of flags, banners, signs, tile and rug-laying,
skidding and reskidding and turntables; handling and delivery of
furniture, carpeting, modular interlocking booth systems and other
contractor owned and leased equipment; pad wrapping, protection work,
ramp protection; and installing draperies, including but not limited
to wall draperies, table skirting, booth equipment draperies, flag and
bunting and party decorations. "Pop-up" booth may be exempted from this
requirement pursuant to more detailed rules issued by Licensor from
time to time.
16. Pursuant to the Licensing Agreement, JAVITS labor was required to be utilized to
load, unload, move, decorate, erect any exhibits in the facility, other than “hand carry”
materials. This enormous swing table/chair would have therefore been loaded, unloaded,
moved, erected, decorated and probably installed and/or assembled by JAVITS itself, who had
the legal obligation to make sure that all exhibits were properly installed, assembled and safe
to use by its patrons. The swing table/chair was clearly not a “hand carry” item and therefore
JAVITS personnel or labor must have moved this display and set it up for use by patrons of the
exhibition.
17. For the court’s reference, attached as Exhibit “I” hereto is an image of KRISTIN
BALLAS sitting on the “Swing Table/Chair”, seconds before the accident occurred. This
apparatus is clearly not a “hand carry” item and required several people to lift the swing
chair/table off of BALLAS after it toppled on her.
18. Therefore, in addition to the general legal obligation of a host to provide a safe place
for its patrons, it is glaringly obvious, that the additional theory of liability against JAVITS is
that they were involved in the loading, unloading, moving, decorating, erection, installation,
assembly etc., which are the facts that underlie the theory of liability against JAVITS. This
Licensing Agreement is and was within JAVITS exclusive knowledge and control and it cannot
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be heard to argue it had no idea how it could be held liable when, when JAVITS laborers were
required to set up this display within the facility, which then toppled over injuring an innocent
patron of the event. The fact that JAVITS laborers may have been responsible for this accident
is a compelling factor in permitting the late filing of a Notice of Claim. Sproule, supra.
19. Furthermore, it seems implausible, that this large display topples on top of a patron
in the JAVITS facility; that the patron is seen and treated by the JAVITS medical office and
transported to the hospital and JAVITS conducts no other investigation or notifies its insurance
carrier. Furthermore, any surveillance video of this event is within the exclusive knowledge
and control of JAVITS. Again, this information is exclusively within JAVITS control and
JAVITS should not be permitted to claim ignorance or prejudice from its own inaction or
claimed ignorance of this accident. See Sproule, supra. and Williams, supra.
20. In Williams, supra., again, a case against JAVITS, the court found that where an
accident report was prepared, that it is highly unlikely that JAVITS did not acquire the essential
facts of the claim.
21. Additionally, JAVITS has not submitted an Affidavit from anyone with personal
knowledge claiming they had no knowledge of the accident or possible basis for liability. The
unsupported statement that JAVITS “may have learned that a convention patron was not being
careful while sitting on the swing and caused it to become unbalance,” is completely
unsubstantiated and unsupported by any evidence and should be disregarded by the court.
22. In the context of summary judgment, it is well settled that the failure to submit an
affidavit of a person who has personal knowledge of the facts is detrimental to opposing a motion.
Zuckerman v City of New York, 49 NY2d 557 (1980). Conclusory allegations, bold assertions, or
speculation are simply insufficient to successfully oppose a motion for summary judgment.
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Zuckerman, supra. A shadowy semblance of an issue is not enough to defeat a motion for
summary judgment. Lo Breglio v. Marks, 481 NYS2d 352 (1st Dept. 1984)
23. BALLAS has set forth a prima facie case of actual notice and an attorney
affirmation, in opposition is insufficient to establish lack of knowledge and prejudice by the
delay in filing the late Notice of Claim.
24. McFarland v City of New York, 169 AD3d 687 (2nd Dept 2019), cited by JAVITS is
distinguishable from the facts of this case. In McFarland, supra., an “unusual occurrence”
report was filed after a plaintiff fell on the floor of a DSNY garage and had a seizure. The
report made no reference to the alleged presence of a greasy substance on the floor or that the
petitioner slipped and fell on any substance which was the alleged cause of the injury.
25. In this case, the Accident Report was very clear that a swing table/chair, that was
within the JAVITS facility, fell on top of BALLAS and JAVITS had the exclusive knowledge
that its own labor had installed and/or assembled the swing table/chair which toppled over.
26. Furthermore, Matter of Rivera v NYCHA, 25 AD3d 450 (1st Dept. 2006) is also
inapplicable. That case involved the filing of a Police Accident Report for an assault that
occurred in a NYCHA building. Here, the report was prepared by JAVITS itself, by its medical
personnel and the security personnel. This was not a report by an outside agency or the plaintiff
herself.
27. As set forth by the court in Matter of Orozco v City of NY, 200 AD3d 559, 562 (1st
Dept 2021), "the existence of reports in its own files concerning those facts and circumstances
[giving rise to a claim] is the functional equivalent of an investigation." While the Orozco case
involved false arrest, the key takeaway from the Orozco, supra. matter is the court’s statement
that “mere existence of a report under certain circumstances might be insufficient to impute
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actual knowledge, here those reports were generated by those very persons … whose conduct
forms the basis of petitioner's suit.”
28. Further, the matter of Oliveri v City of New York, 270 AD2d 5 (1st Dept 2000), is
also inapplicable, since that again involved a police accident report and involved the request to
amend the statement of injury from a property damage claim only to include a claim for
personal injury.
29. Furthermore, Walker v NYC Transit Auth, 266 AD2d 55 (1st Dept 1999), again
involved a police aided report and an employee’s own report.
30. Here JAVITS itself created the report and again knew or should have known that it
could be held liable when a patron of an event within the facility has an apparatus fall on top
of her causing documented injury. Furthermore, JAVITS had the exclusive knowledge that it
had control of or should have had control of, the loading, unloading transporting, installation
and assembly of the swing/table chair.
31. Finally, while the Licensing Agreement is included for the first time in this Reply,
it has become necessary, since JAVITS, via attorney affirmation, raises for the first time in its
opposition, that it had no knowledge of the facts that underlie the plaintiff’s legal theory.
Furthermore, this evidence was within the exclusive possession and control of JAVITS.
32. As stated by the court in Santos Alas v Republic Natl. Holding Corp., 2022 NY Slip
Op 33531[U], (NY County 2022):
The function of reply papers is to address arguments made in opposition to the position taken
by the movant and not to permit the movant to introduce new arguments in support of, or new
grounds [or evidence] for the motion" (Kennelly v Mobius Realty Holdings LLC, 33 AD3d 380,
381, 822 N.Y.S.2d 264 (1st Dept 2006). "This rule, however, is not inflexible, and a court, in
the exercise of its discretion, may consider a claim or evidence offered for the first time in reply
where the offering party's adversaries responded to the newly presented claim or evidence."
Here, while the affidavit submitted in Ardito's reply does not concern an argument made by
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plaintiff in opposition, plaintiff was given an opportunity to file a surreply addressing the
substantive points raised in the reply, including the principal's statement that Ardito did not
receive notice of the suit until after the motion for default judgment was decided (see Gastaldi
v Chen, 56 AD3d 420, 420, 866 N.Y.S.2d 750 (2d Dept 2008).
33. JAVITS claim that they did not have knowledge of the facts that underlie the legal
theory compel the production of their own contract and internal policy which require all
licensees to use JAVITS labor. This is a critical fact, which Petitioner could not have known,
and which solidifies the fact that the JAVITS did have knowledge of the facts that underlie the
legal theory.
34. Further, if this court believes that the submission of this Licensing Agreement was
not required to be produced because of an argument made by JAVITS, then the court can grant
JAVITS an opportunity to submit a surreply.
35. Therefore, based upon the above it is evident that Petitioner has established the
“most important factor” of actual knowledge by JAVITS of the accident and the facts that
underlie the Petitioner’s legal theory and the Petition should be granted.
JAVITS HAS FAILED TO ESTABLISH SUBSTANTIAL PREJUDICE
36. Conspicuously absent from JAVITS opposition is any evidentiary showing that it
will be substantially prejudiced by the delay in filing a notice of claim. While Petitioner bears
the burden of demonstrating it has “some evidence or plausible argument” that the Respondent
is not “substantially prejudiced if late notice were allowed,” the Respondent must set forth “a
particularized evidentiary showing that it will be substantially prejudiced.” Matter of Joseph v
City of New York, 176 NYS3d 69 (2nd Dept 2022). JAVITS has not done so here.
37. Permitting a late Notice of Claim will not prejudice JAVITS in maintaining
a defense on the merits due to the fact that they had actual notice of the facts in question on the
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date of the accident. In Matter of Beary v. City of Rye, 406 N.Y.S.2d 9 (1978) the Court of
Appeals held that “actual knowledge of the facts... makes it unlikely that prejudice will flow
from a delay in filing.”
38. Having conducted an investigation into this accident, and/or having had
the opportunity to do so, JAVITS cannot make a good faith argument of prejudice.
39. Furthermore, the personal injury case which has been filed in Federal Court has had
no discovery, nor discovery orders set by the Court. The Federal Court Judge was made aware
that we were filing this application with the court and that an additional party was being named
to the Federal Court Action and therefore has extended the date for the Preliminary Scheduling
Conference until the additional party has answered.
40. This office and JAVITS counsel already discussed the strategy that if this court
grants the application to file the Notice of Claim, that we would make an application to the
Federal Court to remove this action against JAVITS to Federal court to join the action with the
pending case against Greenhouse.
41. Furthermore, JAVITS is being represented by the same counsel that represents
Greenhouse in the Federal Court action and therefore there can be no prejudice demonstrated.
42. The passage of time alone is insufficient to establish prejudice. Rodriguez v. City of
New York, 172 A.D.3d 556, 557, 101 N.Y.S.3d 303 (1st Dep't 2019).
43. Therefore, there is no arguable prejudice to JAVITS.
BALLAS HAS ESTABLISHED REASONABLE EXCUSE FOR THE DELAY
44. Importantly, there is no dispute, that “The presence or absence of any one factor, is
not determinative.” Matter of Thomas v. City of New York,118 A.D.3d 537, 538, 988 N.Y.S.2d
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152 (1st Dept. 2014); see, Matter of Farrell v. City of New York, 191 AD2d 698 ( 2nd Dept.
1993); Matter of Charles v. New York City Health & Hospitals Corp., 166 AD2nd 526 (2nd
Dept. 1990); General Municipal Law §50-e, McKinney’s Consolidated Laws of New York.
45. In this case KRISTIN BALLAS was not aware that JAVITS was an entity subject
to the Notice of Claim rules.
46. While it is understood that ignorance of the requirement to serve a Notice of Claim
is not an excuse, it is not apparent that JAVITS is a municipal entity requiring the serving of a
Notice of Claim. There is no municipal title, such as City, Town or State attached to the name
and it is understandable how a lay person would have no idea that JAVITS was required to be
served.
47. Furthermore, as previously indicated, and set forth more fully above, JAVITS was
aware of the accident on the date it occurred and BALLAS called just a few days after the
accident asking for a copy of the Accident Report. The notice was well within the 90-days
from the date of the accident.
48. Furthermore, preservation letters were sent by counsel within 106 days from the
accident and a Federal Court action was commenced within six months of the accident.
49. In Sproule, supra., a case against JAVITS, although the Petitioner failed to set forth
a reasonable excuse for the delay in filing a Notice of Claim, the First Department specifically
noted that a JAVITS laborer operated a lift that injured the plaintiff. The court also noted that
there was surveillance film, and the insurance company was notified of the accident. Only
JAVITS has knowledge of any surveillance or whether their insurance company was aware of
the accident, but they knew that JAVITS labor was responsible for the transport, placement and
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assembly of the swing chair/table and they knew that BALLAS was injured. It was therefore
incumbent on JAVITS to conduct any further investigation.
50. Finally, one year and ninety days from the date of the accident has not elapsed,
which is another critical factor considered by the courts.
WHEREFORE, it is respectfully requested that this Court grant the petitioners:
i. Leave to serve a late Notice of Claim pursuant to General Municipal Law §50-e(5) and
deem the proposed Notice of Claim annexed hereto served, nunc pro tunc;
ii. Deem the annexed Summons and Complaint filed and served upon JAVITS; and
iii. together with such other and further relief as this Court may seem just and proper.
Dated: New York, New York
April 25, 2023
______________________________
ROSA M. FEENEY
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CERTIFICATION UNDER UNIFORM CIVIL RULE 202.8-B
I, Rosa M. Feeney, an attorney duly admitted to practice law before the courts of the State of
New York, hereby certify the following meet the word-count limits under the Uniform Civil Rules
202.8-b:
Petitioner’s Reply Affirmation in support of Petitione’s Order to Show Cause contains 3665
words.
Pursuant to the Rules, the word count excludes the caption and signature block. No table of
contents or table of authorities is attached.
In preparing this certification, I have relied on the computer-generated word count from Word
which was used to prepare the above materials.
Dated: New York, New York
April 25, 2023
______________________________
ROSA M. FEENEY
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FILED: NEW YORK COUNTY CLERK 04/25/2023 03:09 PM INDEX NO. 152786/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/25/2023 SUPREME COURT OF THE STATE OF NEW YORK Index #:152786/2023 COUNTY OF NEW YORK x KRISTIN BALLAS, Petitioner, REPLY AFFIRMATION -against- NEW YORK CONVENTION CENTER OPERATING CORPORATION, d/b/a THE JACOB K. JAVITS CONVENTION CENTER, Respondents. x ROSA M. FEENEY, an attorney duly admitted to practice law in the State of New York, hereby affirms the following under the penalties of perjury: 1. I am a partner of the firm of Smiley & Smiley, LLP, attorneys for the Petitioner, KRISTIN BALLAS (hereinafter “BALLAS”) and, as such, I am fully familiar with the facts and circumstances of this matter. 2. This affirmation is respectfully submitted in reply to the opposition of NEW YORK CONVENTION CENTER OPERATING CORPORATION, d/b/a THE JACOB K. JAVITS CONVENTION CENTER (hereinafter “JAVITS”) and in further support of the application by the Petitioner for leave to serve a late Notice of Claim pursuant to General Municipal Law §50-e (5) and Public Authorities Law § 2570, upon the Respondents, and to have the proposed Notice of Claim, and the Summons and Complaint, deemed filed and served nunc pro tunc. 3. Based upon the above, Petitioner respectfully requests that this court permit Petitioner to file, and deem served, nunc pro tunc, the annexed Notice of Claim, and Summons and Complaint against JAVITS, upon consideration of all the facts as contained herein. 1 of 14 FILED: NEW YORK COUNTY CLERK 04/25/2023 03:09 PM INDEX NO. 152786/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/25/2023 JAVITS HAD ACTUAL KNOWLEDGE OF THE ESSENTIAL FACTS CONSTITUTING THE CLAIM 4. There is no dispute that the question of whether actual knowledge was timely acquired is considered to be the “most important factor” when the court is considering whether to permit the late filing of a Notice of Claim. Matter of Catania v. City of NY, 188 A.D.3d 1041, 1042 (2d Dept. 2020); See also Matter of Miskin v. City of NY, 175 A.D.3d 684, 685 (2d Dept. 2019); Melcer v. City of NY, 185 AD3d 672, 674 (2d Dept. 2020) Matter of Nunez v. Vil. of Rockville Ctr., 176 AD3d 1211, 1216 (2d Dept. 2019); See Affirmation in Opposition at paragraph 8. 5. Although JAVITS maintains that it did not know about Petitioner's claim, it offers no evidence to contradict Petitioner's account that JAVITS, through their agent and security personnel acquired knowledge of the essential facts of his claim on the day of BALLAS’ injury and again shortly thereafter by BALLAS herself and then by counsel sending preservation letters. See Sproule v. New York Convention Ctr. Operating Corp., 180 A.D.3d 496, 497, 120 N.Y.S.3d 5 (1st Dep't 2020); Williams v New York Convention Ctr. Operating Corp., 2020 N.Y. Misc. LEXIS 5263, 2020 NY Slip Op 32849(U) (NY County 2020). 6. The following facts are indisputable: • On the date of the accident, KRISTIN BALLAS attended a technology conference within the JAVITS facility, hosted and controlled by JAVITS (See Affidavit of KRISTIN BALLAS, annexed as Exhibit “D” to the Petition. Hereinafter “BALLAS Affidavit.”) • On the date of the accident, it was reported to JAVITS that “the swing set toppled over causing pt to hit the side of head/face.” (See Accident Report annexed as Exhibit “E” to Petition. Hereinafter “Accident Report.”) 2 2 of 14 FILED: NEW YORK COUNTY CLERK 04/25/2023 03:09 PM INDEX NO. 152786/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/25/2023 • On the date of the accident JAVITS security personnel were called to the scene of the accident. (See Accident Report and BALLAS Affidavit) • On the date of the accident, BALLAS was taken to the JAVITS medical office on the 4th floor of the JAVITS Center. (BALLAS Affidavit and “Call Location” identified in the Accident Report) • On the date of the accident, BALLAS was tended to by JAVITS medical and security personnel. (See Accident Report) • On the date of the accident, JAVITS became aware of BALLAS’ name, address, contact information and physical complaints. They asked and documented her past medical history and took her vital signs. (See Accident Report) • BALLAS was experiencing excruciating headaches and vomiting from being struck in the head and body by the swing chair/table. (BALLAS Affidavit) • JAVITS Accident Report indicates that the “Chief Complaint” was “hit head.” • JAVITS Accident Report indicates that BALLAS stated “pain in head 6/10” • JAVITS Accident Report indicates “Pt having panic attack as father recently passed away due to TBI.” • JAVITS Accident Report indicates “ice pack given for head.” • JAVITS Accident Report indicates “911 was called for trp to hospital.” • JAVITS Accident Report identifies JAVITS security officer, “Shield #2513.” • JAVITS Accident Report indicates “Pt Care transferred to 81C2 by Shield # 2513.” • On June 2, 2022, KRISTEN BALLAS spoke with JAVITS security personnel, who identified himself as “Dan,” requesting a copy of JAVITS Accident Report.” (BALLAS Affidavit) 3 3 of 14 FILED: NEW YORK COUNTY CLERK 04/25/2023 03:09 PM INDEX NO. 152786/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/25/2023 • On September 8, 2022, correspondence was sent to JAVITS again advising that BALLAS had sustained serious personal injuries while attending a conference in their facility and demanding that they preserve all evidence. 7. JAVITS characterization that KRISTIN BALLAS simply “fell from an indoor chair/table” is refuted by their own Accident Report, which clearly indicates that BALLAS was struck in the head and body by an enormous swing table/chair that toppled on her. 8. Furthermore, she was treated by JAVITS personnel, who took her medical history, vital signs and had her transferred to the hospital by ambulance. 9. It is not possible for JAVITS to argue they did not have notice of this accident on the day it occurred and again after the accident. 10. Additionally, as set forth more fully below, the argument that JAVITS had no knowledge of the facts that underlie the legal theories of liability, is belied by their own accident report and evidence, which was recently acquired by our office, which was within the exclusive control of JAVITS. 11. As previously indicated, this office had commenced an action against JAVITS in Federal Court, which action has been discontinued without prejudice, in order to seek the necessary permission from this court to file the late notice of claim against JAVITS. (See Exhibit “C” to Petition.) 12. The Federal Court action was also commenced against Greenhouse Software, Inc. (“hereinafter “Greenhouse”), which is being represented by the same attorneys representing JAVITS herein. Greenhouse was a sponsor for the Greenhouse Open event which was attended 4 4 of 14 FILED: NEW YORK COUNTY CLERK 04/25/2023 03:09 PM INDEX NO. 152786/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/25/2023 by BALLAS. Presumably, JAVITS is being defended as an additional insured under the Greenhouse insurance policy, which was procured for the event. 13. As part of that litigation, our office was recently provided with a “Licensing Agreement” between JAVITS and Greenhouse dated June 8, 2021, pertinent parts which are annexed hereto as Exhibit “H.” 14. This Licensing Agreement has become relevant here, since JAVITS claims that it had no notice of the facts that underlie the legal theory or theories on which liability could be predicated, however this Licensing Agreement demonstrates that JAVITS is and was aware, or should have been aware, of the legal basis for liability. 15. The Licensing Agreement, which is between JAVITS as the Licensor and Greenhouse as the Licensee provides in pertinent part as follows: 15: EXCLUSIVE LABOR. A. Licensor reserves the exclusive right to supply the labor utilized within the Center to perform any of the services described in Exhibit A to this Agreement, which is incorporated herein by reference, and Licensee agrees that neither Licensee nor any contractor employed by Licensee shall utilize any other labor to perform such services. Such labor shall be provided on written order at the established rates of Licensor for such labor and shall be utilized pursuant to the rules set forth in Exhibit A. Licensee agrees to comply with the Rules set forth in Exhibit A. EXHIBIT A WORK RULES I. Contractor and exhibitor must hire Javits labor to perform the following tasks: A. Loading, unloading and moving exhibitor freight materials and machinery. Loading and unloading decorating contractors' equipment to and from a marshalling point on the exhibit show floor. Exceptions are exhibitor "hand carry" materials. Exhibitor hand-carry items may be exempted from this requirement pursuant to more detailed rules issued by Licensor from time to time. 5 5 of 14 FILED: NEW YORK COUNTY CLERK 04/25/2023 03:09 PM INDEX NO. 152786/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/25/2023 B. Crating and recrating, and all work involved in the erection and dismantling of exhibits, displays, backgrounds and booths; all work requiring the use of bolts and screws or nail fasteners; tying, hanging or nailing, taping of flags, banners, signs, tile and rug-laying, skidding and reskidding and turntables; handling and delivery of furniture, carpeting, modular interlocking booth systems and other contractor owned and leased equipment; pad wrapping, protection work, ramp protection; and installing draperies, including but not limited to wall draperies, table skirting, booth equipment draperies, flag and bunting and party decorations. "Pop-up" booth may be exempted from this requirement pursuant to more detailed rules issued by Licensor from time to time. 16. Pursuant to the Licensing Agreement, JAVITS labor was required to be utilized to load, unload, move, decorate, erect any exhibits in the facility, other than “hand carry” materials. This enormous swing table/chair would have therefore been loaded, unloaded, moved, erected, decorated and probably installed and/or assembled by JAVITS itself, who had the legal obligation to make sure that all exhibits were properly installed, assembled and safe to use by its patrons. The swing table/chair was clearly not a “hand carry” item and therefore JAVITS personnel or labor must have moved this display and set it up for use by patrons of the exhibition. 17. For the court’s reference, attached as Exhibit “I” hereto is an image of KRISTIN BALLAS sitting on the “Swing Table/Chair”, seconds before the accident occurred. This apparatus is clearly not a “hand carry” item and required several people to lift the swing chair/table off of BALLAS after it toppled on her. 18. Therefore, in addition to the general legal obligation of a host to provide a safe place for its patrons, it is glaringly obvious, that the additional theory of liability against JAVITS is that they were involved in the loading, unloading, moving, decorating, erection, installation, assembly etc., which are the facts that underlie the theory of liability against JAVITS. This Licensing Agreement is and was within JAVITS exclusive knowledge and control and it cannot 6 6 of 14 FILED: NEW YORK COUNTY CLERK 04/25/2023 03:09 PM INDEX NO. 152786/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/25/2023 be heard to argue it had no idea how it could be held liable when, when JAVITS laborers were required to set up this display within the facility, which then toppled over injuring an innocent patron of the event. The fact that JAVITS laborers may have been responsible for this accident is a compelling factor in permitting the late filing of a Notice of Claim. Sproule, supra. 19. Furthermore, it seems implausible, that this large display topples on top of a patron in the JAVITS facility; that the patron is seen and treated by the JAVITS medical office and transported to the hospital and JAVITS conducts no other investigation or notifies its insurance carrier. Furthermore, any surveillance video of this event is within the exclusive knowledge and control of JAVITS. Again, this information is exclusively within JAVITS control and JAVITS should not be permitted to claim ignorance or prejudice from its own inaction or claimed ignorance of this accident. See Sproule, supra. and Williams, supra. 20. In Williams, supra., again, a case against JAVITS, the court found that where an accident report was prepared, that it is highly unlikely that JAVITS did not acquire the essential facts of the claim. 21. Additionally, JAVITS has not submitted an Affidavit from anyone with personal knowledge claiming they had no knowledge of the accident or possible basis for liability. The unsupported statement that JAVITS “may have learned that a convention patron was not being careful while sitting on the swing and caused it to become unbalance,” is completely unsubstantiated and unsupported by any evidence and should be disregarded by the court. 22. In the context of summary judgment, it is well settled that the failure to submit an affidavit of a person who has personal knowledge of the facts is detrimental to opposing a motion. Zuckerman v City of New York, 49 NY2d 557 (1980). Conclusory allegations, bold assertions, or speculation are simply insufficient to successfully oppose a motion for summary judgment. 7 7 of 14 FILED: NEW YORK COUNTY CLERK 04/25/2023 03:09 PM INDEX NO. 152786/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/25/2023 Zuckerman, supra. A shadowy semblance of an issue is not enough to defeat a motion for summary judgment. Lo Breglio v. Marks, 481 NYS2d 352 (1st Dept. 1984) 23. BALLAS has set forth a prima facie case of actual notice and an attorney affirmation, in opposition is insufficient to establish lack of knowledge and prejudice by the delay in filing the late Notice of Claim. 24. McFarland v City of New York, 169 AD3d 687 (2nd Dept 2019), cited by JAVITS is distinguishable from the facts of this case. In McFarland, supra., an “unusual occurrence” report was filed after a plaintiff fell on the floor of a DSNY garage and had a seizure. The report made no reference to the alleged presence of a greasy substance on the floor or that the petitioner slipped and fell on any substance which was the alleged cause of the injury. 25. In this case, the Accident Report was very clear that a swing table/chair, that was within the JAVITS facility, fell on top of BALLAS and JAVITS had the exclusive knowledge that its own labor had installed and/or assembled the swing table/chair which toppled over. 26. Furthermore, Matter of Rivera v NYCHA, 25 AD3d 450 (1st Dept. 2006) is also inapplicable. That case involved the filing of a Police Accident Report for an assault that occurred in a NYCHA building. Here, the report was prepared by JAVITS itself, by its medical personnel and the security personnel. This was not a report by an outside agency or the plaintiff herself. 27. As set forth by the court in Matter of Orozco v City of NY, 200 AD3d 559, 562 (1st Dept 2021), "the existence of reports in its own files concerning those facts and circumstances [giving rise to a claim] is the functional equivalent of an investigation." While the Orozco case involved false arrest, the key takeaway from the Orozco, supra. matter is the court’s statement that “mere existence of a report under certain circumstances might be insufficient to impute 8 8 of 14 FILED: NEW YORK COUNTY CLERK 04/25/2023 03:09 PM INDEX NO. 152786/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/25/2023 actual knowledge, here those reports were generated by those very persons … whose conduct forms the basis of petitioner's suit.” 28. Further, the matter of Oliveri v City of New York, 270 AD2d 5 (1st Dept 2000), is also inapplicable, since that again involved a police accident report and involved the request to amend the statement of injury from a property damage claim only to include a claim for personal injury. 29. Furthermore, Walker v NYC Transit Auth, 266 AD2d 55 (1st Dept 1999), again involved a police aided report and an employee’s own report. 30. Here JAVITS itself created the report and again knew or should have known that it could be held liable when a patron of an event within the facility has an apparatus fall on top of her causing documented injury. Furthermore, JAVITS had the exclusive knowledge that it had control of or should have had control of, the loading, unloading transporting, installation and assembly of the swing/table chair. 31. Finally, while the Licensing Agreement is included for the first time in this Reply, it has become necessary, since JAVITS, via attorney affirmation, raises for the first time in its opposition, that it had no knowledge of the facts that underlie the plaintiff’s legal theory. Furthermore, this evidence was within the exclusive possession and control of JAVITS. 32. As stated by the court in Santos Alas v Republic Natl. Holding Corp., 2022 NY Slip Op 33531[U], (NY County 2022): The function of reply papers is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds [or evidence] for the motion" (Kennelly v Mobius Realty Holdings LLC, 33 AD3d 380, 381, 822 N.Y.S.2d 264 (1st Dept 2006). "This rule, however, is not inflexible, and a court, in the exercise of its discretion, may consider a claim or evidence offered for the first time in reply where the offering party's adversaries responded to the newly presented claim or evidence." Here, while the affidavit submitted in Ardito's reply does not concern an argument made by 9 9 of 14 FILED: NEW YORK COUNTY CLERK 04/25/2023 03:09 PM INDEX NO. 152786/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/25/2023 plaintiff in opposition, plaintiff was given an opportunity to file a surreply addressing the substantive points raised in the reply, including the principal's statement that Ardito did not receive notice of the suit until after the motion for default judgment was decided (see Gastaldi v Chen, 56 AD3d 420, 420, 866 N.Y.S.2d 750 (2d Dept 2008). 33. JAVITS claim that they did not have knowledge of the facts that underlie the legal theory compel the production of their own contract and internal policy which require all licensees to use JAVITS labor. This is a critical fact, which Petitioner could not have known, and which solidifies the fact that the JAVITS did have knowledge of the facts that underlie the legal theory. 34. Further, if this court believes that the submission of this Licensing Agreement was not required to be produced because of an argument made by JAVITS, then the court can grant JAVITS an opportunity to submit a surreply. 35. Therefore, based upon the above it is evident that Petitioner has established the “most important factor” of actual knowledge by JAVITS of the accident and the facts that underlie the Petitioner’s legal theory and the Petition should be granted. JAVITS HAS FAILED TO ESTABLISH SUBSTANTIAL PREJUDICE 36. Conspicuously absent from JAVITS opposition is any evidentiary showing that it will be substantially prejudiced by the delay in filing a notice of claim. While Petitioner bears the burden of demonstrating it has “some evidence or plausible argument” that the Respondent is not “substantially prejudiced if late notice were allowed,” the Respondent must set forth “a particularized evidentiary showing that it will be substantially prejudiced.” Matter of Joseph v City of New York, 176 NYS3d 69 (2nd Dept 2022). JAVITS has not done so here. 37. Permitting a late Notice of Claim will not prejudice JAVITS in maintaining a defense on the merits due to the fact that they had actual notice of the facts in question on the 10 10 of 14 FILED: NEW YORK COUNTY CLERK 04/25/2023 03:09 PM INDEX NO. 152786/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/25/2023 date of the accident. In Matter of Beary v. City of Rye, 406 N.Y.S.2d 9 (1978) the Court of Appeals held that “actual knowledge of the facts... makes it unlikely that prejudice will flow from a delay in filing.” 38. Having conducted an investigation into this accident, and/or having had the opportunity to do so, JAVITS cannot make a good faith argument of prejudice. 39. Furthermore, the personal injury case which has been filed in Federal Court has had no discovery, nor discovery orders set by the Court. The Federal Court Judge was made aware that we were filing this application with the court and that an additional party was being named to the Federal Court Action and therefore has extended the date for the Preliminary Scheduling Conference until the additional party has answered. 40. This office and JAVITS counsel already discussed the strategy that if this court grants the application to file the Notice of Claim, that we would make an application to the Federal Court to remove this action against JAVITS to Federal court to join the action with the pending case against Greenhouse. 41. Furthermore, JAVITS is being represented by the same counsel that represents Greenhouse in the Federal Court action and therefore there can be no prejudice demonstrated. 42. The passage of time alone is insufficient to establish prejudice. Rodriguez v. City of New York, 172 A.D.3d 556, 557, 101 N.Y.S.3d 303 (1st Dep't 2019). 43. Therefore, there is no arguable prejudice to JAVITS. BALLAS HAS ESTABLISHED REASONABLE EXCUSE FOR THE DELAY 44. Importantly, there is no dispute, that “The presence or absence of any one factor, is not determinative.” Matter of Thomas v. City of New York,118 A.D.3d 537, 538, 988 N.Y.S.2d 11 11 of 14 FILED: NEW YORK COUNTY CLERK 04/25/2023 03:09 PM INDEX NO. 152786/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/25/2023 152 (1st Dept. 2014); see, Matter of Farrell v. City of New York, 191 AD2d 698 ( 2nd Dept. 1993); Matter of Charles v. New York City Health & Hospitals Corp., 166 AD2nd 526 (2nd Dept. 1990); General Municipal Law §50-e, McKinney’s Consolidated Laws of New York. 45. In this case KRISTIN BALLAS was not aware that JAVITS was an entity subject to the Notice of Claim rules. 46. While it is understood that ignorance of the requirement to serve a Notice of Claim is not an excuse, it is not apparent that JAVITS is a municipal entity requiring the serving of a Notice of Claim. There is no municipal title, such as City, Town or State attached to the name and it is understandable how a lay person would have no idea that JAVITS was required to be served. 47. Furthermore, as previously indicated, and set forth more fully above, JAVITS was aware of the accident on the date it occurred and BALLAS called just a few days after the accident asking for a copy of the Accident Report. The notice was well within the 90-days from the date of the accident. 48. Furthermore, preservation letters were sent by counsel within 106 days from the accident and a Federal Court action was commenced within six months of the accident. 49. In Sproule, supra., a case against JAVITS, although the Petitioner failed to set forth a reasonable excuse for the delay in filing a Notice of Claim, the First Department specifically noted that a JAVITS laborer operated a lift that injured the plaintiff. The court also noted that there was surveillance film, and the insurance company was notified of the accident. Only JAVITS has knowledge of any surveillance or whether their insurance company was aware of the accident, but they knew that JAVITS labor was responsible for the transport, placement and 12 12 of 14 FILED: NEW YORK COUNTY CLERK 04/25/2023 03:09 PM INDEX NO. 152786/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/25/2023 assembly of the swing chair/table and they knew that BALLAS was injured. It was therefore incumbent on JAVITS to conduct any further investigation. 50. Finally, one year and ninety days from the date of the accident has not elapsed, which is another critical factor considered by the courts. WHEREFORE, it is respectfully requested that this Court grant the petitioners: i. Leave to serve a late Notice of Claim pursuant to General Municipal Law §50-e(5) and deem the proposed Notice of Claim annexed hereto served, nunc pro tunc; ii. Deem the annexed Summons and Complaint filed and served upon JAVITS; and iii. together with such other and further relief as this Court may seem just and proper. Dated: New York, New York April 25, 2023 ______________________________ ROSA M. FEENEY 13 13 of 14 FILED: NEW YORK COUNTY CLERK 04/25/2023 03:09 PM INDEX NO. 152786/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/25/2023 CERTIFICATION UNDER UNIFORM CIVIL RULE 202.8-B I, Rosa M. Feeney, an attorney duly admitted to practice law before the courts of the State of New York, hereby certify the following meet the word-count limits under the Uniform Civil Rules 202.8-b: Petitioner’s Reply Affirmation in support of Petitione’s Order to Show Cause contains 3665 words. Pursuant to the Rules, the word count excludes the caption and signature block. No table of contents or table of authorities is attached. In preparing this certification, I have relied on the computer-generated word count from Word which was used to prepare the above materials. Dated: New York, New York April 25, 2023 ______________________________ ROSA M. FEENEY 14 14 of 14