FILED: NEW YORK COUNTY CLERK 05/11/ :52 PM INDEX NO /2016 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 05/11/2018

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X X Index No /2016 TYRONE McGANN and MARY McGANN, Plaintiff, - against - AFFIRMATION IN SKYLIFT CONTRACTOR CORP., SKYLIFT MASTER RIGGERS CORP., ASRR CONSTRUCTION, LLC, THE SAPIR GROUP LLC and MADISON AVENUE, LLC Defendant X X SKYLIFT CONTRACTOR CORP. and SKYLIFT MASTER RIGGERS CORP., Third-Party Plaintiffs, SUPPORT - against - MARINE & INDUSTRIAL SUPPLY COMPANY, INC. d/b/a MARINE & INDUSTRIAL TESTING SOLUTIONS; MARINE & INDUSTRIAL TESTING SOLUTIONS; HANES SUPPLY, ThTP o ~m m~ ~~~mm~~ 1sa~w~ ~~~~~ 4~ ~~ 3 l~~ T) A T TT ~0 XXTTDK INC.; as successor-by-merger to and/or d/b/a PAUL'S WIRE ROPE & SLING and PAUL'S WIRE ROPE & SLING, Third-Party Defendants X MADISON AVENUE LLC and ASRR CONSTRUCTION LLC, Second Third-Party Plaintiffs, X - against - MARINE & INDUSTRIAL SUPPLY COMPANY, INC. d/b/a MARINE & INDUSTRIAL TESTING SOLUTIONS; MARINE & INDUSTRIAL TESTING SOLUTIONS; HANES SUPPLY, INC.; as successor-by-merger to and/or d/b/a PAUL'S WIRE ROPE & SLING and PAUL'S WIRE ROPE & SLING, Second Third-Party Defendants X X NIKOLAOS E. DIAMANTIS, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following to be true under penalty of perjury, pursuant to CPLR 2106: 1 of 7

2 1. I am associated with the Law Office of Charles J. Siegel, attorney of record for the Defendant THE SAPIR GROUP, LLC ("SAPIR"), and as such am fully familiar with the pleadings and proceedings heretofore had herein. 2. This Affirmation is submitted in support of SAPIR's motion to dismiss the Summons and Complaint herein in its entirety, and all cross-claims, pursuant to CPLR 3211(a)(1) and (7) and CPLR 3212 (a)(4) as against the defendant SAPIR; and for such other, further and/or different relief as this Court may deem just and proper. NATURE OF ACTION 3. Upon information and belief, plaintiff Tyrone McGann was involved in a work related incident on May 31, 2015 involving a crane accident at 261 Madison Avenue, New York, New York, when an HVAC chiller unit fell while being hoisted by the crane to the 30* floor at the subject premises. Further, upon information and belief one of the straps which was used to secure the HVAC chiller unit snapped while it was being hoisted which caused damage to the building and caused personal injuries to the plaintiff herein and several pedestrian on the street below MADISON AVENUE, LLC owned the subject premises and upon information and belief the crane was being operated by SKYLIFT CONTRACTOR CORP. at the time of the incident. Further, upon information and belief MARINE & INDUSTRIAL SUPPLY COMPANY, INC. allegedly manufactured the sling in question and PAUL'S WIRE ROPE & SLING was the retailer who sold the subject sling which snapped causing this accident. 2 of 7

3 PROCEEDURAL HISTORY AND RELEVANT FACTS 5. SAPIR was brought into this action by the service of a Summons and Complaint by plaintiffs on September 6, Issue was joined by service of an Answer upon plaintiffs' plaintiffs attorney on September 16, 2016, annexed hereto as Exhibit "A". 6. On or about December 6, 2016 a Consent to Change Attorney was e-filed with the court where Littleton Joyce Ughetta Park & Kelly, LLP was substituted as attorneys of record for Defendants Madison Avenue, LLC and ASRR Construction, LLC in place of, and instead of, Law Office of Charles J. Siegel, annexed hereto as Exhibit "B". 7. On or about October 12, 2017 Defendants Skylift Contractor, Corp. and Skylift Master Riggers, Corp. commenced an impleader action against Marine & Industrial Supply Company, Inc., d/b/a/ Marine & Industrial Testing Solutions; Marine & Industrial Testing Solutions; Hanes Supply, Inc., as successor-by-merger to and/or d/b/a Paul's Wire Rope & Sling and Paul's Wire Rope & Sling, by service of Third-Party Summons and Complaint, annexed hereto as Exhibit "C". Issue was joined by Marine & Industrial Supply Company, Inc., d/b/a/ Marine & Industrial Testing Solutions; Marine & Industrial Testing Solutions (Marine) on or about December 11, 2017 and by Hanes Supply, Inc. (Hanes) on or about December 14, Said pleadings are annexed hereto as Exhibit "D". 8. Defendants Madison Avenue, LLC and ASRR Construction, LLC commenced a second third-party action against Marine & Industrial Supply Company, Inc., d/b/a/ Marine & Industrial Testing Solutions; Marine & Industrial Testing Solutions; Hanes Supply, Inc., as successor-by-merger to and/or d/b/a Paul's Wire Rope & Sling and Paul's Wire Rope & Sling by service of their second third-party Summons and Complaint on or about March 2, 2018, annexed hereto as Exhibit "E". 3 of 7

4 Allegations in Plaintiffs' Complaint 9. In plaintiffs' summons and complaint it is alleged that SAPIR "owned" the premises known as and located at 261 Madison Avenue, New York, NY; SAPIR contracted with Skylift Contractor Corp. to perform work at the premise; SAPIR contracted with Skylift Master Riggers Corp to perform work at the premises; SAPIR controlled Skylift Master Riggers Corp.'s work; and SAPIR controlled Skylfit Contractor Corp.'s work.. (See Exhibit "A"). 10. Additionally, plaintiffs claim that SAPIR was negligent in the "ownership operation, management, construction, maintenance, supervisions and./or control of the premises and the work being performed at the premises. See id. 11. It is further alleged that SAPIR violated New York Labor Law 200, 240(1), and 241(6). Affidavit of Alex Sapir for THE SAPIR GROUP, LLC 12. As set forth in the annexed Affidavit of SAPIR's member Alex Sapir, SAPIR did not own the property in question, did not perform construction services or serve as a general contractor, and did not control, maintain, manage, supervise, inspect, or make any repairs in relation to this project. (See Affidavit of Alex Sapir attached here with as Exhibit "F"). 13. THE SAPIR GROUP, LLC never owned or had any ownership interest in the building 261 Madison Avenue, New York, NY at any time. Also, THE SAPIR GROUP, LLC never leased, managed, controlled, operated, and/or maintained the subject premises. Emphasis added. See id. 14. On May 31, 2015 the owner of 261 Madison Avenue, New York NY was Madison Avenue, LLC. See id. 4 of 7

5 15. At no time was THE SAPIR GROUP, LLC retained or responsible to perform any services relating to the work at the subject premise. THE SAPIR GROUP, LLC did not supervise, direct and/or control any work the plaintiff was performing at the time of his accident, nor any of the contractors or subcontractors involved with the subject work. THE SAPIR GROUP, LLC was not responsible for the means, methods, techniques and sequences of any construction work at the subject premises and never hired or contracted with any contractors to perform any work at the subject premises. Emphasis added. See id. 16. THE SAPIR GROUP, LLC was not the general contractor or construction manager for any work being performed at the subject premises. Nor was THE SAPIR GROUP, LLC responsible for, nor undertook any responsibility to perform any construction work on the subject project. Furthermore, THE SAPIR GROUP, LLC was neither responsible for nor did it provide any materials or equipment for use on the project. THE SAPIR GROUP, LLC was not responsible to provide any site supervision at the subject premises and was neither retained nor responsible to evaluate or inspect the means and methods of the work being performed at the time of plaintiff's accident. Emphasis add. See id. 17. THE SAPIR GROUP, LLC did not breach any duty to the plaintiff or any of the named parties in this litigation and did not create or cause any defective condition(s) on the subject premises which allegedly caused plaintiff's accident. Deed for 261 Madison Avenue 18. A copy of the deed for 261 Madison Avenue, New York, New York is attached which identifies MADISON AVENUE, LLC as the owner of the subject premises. A copy of the deed is attached herewith as Exhibit "G". 5 of 7

6 ARGUMENT 19. It is well settled that a motion for summary judgment should be granted when it is clear that no triable issues of fact exists. See Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986). Once the moving party has made a prima facie showing of entitlement to judgment as a matter of law, the burden shifts to the opposing party to establish the existence of material issues of fact. See id. at 324, 508 N.Y.S.2d 923. Mere conclusory statements of unsubstantiated claims in an affidavit in opposition are insufficient to defeat a motion for summary judgment. See Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595, 598 (1980). 20. It also well established that "where documentary evidence definitively contradicts the plaintiff's factual allegations and conclusively disposes of the plaintiff's claim, dismissal pursuant to CPLR 3211 (a)(1) is warranted". Berardino v. Ochlan, 2 A.D.3d 556, 557 (2d Dept. 2003). 21. As established in the affidavit of Alex Sapir, there is absolutely no basis whatsoever to maintain any action against SAPIR in this matter. Not only was SAPIR not the owner of the subject premises, it was not the general contractor/construction manager for the work plaintiff was performing, and it did not direct, supervise or control plaintiff's work. 22. Moreover, there is absolutely no negligence attributable to SAPIR as it did not breach any duty to the plaintiff (or any party) and did not cause or create the condition which resulted in this accident. It is evident that SAPIR had no ties to the work plaintiff was performing on the date of his accident and never contracted with anyone for any work at this site at the time of plaintiff's accident. 23. This is obviously a case of mistaken identity and dismissal is appropriate for 6 of 7

7 SAPIR as they were neither the owner of the building and not affiliated with the work that plaintiff was performing at the subject building at the time of the accident and were not otherwise involved in the scope of work being performed by plaintiff at the time of plaintiff's accident. WHEREFORE, it is respectfully requested that the Court issue an Order dismissing the Summons and Complaint, and all cross-claims, herein pursuant to CPRL 3211(a)(1) and (7) and CPLR 3212 (a)(4) against defendant THE SAPIR GROUP, LLC; and for such other, further or different relief as this Court may deem just and proper Dated: New York, New York May 11, 2018 Nikolaos E. Diamantis 7 of 7