FILED: ALBANY COUNTY CLERK 02/15/ :30 PM INDEX NO. A01268/2014 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 02/16/2017

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1 STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY NAKIRA HAYNES, Index No.: 3307/2013 NOTICE OF MOTION J. PETER MCPARTLON, DANlEL W. BOWLIN, JULIANNE BOWLIN, POLLY N. RUTNIK RASHIEK HAYNES, Index No.: A01268/2014 J. PETER MCPARTLON, ROGER A. PLOOF, DANlEL W. BOWLIN, JULIANNE BOWLIN, POLLY N. RUTNIK PLEASE TAKE NOTICE, that upon the annexed Affirmation of Michael J. Burke Esq., dated February 15, 2017, and the exhibits attached thereto, and upon all other pleadings and proceedings heretofore had herein, defendant J. PETER MCPARTLON, by his attorneys, Eckert Seamans Cherin & Mellott, LLC, will move this Court, at the Supreme Court, Albany County Courthouse, 16 Eagle Street, Albany, New York 12207, on the 9 th day of March, 2017, at 9:30 a.m. or as soon thereafter as counsel may be heard, for an Order: a. Pursuant to CPLR 3212 granting summary judgment in favor of defendant J. Peter McPartlon and dismissing plaintiff s complaint and all cross-claims; 1 of 7

2 b. Directing the Clerk of Court to enter judgment accordingly; and c. For such other and further relief as deemed just and proper by this Court. PLEASE TAKE FURTHER NOTICE, that pursuant to CPLR 2214(b), answering papers, if any, are required to be served at least seven (7) days before the return date of this motion. Dated: White Plains, New York February 15, 2017 Yours, etc. /s/ Michael J. Burke, Esq. Michael J. Burke, Esq. ECKERT SEAMANS CHERIN & MELLOTT, LLC Attorneys for Defendant J. PETER MCPARTLON, 10 Bank Street, Suite 700 White Plains, NY (914) TO: Mo Athari, Esq. ATHARI & ASSOCIATES, LLC Attorneys for Plaintiff 2 Oxford Crossing, Suite 2 New Hartford, NY (315) Brian D. Casey, Esq. BARCLAY DAMON, LLP 80 State Street Albany, NY Daniel W. Bowlin and Julianne Bowlin of 7

3 Michael L. Boulhosa, Esq. WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP 1133 Westchester Avenue White Plains, NY Daniel Bowlin & Julianne Bowlin Brian W. Matula, Esq. COOPER ERVING & SAVAGE LLP 39 North Pearl Street Albany, NY Mahadaye Khan & Abasali Khan John S. McCaffrey, Esq. WILLIAMSON, CLUNE & STEVENS 317 North Tioga Street Ithaca, NY Mark Williams and Timothy Spickerman Marc J. Kaim, Esq. BAILEY, KELLEHER & JOHNSON, P.C. Pine West Plaza, Suite 507 Washington Avenue Extension Albany, NY Attorneys for Defendant Polly N. Rutnik d/b/a Clinton Avenue Associates CARL J. COCHI, ESQ. Mayro Building 239 Genesee Street, Suite 104 Utica, NY Attorney for Defendant Roger A. Ploof Christian J. Soller, Esq. HODGSON RUSS, LLP 677 Broadway, Suite 301 Albany, NY Attorneys for Defendant J. Peter McPartlon of 7

4 STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY NAKIRA HAYNES, Index No.: 3307/2013 J. PETER MCPARTLON, DANlEL W. BOWLIN, JULIANNE BOWLIN, POLLY N. RUTNIK AFFIRMATION IN SUPPORT OF MOTION RASHIEK HAYNES, Index No.: A01268/2014 J. PETER MCPARTLON, ROGER A. PLOOF, DANlEL W. BOWLIN, JULIANNE BOWLIN, POLLY N. RUTNIK MICHAEL J. BURKE, an attorney at law duly admitted to practice before all of the Courts of the State of New York, hereby affirms, pursuant to CPLR 2106, the following under the penalties of perjury: 1. I am a member of the law firm of Eckert Seamans Cherin & Mellott, LLC, attorneys for defendant J. Peter McPartlon ( McPartlon ) in the action filed by plaintiff RASHIEK HAYNES, as such, I am fully familiar with the facts and circumstances pertaining to this action, and the pleadings and proceedings herein based on a review of the file maintained in this office. 4 of 7

5 2. I submit this affirmation in support of McPartlon s motion: (i) pursuant to CPLR 3212, granting summary judgment in favor of defendant and dismissing plaintiff s complaint; and dismissing the cross claims of the co-defendants (ii) directing the Clerk of Court to enter judgment accordingly; and (iii) such further relief as the Court deems just and proper. SUMMARY OF ARGUMENT 3. Plaintiff s lead paint claim fails for a simple reason it was filed beyond the applicable statute of limitations. PROCEDURAL HISTORY 4. This action was commenced by the filing of a Summons and Verified Complaint on December 16, (True and correct copies of plaintiffs Summons and Verified Complaint are collectively annexed hereto as Exhibit A.) 1 5. Issue was joined by McPartlon on January 6, 2015, by the service of its Verified Answer and Cross Claims. (A true and correct copy of McPartlon s Verified Answer and Cross Claims is annexed hereto as Exhibit B.) 6. Our law firm was thereafter substituted in as attorneys for McPartlon on February 20, (A true and correct copy of the Notice of Substitution of Counsel dated February 20, 2015, is annexed hereto as Exhibit C.) 7. By unopposed motion submitted by counsel for McPartlon in the action initiated by Nakira Haynes, the two actions were consolidated solely for conducting discovery. 8. By unopposed motion submitted by your affiant in the action initiated by Rashiek Haynes, McPartlon submitted an amended answer dated February 12, (A true and correct copy of the amended answer, dated February 12, 2016, is annexed hereto as Exhibit D.) 1 The Nakira Haynes action, which is not relevant to the instant motion, was initiated by the filing of a Summons and Verified Complaint dated June 13, As the pleadings history in that action are not germane to this motion, they have not been included of 7

6 9. A compliance conference was held before the Court on October 27, At that conference a scheduling order was agreed to and So Ordered by the Court on November 3, That order directed that motions for summary judgment based on a statute of limitations defense be filed by February 16, (A true and correct copy of the Order, dated November 3, 2016, is annexed hereto as Exhibit E.) ADMISSIBLE EVIDENCE IN SUPPORT OF THE MOTION 10. Attached hereto are the following documents: Exhibit F Defendant McPartlon s Notice to Admit dated May 11, 2016; Exhibit G Plaintiff s response to McPartlon s Notice to Admit dated May 24, 2016; Exhibit H Deposition of plaintiff s Rashiek Haynes; Exhibit I Deposition of plaintiff s mother, Ms. Lolita Haynes; Exhibit J Deposition of plaintiff s sister Nakira Haynes; Exhibit K Albany County Health Department Payment Information Sheet marked as Exhibit C at the deposition of Lolita Haynes on December 13, 2016; and Exhibit L Plaintiff s Verified Bill of Particulars dated October 30, The legal grounds for dismissal of plaintiff s complaint that the complaint was filed after the applicable statute of limitations period - is explained in the accompanying memorandum of law. 12. Defendant McPartlon adopts and incorporates by reference the motion seeking the same relief filed on behalf of co-defendant Roger A. Ploof of 7

7 WHEREFORE, Defendants respectfully request the Court enter an Order: (i) granting summary judgment in favor of Defendant and dismissing plaintiff s Complaint and all crossclaims; (ii) directing the Clerk of Court to enter judgment accordingly; and (iii) for such other relief as the Court deems just and proper. Dated: White Plains, New York February 15, 2017 /s/ Michael J. Burke, Esq of 7