FILED: NASSAU COUNTY CLERK 02/13/ :24 PM INDEX NO /2016 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 02/13/2017

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU JOSE LUNA, Plaintiff, Index No.: /2016 AFFIRMATION IN SUPPORT PSEG LONG ISLAND, 3 GALS INDUSTRIAL, LLC AND MID SUN GROUP INC. PSEG LONG ISLAND, -against- -against- Defendant. Third-Party Plaintiff -X 3 GALS INDUSTRIAL, LLC and MID SUN GROUP INC. Third-Party Defendants. X ROSA M. FEENEY, an attorney duly admitted to practice before the Courts ofthe State of New York, hereby affirms under penalties ofperjury and pursuant to CPLR 2106, as follows: 1. I am Of Counsel to the firm of LEWIS JOHS AVALLONE AVILES, LLP, counsel for Defendant, 3 GALS INDUSTRIAL, LLC. (hereinafter "3 GALS"). As such, I am fully familiar with the facts and circumstances ofthis action respectfully submit this affirmation, in support of the within motion pursuant to 3211 to dismiss the Complaint based upon the fact the claims have no merit or basis in the law and a defense is founded upon documentary evidence. 3. Annexed to this affirmation are the following exhibits: Exhibit A: Affirmation ofjudy Basmajian; 1 of 6

2 Exhibit B: PlaintifFs Summons and Complaint; Exhibit C: Third-Party Summons and Complaint; Exhibit D: A Contract for the Purchase of Equipment and Materials; 4. As set forth more fully below, and as supported by the Affirmation of Judy Basmajian, Member of 3 GALS(annexed hereto as Exhibit "A"), the claims against3 GALS are without merit and lack basis in the law. As such, all claimsagainst3 GALS should be dismissed as a matter oflaw. 5. That this action was commenced via the filing ofa Summons and Complaint by JOSE LLfNA against PSEG LONG ISLAND (Hereinafter "PSEG"). (Exhibit "B") 6. The Complaint alleges that on March 22, 2016, JOSE LUNA was injured, while in the course of his employment with MID SUN GROUP, INC. (hereinafter MID SUN), performing work at a substation or transfer station, owned by PSEG, located on Rail Road Avenue, Glen Head, New York. (See Paragraph 5 ofexhibit "B"). 7. PSEG thereafter filed a Third-Party Complaint against 3 GALS seeking Common Law Indemnity, Common Law Contribution, Contractual Indemnity as well as a claim for Breach of Contract for failure to procure insurance in favor of or for the benefit of PSEG. (Exhibit "C"). (It appears that plaintiff has filed an amended complaint adding 3 GALS as a direct defendant, apparently based on false information pled by PSEG. However, 3 GALS has not been served with that complaint and therefore this motion references the third-party complaint.) DISMISSAL PURSUANT TO CPLR Civil Practice Laws and Rules 3211 provides in pertinent part as follows: CPLR Motion to dismiss 2 of 6

3 (a) Motionto dismisscause ofaction. A partymay move forjudgment dismissing one or more causesof actionasserted againsthim on the ground that: 1. a defense is founded upon documentary evidence; or 7. the pleading fails to state a cause ofaction 9. The Third-Party Complaint alleges that 3 GALS "agreed to provide painting and maintenance services at tlie Premises known as Rail Road Avenue, Glen Head New York." (See Paragraph "10" of Exhibit "C") 10. The Third-Party Complaint further alleges that "prior to and on March 22, 2016, 3 Gals Industrial, LLC, did perform services in connection with the construction project at the aforementioned premises." (See Paragraph"11" ofexhibit"c") 11. As set forth more fully in tlie annexed Affirmation ofjudy Basmajian, Member of 3 GALS, these allegations are completely untrue and unfounded. At no time did 3 GALS have a contract with PSEG to "provide painting and maintenance services." (See Exhibit "A"). 12. Further, at no time did 3 GALS have any involvement with any work at Rail Road Avenue, Glen Head, New York. (See Exhibit "A"). 13. In 2014, 3 GALS and Long Island Electric Utility Servco LLC as agent of and acting on behalfof Long Island Lighting Company d/b/a/llpa entered into "A Contract for the Purchase of Equipment and Materials."' (Hereinafter the "LIPA Contract) (Exhibit "D"). 14. The scope of the LlPA contract was the "purchase of equipment and materials, together with associated on-site incidental services, if any, such as technical direction of installation." (See Exhibit B, LlPA Contract, Exhibit B to the contract, page 4). The specific equipment and materials are set forth in Exhibit C of the LlPA Contract, and were limited to ' PSEG Long Island LLC is listed as an agent of LIFA under the contract. 3 of 6

4 Rogers Foam, Wacker Fuel Line Assemblies, AF fitting Manometers, Warrenheim Buzzlines, Best Gloves, Yale Cordage and DeWalt Drill Drivers. 15. As can be seen from a reading of the LIPA contract, 3 GALS did not agree to painting and maintenance services. Further, no subsequent agreement was entered into by 3 GALS with PSEG. 16. As set forth by Judy Basmajian in her Affirmation, 3 GALS did not perform painting and maintenance services at the Premises known as Rail Road Avenue. Glen Head New York, nor did it perform any services in connection with the project at the Glen Head, New York location. 17. Although the LIPA contract contains an indemnification agreement it is limited to work performed under that agreement. (Paragraph20, Exhibit "D"). 18. However, in addition to the fact that 3 GALS did not supply equipment at the subject location, the painting work referenced in the third-party complaint did not arise out ofthe LIPA contract, and therefore the LIPA indemnification agreement is not applicable. 19. Based upon the above all claims against 3 GALS must be dismissed, as a matter oflaw. FRIVOLOUS CLAIMS 20. Part 130 ofthe Rules ofthe ChiefAdministrative Judge, ofthe State ofnew York provides as follows: Section Costs; sanctions. (a) The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in this Part. In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages 4 of 6

5 in frivolous conductas defined in this Part, which shall be payable as provided in section of this Part. This Partshall not apply to town or village courts, to proceedings in a small claims part of any court, or to proceedings in the Family Court commenced under Article 3,7 or 8 ofthe Family Court Act. (b) The court, as appropriate, may make such award of costs or impose such financial sanctions against either an attorney or a party to the litigation or against both. Where the award or sanction is against an attorney, it may be against the attorney personally or upon a partnership, firm, corporation, government agency, prosecutor's office, legal aid society or public defender's office with which the attomey is associated and that has appeared as attorney of record. The award or sanctions may be imposed upon any attomey appearing in the action or upon a partnership, firm or corporation with which the attorney is associated. (c) For purposes ofthis Part, conduct is frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modificationor reversal ofexisting law; (2) it is undertaken primarily to delay or prolong the resolution ofthe litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false. 21. Both this office and in house counsel for 3 GALS contacted the attorneys for PSEG requesting a discontinuance of this action, but despite the documentary evidence provided and the proof that 3 GALS had no involvement with this loss, they insisted on maintaining this action to the detriment of3 GALS. 22. The instant action is without merit and cannot be supported by a reasonable argument. Further, plaintiffs refusal to discontinue the action despite the proof that 3 GALS was not involved, is being undertaken to harass 3 GALS and prolong the current frivolous litigation. 23. Therefore, it is submitted that 3 GALS INDUSTRIAL, LLC is entitled to costs and Plaintiffshould be sanctioned for the continuation ofthis frivolous action. 5 of 6

6 WHEREFORE, it is respectfully requested that this Court issue an order dismissing the Complaint and Third-Party Complaint, granting costs to 3 GALS INDUSTRIAL, LLC and sanctions against the Plaintiffand for such other and further relief as this Court deems justproper and equitable. Dated: Islandia, New York February 13,2017 LEWIS JOHS AVALLONE AVILES, LLP Attorneysfor Third- Party Defendant 3 GALS INDUSTRIAL, LLC One CA Plaza, Suite 225 Islandia, New York TO: By: ROSA M. FEENEY, ESQ. LJAA File No.: Miller, Eisenman & Kanuck Attorneys for the Plaintiff Jose Luna 450 Fashion Avenue, #1400 New York, NY Hannum Feretic Prendergast & Melino, LLC Attorneys for PSEG 55 Broadway, Suite 202 New York, NY Goldberg Segalla LLP Attorneys for Mid Sun 200 Garden City Plaza, Suite 520 Garden City, NY of 6