FILED: NEW YORK COUNTY CLERK 01/05/ :46 PM INDEX NO /2015 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 01/05/2018

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X â EDDIE M. AMARANTE TIBURCIO, Plaintiff, Index No: /2015 Affirmation in Opposition THE CORINTHIAN CONDOMINIUM, THE CORINTHIAN 50TH FLOOR, LLC, NYCO RESIDENTIAL DEVELOPMENT LTD, 645 FIRST AVENUE MANHATTAN LLC, ROSE ASSOCIATES, INC. and PFIZER INC., Defendants X THE CORINTHIAN CONDOMINIUM, BOARD OF MANAGERS OF THE CORINTHIAN CONDOMINIUM and ROSE ASSOCIATES, INC. X Third Party Plaintiffs, -against- -against- BRIAN MEHLING -_ X Third Party Defendants, X GREG-PATRIC MARTELLO, hereby affirms and states under the penalty of perjury that I am counsel to the Plaintiff EDDIE M. AMARANTE TIBURCIO and am an attorney duly licensed to practice law in the State of New York; I maintain offices for said practice at 666 Old Country Road, Suite 210, Garden City New York I make this affirmation in opposition to the Defendants' DEVELOPMENT LTD, 645 FIRST AVENUE MANHATTAN LLC, ROSE ASSOCIATES, INC. and PFIZER INC.,'s CORINTHIAN CONDOMINIUM "] motion pursuant to CPLR THE CORINTHIAN CONDOMINIUM, THE CORINTHIAN 50TH FLOOR, LLC, NYCO RESIDENTIAL $602 to consolidate the instant action with the action Brian Mehlin v. Corinthian 1 1 of 8

2 2. Plaintiffs agree in part and object in part and submit an alternative solution to the issues raised by this motion; Relief Sought 3. Corinthian Condominium seeks to consolidate the instant case The Tiburcio suit"] Action #1 with the action [Brian Mehling v. Corinthian Condominium Board et al,] under Index No / Action #2 with the consolidated action being re-captioned and all issues tried under Index No /2015; 4. One of the two main issues in both cases is which party or parties is responsible for causing the water/mold damage that both parties agree did occur to the penthouse apartment owned by 38* Brian Mehling and which is located at 330 East 38 St. New York, N.Y The Premises "]. 5. The proof of this issue will involve extensive expert opinions, reports and testimony from experts on both sides. As is indicated below much of this expert evidence including extensive reports has already been obtained and exchanged by the parties. 6. The second main issue is whether the mold that was created at the Premises affected the health and well being of EDDIE M. AMARANTE TIBURCIO Tiburcio"] and if so did it do so to the extent that it caused him serious physical and mental harm such that he would be entitled to damages and from whom. 7. The proof of this issue will consist of extensive mold and medical expert testimony concerning the creation and affect of mold infestation and the particular affect and extent of said infection to Tiburcio. The Parties 8. In Action #1 The Tiburcio suit"] Tiburcio is the lone plaintiff against Corinthian Condominium and its co-defendants; 9. In Action #1 Corinthian Condominium and its co-defendants are the Defendants vs Tiburcio; 10. In Action #1 Corinthian Condominium and some of its co-defendants are Third Plaintiffs as against Brian Mehling Mehling"]; - Party 2 2 of 8

3 11. In Action #1 Mehling is a Third-Party Defendant as against Corinthian Condominium and some of its co-defendants; 12. In Action #2 Mehling is a Plaintiff against Corinthian Condominium and its co-defendants; 13. In Action #2 Corinthian Condominium and its co-defendants are Defendants as against Mehling; Possible Verdicts with a Consolidated Action/Jury Confusion 14. In a consolidated action a jury could determine that Mehling is entitled to recovery for damage to his property caused by Corinthian Condominium in whole or in part and if in part then what percentage; or not at all; 15. A jury must determine the issues concerning Corinthian Condominium's seventeen affirmative defenses and two cross claims which it filed against Mehling; 16. The jury could then determine that Corinthian is liable to Tiburcio - in a tort action - in whole or in part, and, if in part, then what percentage, or not at all; 17. The jury could then determine that Mehling is liable to Tiburcio - in a tort action- in whole or in part, and, if in part what percentage, or not at all; 18. To complicate matters in a consolidated action the water/mold damage issue in each case is not exactly the same. In Tiburcio - the proof of the water damage and subsequent mold damage will show that it began in and about and up to the same time as the proof in the Mehling action; 19. However, in Tiburcio, proof of said damage will stop at the time alleged that the mold caused an infection in Tiburcio whereas in the Mehling case the proof of water damage will continue until at least 2016 if not further; 20. Given the differing roles of virtually each party and the necessary jury charge concerning burden of proof for each of the various and shifting positions of said parties the potential for 3 3 of 8

4 jury confusion is obvious and possibly inevitable. [As per Weinstein Korn and Miller jury confusion is one of the factors which should weigh against joinder.] Theory of Consolidation 21. As counsel for Corinthian Condominium correctly states in her affirmation in support of the instant motion Mehling charges Defendant Corinthian Condominium with causing water to leak into the Premises over a substantial period of time - said leakage resulting in substantial property damage as well as the creation of a mold infestation in the Premises [See Mastroddi A_(L Par. 71; 22. In Action 41 Tiburcio, who had been a resident at the Premises for a period of time, charges Corinthian Condominium with the same claims of causing the water leakage which eventually caused a mold infestation at the apartment. Unlike Mehling however he further charges that this mold infestation caused a deterioration in his health which eventually caused physical damage to him; 23. Corinthian Condominium argues as its defense in both cases that it was not responsible for any water damage whatsoever but rather any water damage was caused through the two greenhouses on the roof of the penthouse Premises which were owned by Mehling and therefore were his responsibility to keep up and repair; 24. Corinthian Condominium further argues that since it is not responsible for any of the water damage it cannot be liable to Tiburcio for any damage whatsoever; Discovery Issues 25. Counsel for Corinthian essentially argues that it would be a waste of client's time and money, as well as the Court's time to separately litigate the same discovery issues separately when the issues which form the basis for such discovery are the same except for the additional issues involving Tiburcio's separate damage claims for personal injury; 26. In support of this argument counsel states that both cases are pre-ebts and in the very early stages of paper discovery. [See Mastroddi A ff. Par While technically accurate counsel omits the fact that at least a material part of this discovery has already been collected, discussed and exchanged by the parties as a result of litigation in a separately filed action by Mehling against Corinthian Condominium in February, 2016, under 4 4 of 8

5 Index No /2016. That action essentially alleged the same charges but requested additional emergency relief. 28. As a result of that litigation both sides hired experts to examine and inspect the Premises and to report on its condition and the causes of said condition. These inspections continued over many months. Both sides created and exchanged detailed reports; 29. The point being that even though the actions are pre-ebt and pre-formal discovery procedures, nevertheless, a substantial amount of discovery has already been made and discussions had; 30. That action was dismissed in August 2016 based on the fact that the action under Index # Index No /2015 had ben filed and was pending; Same Questions of Fact and Law 31. In both cases Plaintiffs are asking damages based on claims of water leakage caused by Defendant Corinthian Condominium; 32. Counsel argues that both matters involve the same questions of fact and law but admits that in Action #2 there are the additional questions of the proximate cause of Tiburcio's damages; 33. In actuality there are two very distinct and opposite type of damages. Although the proof required in the Tiburcio action will require the same water/leakage/property damage/ proof as in the Mehling action the additional proof required in Tiburcio will address the following issues; whether the creation of the mold in the Premises was as a result of the water leakage; the type of mold that was created; how such a mold can infect an individual; how that mold infected Tiburcio; what was the result of that infection; how said infection affected Tiburcio in this particular case; how said infection caused him to fall resulting in substantial and life threatening injuries he suffered as a result of the fall; the permanent damage to him which was a direct result of the fall and other issues; 34. The proof of mold and the medical proof will be very substantial, intricate, extensive, and have nothing whatever to do with which party caused the water leakage into the Premises. It is for all intents and purposes a totally separate trial with different issues which in and of itself could easily take up a month of trial time; 5 5 of 8

6 Proposed Solution 35. Plaintiff Tiburcio and Mehling agree that there is one damage issue that is common to both actions, namely, which party and to what extent said party may have caused the water and mold damage in the Premises, both of which - as a result of inspection and expert reports ordered by the court in th action - the parties concede exists; 36. Plaintiffs however, oppose a consolidation of both cases and rather suggest a joinder of the water/mold damage issue to be tried once with the separate tort claim tried separately; 37. CPLR 602 permits the joinder of certain claims and does not require an all or nothing consolidation; CPLR 602. Consolidation. (a) Generally. When actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay"; 38. Accordingly, the water/mold damage issue common to both actions can be joined and that action tried independently of the remaining claims regarding the personal damage claimed by Tiburcio in the instant Action #1; ' 39. Under the proposed scenario the result of the liability issue determined in the [Brian Mehling v. Corinthian Condominium Board et al,] under Index No / Action #2 would act as a collateral estoppel with regard that same liability issue in Action #1; 40. The remaining claims in Tiburcio would then be separately tried before the same Court that conducted the water/mold damage issue; 41. Under the proposed scenario the possibility of jury confusion, especially regarding Mehling's role would be greatly reduced. Under the consolidation theory under Action #2 Mehling is first a Plaintiff with Corinthian as his adversary; then a Plaintiff with affirmative defenses and cross claims; then in Action #1 he is a Third - Party Defendant who will contend that he caused none of the damage and that any damage that was caused was caused by Corinthian; 6 6 of 8

7 42. If the jury were to find that there was water and mold and that said mold damage caused personal damages to Tiburcio, Mehling and Corinthian would then be adversaries in determining the respective liability or exoneration of each; 43. Under the proposed scenario where the water/mold damage issue would be tried first but would be determinative on the issue in both cases, Mehling would be a Plaintiff with Corinthian filing its defenses and cross claims - a simple scenario for a jury to understand; 44. This solution can be implemented by an agreement by the parties that the determination of the water/mold damage issue in Action #2 [Brian Mehling v. Corinthian Condominium Board et al,] under Index No /2015 will also be determinative of that same issue in the instant action; Possible Defective Service 45. As of April 20, 2017 Corinthian Condominium has been represented in the instant action - Action #1 - by the firm of MORRIS DUFFY ALONSO & FALEY Morris Duffy"]; 46. Prior to that date Corinthian Condominium had been represented by the law firm of Arnold Stream 276 Fifth Ave. Suite 704, New York, N.Y , [212] Stream"] 47. The firm of Matthew A. Cuomo 200 Old Country Road, Suite 2 South, Mineola, NY, Cuomo" [516] ] filed a notice of appearance to represent Mehling as a third party defendant under Action #1; 48. Mehling was insured as against various damages to the Premises. Said insurer designated Cuomo as its counsel to defend its interests; 49. Although MORRIS DUFFY is counsel to Corinthian Condominium in the instant Action #1 it is not counsel of record to Corinthian Condominium in Action #2. In that action Corinthian Condominium is represented by the firm of Fixler & LaGattuta, LLP. 120 Broadway Suite 1350, New York, N.Y Fixler"]. As such it would appear that Fixler has a right to be serve with the motion and to submit a response if it chooses to do so. 7 7 of 8

8 50. Fixler does not receive e-file notices &om Action Pl. That firm would have to be served separately by physical service of the motion. There is no indication in the docket sheet that any such service has been made. 51. Either the Fixler firm is unaware of the instant motion or it is aware of the motion and has chosen not to oppose the motion. MORRIS DUFFY should advise. WHEREFORE, Plaintiffs respectfully requests that defendants motion for consolidation be denied and Plaintiffs proposed solution be granted. Dated: January 5, 2018 X 8 8 of 8