Preview
FILED: NEW YORK COUNTY CLERK 10/25/2018 09:39 AM INDEX NO. 151650/2014
NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 10/25/2018
SUPREME COURT OF THE STATE OF NEWWORK
COUNTY OF NEW YORK
--------------------------- --- X Index No.: 151650/2014
SHELLEY KARTEN and MARK KARTEN,
Plaintiffs, REPLY AFFIRMATION
IN FURTHER SUPPORT
-against- OF SUMMARY
JUDGMENT
500-512 SEVENTH AVENUE LP, LLC.,
NEWMARK GRUBB KNIGHT FRANK,
CONSOLIDATED EDISON COMPANY OF . . . .
NEW YORK, INC., GIBRALTAR CONTRACTING,
INC. and G&E REAL ESTATE MANAGEMENT
SERVICES, INC.,
Defendants.
------ -------------------- X
CONSOLIDATED EDISON COMPANY OF
NEW YORK, INC.,
Third-Party Index No.:
Third-Party Plaintiff, 595637/2015
-against-
NAMOW, INC.,
Third-Party Defendant.
BARI R. SHINBAUM, ·an attorney duly admitted to practice law before the Courts of
the State of New York hereby affirms the following to be true under the penalties of perjury:
1. I am associated with the Law Offices of WEISER & McCARTHY, attorneys of
record for the Defendants, 500-512 Seventh Avenue and Newmark Grubb Knight Frank
(hereinafter, collectively referred to as "500-512") and as such am fully familiar with the facts
and circumstances of the instant matter by virtue of a review of the file maintained by this office.
2. This Affirmation is respectfully submitted in reply to the plaintiff's affirmation in
opposition to and in further support of the within Motion for an Order, pursuant to CPLR § 3212
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dismissing all claims and cross-claims against Defendants, 500-512 Seventh Avenue and
Newmark Grubb Knight Frank (hereinafter, collectively referred to as "500-512").
T_he Instant Matter Should Be Decided on Its Merits
3. Plaintiff's opposition fails to raise of fact to defeat 500-
any issue(s) Defendants,
512 Seventh Avenue and Newmark Grubb Knight Frank's motion for summary dismissal in fact
and law.
4. Plaintiff's contention that "500-512 Seventh Avenue is precluded from producing
trial"
evidence on liabili,ty at as a consequence of not producing a witness during discovery is
factually incorrect based upon my review of the Karten file mairdained in the ordinary and
customary course of business by the Law Office of Weiser & McCarthy as well as in addition to
the official New York State Court Electronic Filing System (hereinafter, "NYSCEF") Docket.
See, Plaintiff's Motion to Strike Defendants Answer, NYSCEF filing docket numbers 41-52,
and NYSCEF filing docket numbers 54-56.
5. By way of brief history, StephaniÊ Ròbbins was an attorney that was employed by
Weiser & McCarthy and assigned to defend DefÁndants, 500-512 Seventh Avenue and Newmark
Grubb Knight Frank, from the time the suit was commenced up and through the time she passed
away on November 24, 2017. See, Ms. Robbins Obituary posted in the Staten Island Advance
attached hereto a Exhibit "1".
6. The official Court records reveal the fol.Iowing:
Defendants'
• Plaintiff moved to Strike Answer on May 3, 2017; See,
Plaintiff's Motion to Strike Defendants Answer, NYSCEF filing docket
.
numbers 41-5È ;
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..
Robbins'
• Ms. opposition was submitted on June 23, 2017. The papers
instructed that Albert Voce is directed to on behalf of 500-
specifically testify
512 Seventh Avenue and Newmark Grubb Knight Frank; See, NYSCEF
filing docket numbers 54-56.
• The factual record confirms Albert Voce was produced and responded to
questions pertaining to 500-512 Seventh Avenue and Newmark Grubb Knight
"I"
Frank. See, Court Order dated November 1, 2017 and Exhibit as
attached to your affirmant's Affirmation in Support of the instant Motion
for Summary Judgment (hereinafter referred to as "the Shinbaum
Affirmation".
7. In 1 ght of the above, it is not clear why there is an order "precluding 500-512
trial."
Seventh Avenue to provide evidence reg rding liability at In any event, even providing
plaintiff every benefit of the doubt that 500-512 is precluded from offering testimony on liability
at trial they are not precluded from successfully moving for summary judgment based upon
controlling law established by the First Department.
8. In Mendoza v. Highpoint Assoc., ÏX LLC, (83 A.D.3d 1, 919 N.Y.S.2d 129, 2011
N.Y. App. Div. LEXIS 1682, 2011 N.Y. Slip O 1 19), the First Department determined there is
"no legal impediment to examining the merits of defendant's motion for summary judgment ...
[despite] the fact that defendant was precluded from presenting evidence at trial on liability
judgment."
did not affect itsright to move for summary
9. In so reasoning, the Court acknowledged a "defendant's preclusion from
introducing evidence at trial does not autSmatically entitle a plaintiff to summary judgment".
ld. Northway Eng'g v. Felix Indus., 77 N.Y.2d 332, 569 N.E.2d 437, 567 N.Y.S.2d 634 [1991];
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Rosario v. Humphreys & 301 A.D.2d. 752 N.Y.S.2d 865 [2003]). Indeed,
Harding, 406,
a preclusion order does not relieve the plaintiff of the burden of proving its case. Northway, 77
N.Y.2d at 337; Murphy v. Herbert Constr., Co., 297 A.D.2d 503, 747 N.Y.S.2d 439
[2002]; Israel v. Drei Corp., 5 A.D.2d 987, 173 N.Y.S.2d 360 [1958]); nor does
itpreclude affirmative defenses. Id. Ramos ·v Shendell Realty Group, Inc., 8 A.D.3d 41, 777
N.Y.S.2d 644 [2004] [affirmative defense of comparative negligence still a viable defense
despite the preclusion order] ; Mendez v. Queens Plumbing Supply, Inc., 12 Misc 3d 1064, 820
N.Y.S.2d 707 [Sup Ct, Bronx County 2006] [same] ; see also, Moskowitz v. Garlock, 23 A.D.2d
943, 259 N.Y.S.2d 1003 [1965]).
10. The First Department further explained that a "preclusion order preventing
evidence at trial on liability is unlike the striking of an'answer, which effectively resolves a claim
defendant."
against the non-disclosing (see, Rokina Opt. Co. v. Camera King, 63 N.Y.2d 728,
469 N.E.2d 518, 480 N.Y.S.2d 197 [1984]).
11. In Mendoza, supra, the Court continued to reason that "summary judgment should
be granted where Èhe non-disclosing defendant can establish entitlement to such relief despite
liability."
the preclusion order barring it from offering its own affirmative evidence as to The
Court referred to its ruling in Murphy v. Herbert Constr. Co. (297 A.D.2d 503, 747 N.Y.S.2d
439 [2002]) wherein the plaintiff moved for suminary judgment on liability pursuant to the Labor
Law. The defendant subcontractor cross-moved for summary judgment dismissal of the claims
under Labor Law alleged. The irstDepartment reversed the lower court's ruling and "granted
the non-disclosing defendant summary judgment even though the motion court had precluded it
liability."
from presenting evidence at trialon
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Affirmation"
12. As detailed in the "Shinbaum the evidence is clear that
fully
neither Defendant 500-512 Seventh Avenue nor Newmark Grubb Knight created the defect
and/or has responsibility to repair the complained of defect. They also did use the complaiñed of
"F"
location in a special manner for their own benefit. See, Exhibit and all other Exhibits
respectively attached to the instant Motion for Summary Judgment.
13. Plaintiff also testified she allegedly fell because the concrete directly adjacent to
City-grate" "uneven" "filled"
the "New York was and with black concrete that consisted of a
gravel." "F" "G"
"pebble-type texture that resembled See, Exhibit & Exhibit of the moving
papers. Given the plaintiff's description of what caused her to allegedly fall,coupled with the
correspondence sent by an agent on behalf of co-defendant to Defendants 500-512 Seventh
Avenue and/or Newmark Grubb Knight Frank, itis beyond pail to argue that Defendant 500-512
iSeventh Avenue and/or Newmark Grubb Knight Frank are liable in tort to plaintiff. Dispositive
proof is exemplified by the fact that neither Namow, nor Con Edison insinuate, argue, or
otherwise offer any evidence in their respective motion/opposition papers for summary judgment
to implicate Defendants, 500-512 Seventli Avenue and/or Newmark Grubb Knight Frank's
"M" "N"
liability. See, Exhibit "K"; Exhibit "L"; Exhibit and Exhibit of the moving
papers.
14. The evidentiary facts su tantiate the complaiñed of grate/vault is owned,
controlled and maintained by Con Edison. The Permits issued to Con Edison and authenticated
by Con Edison shows that itwas their responsibility to ensure the area was "safe by using a black
gravel like material until their outside vendor was able to perform a full restoration of the
sidewalk flag.
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• Plaintiff explained the area where she allegedly fell "did not look like a normal slab
of concrete; rather, it was black had pebbles in it that was covered over, which
gravel."
resembled the texture of See, Edhibit "G", pgs. 25 to 26 generally ; See
"N"
also, Exhibit of the instant moving papers marked at her deposition, which
purportedly depicts the location of the black top/gravel-like filling that she
claims is the reason she fell - pgs. 75-76.
• Ms. Campoverde, the record search and testifier for Con Edison confirmed all 3
permits (the opeñiñg ticket, a paying order for the same location as well as the DOT
permit the Corrective Action Notice and Violation by the City of New York) were
issued to Con Edison since they are the entity respcasible to inspect, maintain and
repair the sidewalk in the ar Ä plaintiff claims she fell prior to and during the
applicable time period. See, Exhibit "K", pgs. 26-27 generally of the instant .-etien
papers.
• Joseph Cirotti, the lead mechanic for Con Edison confirmed the herein-referenced
permits were issued to Con Edison for the complained of location to "fillin the open
safe." "M"
excavation with dirt and temporary bÎacktop to make it See, Exhibit pgs.
10-11; 14 & 25 of the instant motion papers. His supervisor would inspect the work
"M"
after itis completed. See, Exhibit pgs. 24-25.
• After he completes the work, Con Edison was responsible to assign the
temporary
opening ticket to an outside vendor that is used by Con Edison to "fully restore the
area." "M"
See, Exhibit pg. 15.
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k
• In connection with this permit, Mr. Cirotti did not speak with any representatives
from, or on behalf of 500-512 Seyenth Avenue and/or Newmark Grubb Knight. See,
Exhibit·"M"
pg. 29.
15. The exception to New York City Administrative Code §7-210 applied to the fact
at bar. 34 RCNY § 207 (B) provides that ov ners of covers or gratings on a street are responsible
for monitoring the condition of the covers and gratings and the area extending 12 inches from the
parameter of the hardware. Here, this evidence confirms the plaintiff alleges she fell as a result of
the work performed by Con Edison.
16. Again, the evidence is clear in that Con Edison is responsible to maintain, control,
inspect and repair the grate that allegedly caused plaintiff's accident.
• Mark Sullivan, who is a Planner/Field Technical Specialist for Con Edison. The email
exchanges confirm that Con Edison is solely respansible to inspect, maintain and
"I"
renair the location plaintiff claims she fell. See, Exhibit pgs. 9 & 10 and
"N"
Exhibit attached to the iÊstant moving papers.
• The representative on behalf of 500-512 Seventh Avenue and Newmark, Albert Voci,
testified that the above email was sent to him because the complained of condition
vault,"
"creawated about [Con Edison's] property, it was a sidewalk which was in the
"I"
location plaintiff claims her accident occurred. See, Exhibit pg. 10 & 11 of the
instant motion papers; See also, E2nibit "N".
• five months before the plaintiff's accident, Con Edison entered
Approximately (5)
into a contract with Namow (an outside vendor) to perform the sidewalk restoration
work at the location plaintiff allededly fell. As part of the contract, among other tasks,
Con Edison specifically directed Namow "to perform restoration work at various
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location."
sites, including the loss See ¶ 3-15 of the Svmmsq Judgment Motion
"E"
filed on behalf of Third Party Defendant Namow referring to Exhibit and
incorporated herein as reference to hold the same force and effect as if attached
hereto - NYSCEF document 91.
• In connection with this permit, lvir.Cirotti did not speak with any representatives
from, or on behalf of 500-512 Seventh Avenue and/or Newmark Grubb Knight. See,
"M"
Exhibit pg. 29 of the instant motion papers.
17. This Court should find as did the Mendoza Court that "[t]he application of the
of preclusion to a specific of evidence, as applied against a defendant should
remedy category
not be a device for precluding a defendant from challenging the sufficiency of the plaintiffs
evidence."
18. The Mendoza Court then acknowledged the fact that "courts have consistently
held that a defendant may establish its prima facie entitlement to judgment as a matter of law by
relying upon the plaintiffs evidence, including the plaintiffs own deposition, which may negate
liability."
(see e.g. Acheson v. Shepard, 27 A.D.3d 596, 811 N.Y.S.2d 781 [2006]; Wellington v.
Manmall, LLC, 70 .D.3d 401, 894 N.Y.S.2d 396 [2010]).
19. In fendoza, supra, the Ú urt further looked at the holding in DeSantis v.
Lessing's, Inc. (46 A.D.3d 742, 849 N.Y.S.2d 580 [2007]). The defendant established its prima
facie entitlement to judgmeñt as a matter of law by submitting the plaintiffs deposition
testimony, in which she was unable to explain what caused her to trip and fall. Similarly, in
Frank v. Time Equities (292 A.D.2d 186, 739 N.Y.S.2d 140 [2002]), this Court held that "[w]hile
. .
a defendant moving for summary judgment [in a slip-and-fall case] has the burden of
demonstrating entitlement to dismissal as a matter~of law, there is no need for a defendant to
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submit evidentiary?materials ...where the plaintiff failed to claim the existence of notice of the
condition"
(id. at 186). Thus, while Murphy arose in a different procedural context, its ruling
underscores the basic rule applicable here: that a defendant can prevail at the summary judgment
stage by challeñging the sufficiency of the plaintiffs evidence.
20. The Court then reiterated, it"cannot be seriously disputed that a preclusion Order
does not prevent a defendant from challenging a plaintiffs evidence at trial by moving for a
directed verdict at the end of the.plaintiffs.case on the ground that the latter has failed to make a
prima facie case. The Court continued by explaiifing "[i]t is also beyond cavil that a Motion for
Summary Judgment is the procedural equivalent of a trial (see, Crowley's Milk Co. v. Klein, 24
A.D.2d 920, 264 N.Y.S.2d 680 [1965]). In acknowledging such, the Court referred to CPLR
3212(b), which implicitly draws an analogy between the Motion for Summary Judgment and the
motion for a direc ed verdict made at ti-iai.In each instance, the Court is taking the case away
from the factfinder by determining that there is nothi g to try. Of course, the main difference is
that on a Summary Judgmcra Motion the Judge is asked to decide the issue on papers alone
while in a motion for a directed verdict, the Judge has the advantage of hearing live testimony.
WHEREFORE, given the overwhelming evidence described in the Shinbaum
Affirmation and this Reply it is respectfully r uested this Court grant summary judgment in
favor of 500-512 Seventh Avenue and Newmark Gibbb Knight Frank, together with such other
and further relief as it deems just and proper.
Dated: New York, New York
October 25 2018
Bari R. Shinbaun(
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FILED: NEW YORK COUNTY CLERK 10/25/2018 09:39 AM INDEX NO. 151650/2014 NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 10/25/2018 SUPREME COURT OF THE STATE OF NEWWORK COUNTY OF NEW YORK --------------------------- --- X Index No.: 151650/2014 SHELLEY KARTEN and MARK KARTEN, Plaintiffs, REPLY AFFIRMATION IN FURTHER SUPPORT -against- OF SUMMARY JUDGMENT 500-512 SEVENTH AVENUE LP, LLC., NEWMARK GRUBB KNIGHT FRANK, CONSOLIDATED EDISON COMPANY OF . . . . NEW YORK, INC., GIBRALTAR CONTRACTING, INC. and G&E REAL ESTATE MANAGEMENT SERVICES, INC., Defendants. ------ -------------------- X CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Third-Party Index No.: Third-Party Plaintiff, 595637/2015 -against- NAMOW, INC., Third-Party Defendant. BARI R. SHINBAUM, ·an attorney duly admitted to practice law before the Courts of the State of New York hereby affirms the following to be true under the penalties of perjury: 1. I am associated with the Law Offices of WEISER & McCARTHY, attorneys of record for the Defendants, 500-512 Seventh Avenue and Newmark Grubb Knight Frank (hereinafter, collectively referred to as "500-512") and as such am fully familiar with the facts and circumstances of the instant matter by virtue of a review of the file maintained by this office. 2. This Affirmation is respectfully submitted in reply to the plaintiff's affirmation in opposition to and in further support of the within Motion for an Order, pursuant to CPLR § 3212 1 of 9 FILED: NEW YORK COUNTY CLERK 10/25/2018 09:39 AM INDEX NO. 151650/2014 NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 10/25/2018 dismissing all claims and cross-claims against Defendants, 500-512 Seventh Avenue and Newmark Grubb Knight Frank (hereinafter, collectively referred to as "500-512"). T_he Instant Matter Should Be Decided on Its Merits 3. Plaintiff's opposition fails to raise of fact to defeat 500- any issue(s) Defendants, 512 Seventh Avenue and Newmark Grubb Knight Frank's motion for summary dismissal in fact and law. 4. Plaintiff's contention that "500-512 Seventh Avenue is precluded from producing trial" evidence on liabili,ty at as a consequence of not producing a witness during discovery is factually incorrect based upon my review of the Karten file mairdained in the ordinary and customary course of business by the Law Office of Weiser & McCarthy as well as in addition to the official New York State Court Electronic Filing System (hereinafter, "NYSCEF") Docket. See, Plaintiff's Motion to Strike Defendants Answer, NYSCEF filing docket numbers 41-52, and NYSCEF filing docket numbers 54-56. 5. By way of brief history, StephaniÊ Ròbbins was an attorney that was employed by Weiser & McCarthy and assigned to defend DefÁndants, 500-512 Seventh Avenue and Newmark Grubb Knight Frank, from the time the suit was commenced up and through the time she passed away on November 24, 2017. See, Ms. Robbins Obituary posted in the Staten Island Advance attached hereto a Exhibit "1". 6. The official Court records reveal the fol.Iowing: Defendants' • Plaintiff moved to Strike Answer on May 3, 2017; See, Plaintiff's Motion to Strike Defendants Answer, NYSCEF filing docket . numbers 41-5È ; 2 of 9 FILED: NEW YORK COUNTY CLERK 10/25/2018 09:39 AM INDEX NO. 151650/2014 NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 10/25/2018 .. Robbins' • Ms. opposition was submitted on June 23, 2017. The papers instructed that Albert Voce is directed to on behalf of 500- specifically testify 512 Seventh Avenue and Newmark Grubb Knight Frank; See, NYSCEF filing docket numbers 54-56. • The factual record confirms Albert Voce was produced and responded to questions pertaining to 500-512 Seventh Avenue and Newmark Grubb Knight "I" Frank. See, Court Order dated November 1, 2017 and Exhibit as attached to your affirmant's Affirmation in Support of the instant Motion for Summary Judgment (hereinafter referred to as "the Shinbaum Affirmation". 7. In 1 ght of the above, it is not clear why there is an order "precluding 500-512 trial." Seventh Avenue to provide evidence reg rding liability at In any event, even providing plaintiff every benefit of the doubt that 500-512 is precluded from offering testimony on liability at trial they are not precluded from successfully moving for summary judgment based upon controlling law established by the First Department. 8. In Mendoza v. Highpoint Assoc., ÏX LLC, (83 A.D.3d 1, 919 N.Y.S.2d 129, 2011 N.Y. App. Div. LEXIS 1682, 2011 N.Y. Slip O 1 19), the First Department determined there is "no legal impediment to examining the merits of defendant's motion for summary judgment ... [despite] the fact that defendant was precluded from presenting evidence at trial on liability judgment." did not affect itsright to move for summary 9. In so reasoning, the Court acknowledged a "defendant's preclusion from introducing evidence at trial does not autSmatically entitle a plaintiff to summary judgment". ld. Northway Eng'g v. Felix Indus., 77 N.Y.2d 332, 569 N.E.2d 437, 567 N.Y.S.2d 634 [1991]; 3 of 9 FILED: NEW YORK COUNTY CLERK 10/25/2018 09:39 AM INDEX NO. 151650/2014 NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 10/25/2018 Rosario v. Humphreys & 301 A.D.2d. 752 N.Y.S.2d 865 [2003]). Indeed, Harding, 406, a preclusion order does not relieve the plaintiff of the burden of proving its case. Northway, 77 N.Y.2d at 337; Murphy v. Herbert Constr., Co., 297 A.D.2d 503, 747 N.Y.S.2d 439 [2002]; Israel v. Drei Corp., 5 A.D.2d 987, 173 N.Y.S.2d 360 [1958]); nor does itpreclude affirmative defenses. Id. Ramos ·v Shendell Realty Group, Inc., 8 A.D.3d 41, 777 N.Y.S.2d 644 [2004] [affirmative defense of comparative negligence still a viable defense despite the preclusion order] ; Mendez v. Queens Plumbing Supply, Inc., 12 Misc 3d 1064, 820 N.Y.S.2d 707 [Sup Ct, Bronx County 2006] [same] ; see also, Moskowitz v. Garlock, 23 A.D.2d 943, 259 N.Y.S.2d 1003 [1965]). 10. The First Department further explained that a "preclusion order preventing evidence at trial on liability is unlike the striking of an'answer, which effectively resolves a claim defendant." against the non-disclosing (see, Rokina Opt. Co. v. Camera King, 63 N.Y.2d 728, 469 N.E.2d 518, 480 N.Y.S.2d 197 [1984]). 11. In Mendoza, supra, the Court continued to reason that "summary judgment should be granted where Èhe non-disclosing defendant can establish entitlement to such relief despite liability." the preclusion order barring it from offering its own affirmative evidence as to The Court referred to its ruling in Murphy v. Herbert Constr. Co. (297 A.D.2d 503, 747 N.Y.S.2d 439 [2002]) wherein the plaintiff moved for suminary judgment on liability pursuant to the Labor Law. The defendant subcontractor cross-moved for summary judgment dismissal of the claims under Labor Law alleged. The irstDepartment reversed the lower court's ruling and "granted the non-disclosing defendant summary judgment even though the motion court had precluded it liability." from presenting evidence at trialon 4 of 9 FILED: NEW YORK COUNTY CLERK 10/25/2018 09:39 AM INDEX NO. 151650/2014 NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 10/25/2018 Affirmation" 12. As detailed in the "Shinbaum the evidence is clear that fully neither Defendant 500-512 Seventh Avenue nor Newmark Grubb Knight created the defect and/or has responsibility to repair the complained of defect. They also did use the complaiñed of "F" location in a special manner for their own benefit. See, Exhibit and all other Exhibits respectively attached to the instant Motion for Summary Judgment. 13. Plaintiff also testified she allegedly fell because the concrete directly adjacent to City-grate" "uneven" "filled" the "New York was and with black concrete that consisted of a gravel." "F" "G" "pebble-type texture that resembled See, Exhibit & Exhibit of the moving papers. Given the plaintiff's description of what caused her to allegedly fall,coupled with the correspondence sent by an agent on behalf of co-defendant to Defendants 500-512 Seventh Avenue and/or Newmark Grubb Knight Frank, itis beyond pail to argue that Defendant 500-512 iSeventh Avenue and/or Newmark Grubb Knight Frank are liable in tort to plaintiff. Dispositive proof is exemplified by the fact that neither Namow, nor Con Edison insinuate, argue, or otherwise offer any evidence in their respective motion/opposition papers for summary judgment to implicate Defendants, 500-512 Seventli Avenue and/or Newmark Grubb Knight Frank's "M" "N" liability. See, Exhibit "K"; Exhibit "L"; Exhibit and Exhibit of the moving papers. 14. The evidentiary facts su tantiate the complaiñed of grate/vault is owned, controlled and maintained by Con Edison. The Permits issued to Con Edison and authenticated by Con Edison shows that itwas their responsibility to ensure the area was "safe by using a black gravel like material until their outside vendor was able to perform a full restoration of the sidewalk flag. 5 of 9 FILED: NEW YORK COUNTY CLERK 10/25/2018 09:39 AM INDEX NO. 151650/2014 NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 10/25/2018 • Plaintiff explained the area where she allegedly fell "did not look like a normal slab of concrete; rather, it was black had pebbles in it that was covered over, which gravel." resembled the texture of See, Edhibit "G", pgs. 25 to 26 generally ; See "N" also, Exhibit of the instant moving papers marked at her deposition, which purportedly depicts the location of the black top/gravel-like filling that she claims is the reason she fell - pgs. 75-76. • Ms. Campoverde, the record search and testifier for Con Edison confirmed all 3 permits (the opeñiñg ticket, a paying order for the same location as well as the DOT permit the Corrective Action Notice and Violation by the City of New York) were issued to Con Edison since they are the entity respcasible to inspect, maintain and repair the sidewalk in the ar Ä plaintiff claims she fell prior to and during the applicable time period. See, Exhibit "K", pgs. 26-27 generally of the instant .-etien papers. • Joseph Cirotti, the lead mechanic for Con Edison confirmed the herein-referenced permits were issued to Con Edison for the complained of location to "fillin the open safe." "M" excavation with dirt and temporary bÎacktop to make it See, Exhibit pgs. 10-11; 14 & 25 of the instant motion papers. His supervisor would inspect the work "M" after itis completed. See, Exhibit pgs. 24-25. • After he completes the work, Con Edison was responsible to assign the temporary opening ticket to an outside vendor that is used by Con Edison to "fully restore the area." "M" See, Exhibit pg. 15. 6 of 9 FILED: NEW YORK COUNTY CLERK 10/25/2018 09:39 AM INDEX NO. 151650/2014 NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 10/25/2018 k • In connection with this permit, Mr. Cirotti did not speak with any representatives from, or on behalf of 500-512 Seyenth Avenue and/or Newmark Grubb Knight. See, Exhibit·"M" pg. 29. 15. The exception to New York City Administrative Code §7-210 applied to the fact at bar. 34 RCNY § 207 (B) provides that ov ners of covers or gratings on a street are responsible for monitoring the condition of the covers and gratings and the area extending 12 inches from the parameter of the hardware. Here, this evidence confirms the plaintiff alleges she fell as a result of the work performed by Con Edison. 16. Again, the evidence is clear in that Con Edison is responsible to maintain, control, inspect and repair the grate that allegedly caused plaintiff's accident. • Mark Sullivan, who is a Planner/Field Technical Specialist for Con Edison. The email exchanges confirm that Con Edison is solely respansible to inspect, maintain and "I" renair the location plaintiff claims she fell. See, Exhibit pgs. 9 & 10 and "N" Exhibit attached to the iÊstant moving papers. • The representative on behalf of 500-512 Seventh Avenue and Newmark, Albert Voci, testified that the above email was sent to him because the complained of condition vault," "creawated about [Con Edison's] property, it was a sidewalk which was in the "I" location plaintiff claims her accident occurred. See, Exhibit pg. 10 & 11 of the instant motion papers; See also, E2nibit "N". • five months before the plaintiff's accident, Con Edison entered Approximately (5) into a contract with Namow (an outside vendor) to perform the sidewalk restoration work at the location plaintiff allededly fell. As part of the contract, among other tasks, Con Edison specifically directed Namow "to perform restoration work at various 7 of 9 FILED: NEW YORK COUNTY CLERK 10/25/2018 09:39 AM INDEX NO. 151650/2014 NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 10/25/2018 location." sites, including the loss See ¶ 3-15 of the Svmmsq Judgment Motion "E" filed on behalf of Third Party Defendant Namow referring to Exhibit and incorporated herein as reference to hold the same force and effect as if attached hereto - NYSCEF document 91. • In connection with this permit, lvir.Cirotti did not speak with any representatives from, or on behalf of 500-512 Seventh Avenue and/or Newmark Grubb Knight. See, "M" Exhibit pg. 29 of the instant motion papers. 17. This Court should find as did the Mendoza Court that "[t]he application of the of preclusion to a specific of evidence, as applied against a defendant should remedy category not be a device for precluding a defendant from challenging the sufficiency of the plaintiffs evidence." 18. The Mendoza Court then acknowledged the fact that "courts have consistently held that a defendant may establish its prima facie entitlement to judgment as a matter of law by relying upon the plaintiffs evidence, including the plaintiffs own deposition, which may negate liability." (see e.g. Acheson v. Shepard, 27 A.D.3d 596, 811 N.Y.S.2d 781 [2006]; Wellington v. Manmall, LLC, 70 .D.3d 401, 894 N.Y.S.2d 396 [2010]). 19. In fendoza, supra, the Ú urt further looked at the holding in DeSantis v. Lessing's, Inc. (46 A.D.3d 742, 849 N.Y.S.2d 580 [2007]). The defendant established its prima facie entitlement to judgmeñt as a matter of law by submitting the plaintiffs deposition testimony, in which she was unable to explain what caused her to trip and fall. Similarly, in Frank v. Time Equities (292 A.D.2d 186, 739 N.Y.S.2d 140 [2002]), this Court held that "[w]hile . . a defendant moving for summary judgment [in a slip-and-fall case] has the burden of demonstrating entitlement to dismissal as a matter~of law, there is no need for a defendant to 8 of 9 FILED: NEW YORK COUNTY CLERK 10/25/2018 09:39 AM INDEX NO. 151650/2014 NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 10/25/2018 submit evidentiary?materials ...where the plaintiff failed to claim the existence of notice of the condition" (id. at 186). Thus, while Murphy arose in a different procedural context, its ruling underscores the basic rule applicable here: that a defendant can prevail at the summary judgment stage by challeñging the sufficiency of the plaintiffs evidence. 20. The Court then reiterated, it"cannot be seriously disputed that a preclusion Order does not prevent a defendant from challenging a plaintiffs evidence at trial by moving for a directed verdict at the end of the.plaintiffs.case on the ground that the latter has failed to make a prima facie case. The Court continued by explaiifing "[i]t is also beyond cavil that a Motion for Summary Judgment is the procedural equivalent of a trial (see, Crowley's Milk Co. v. Klein, 24 A.D.2d 920, 264 N.Y.S.2d 680 [1965]). In acknowledging such, the Court referred to CPLR 3212(b), which implicitly draws an analogy between the Motion for Summary Judgment and the motion for a direc ed verdict made at ti-iai.In each instance, the Court is taking the case away from the factfinder by determining that there is nothi g to try. Of course, the main difference is that on a Summary Judgmcra Motion the Judge is asked to decide the issue on papers alone while in a motion for a directed verdict, the Judge has the advantage of hearing live testimony. WHEREFORE, given the overwhelming evidence described in the Shinbaum Affirmation and this Reply it is respectfully r uested this Court grant summary judgment in favor of 500-512 Seventh Avenue and Newmark Gibbb Knight Frank, together with such other and further relief as it deems just and proper. Dated: New York, New York October 25 2018 Bari R. Shinbaun( 9 of 9