FILED: NEW YORK COUNTY CLERK 07/23/ :11 AM INDEX NO /2013 NYSCEF DOC. NO. 342 RECEIVED NYSCEF: 07/23/2018

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X ANGELENA LUCHEUX and BENJAMIN LUCHEUX, Index No.: /2013 -against- Plaintiff, ORDER WITH NOTICE OF ENTRY WILLIAM MACKLOWE COMPANY, LLC, MACKLOWE MANAGEMENT, LLC, 386 PAS OWNER, LLC, LEND LEASE (US) CONSTRUCTION LMB, INC., SYNERGY CONSTRUCTION, INC., EASTERN CONCRETE MATERIALS, INC. and ELITE TERRAZZO FLOORING INC., X Defendants. PLEASE TAKE NOTICE, that the within is a true copy of the Decision and Order signed by the Hon. Nancy Bannon on July 18, 2018, and duly entered in the office of the County Clerk of Suprerne Court, New York County, on July 19, 2018 Dated: New York, New York July 23, 2018 MARSHALL DENNEHEY WARNER COLEMAN & G GGIN _ By: KEITH M. ANDRESEN Attorney for Defendant EASTERN CONCRETE MATERIALS, INC Wall Street Plaza 21" 88 Pine Street, Floor New York, New York Tel No.: (212) File No.: LEGAL/I v1 1 of 7

2 TO: PETER H. PARETSKY, ESQ. Attorneys for Plaintiffs ANGELENA LUCHEUX and BENJAMIN LUCHEUX 43 West 43rd St., # 127 New York, New York Tel.: (212) ROPERS MAJESKI KOHN & BENTEY PC LEND LEASE (US) CONSTRUCTION LMB, INC. 256' 750 Third Avenue, Floor New York, New York Tel: (212) TRESSLER LLP s MACKLOWE MANAGEEMNT LLC and 386 PAS OWNER, LLC One Penn Plaza, Suite 4701 New York, New York Tel No.: (646) FIDEN & NORRIS LLP SYNERGY CONSTRUCTION, INC. 11th 845 Third Ave, FlOOr New York, New York Tel No.: (212) CORREIA, KING, FODERA MCGINNIS & LIFERIEDGE ELITE TERRAZZO FLOORING INC. One 29th Battery Park Plaza, PlOOr New Y.ork, New York Tel.: (212) LEGAIll v1 2 of 7

3 9^ FILED:. NEW YORK COUNTY CLERK 07 /19 / : 3 PM mdmx No /2013 NYSCEF DOC. NO. 341 RECEIVED NYSCEF: O'//19/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: Hon. Nancy Bannon PART 42 Just/ce ANGELENA LUCHEUX and BENJAMIN INDEX NO /13 LUCHEUX - v - MOTION DATE 5/7/18 WILLIAM MACKLOWE COMPANY, LLC, et al. MOTION SEQ. NO. 012 The following papers were read on this motion for summme judgñiêi t Notice of Motion/ Order to Show Cause - Affirmation - Affidavit(s) - Exhibits - Memorandum of Law No(s). 1 Answering Affirmation(s) - Affidavit(s) - Exh bits No(s). Replying Affirmation - Affidavit(s) - Exhibits = No(s). This is an action to recover damages for personal injuries, arising (rom a slip and fa!i on dust, x. debris, or slippery construction substances on the floor of the lobby in an apartment building. The 3 r defendant Eastern Concrete Materials, inc. (Eastern), moves pursuant to CPLR 3212 for summary udgment dismissing the c0mplaint and all cross-claims insofar as asserted against it. The plaintiffs and the cross-claiming defendants do not oppose the motion. The motion is granted. The plaintiff Angelena Lucheux (Lucheux) alleges that, on October 25, 2013, she slipped and O fell on white powdery dust, debris, or slippery construction substances on the floor of the lobby in a.a building located at 386 Park Avenue South in Manhattan (the building) owned by the defendant 386 u- PAS Owner, LLC. Eastern was the concrete subcontractor for a separate construction project at 400 Park Avenue South, which is adjacent to the building. Lucheux and her husband assert causes of Lu l- m e action to recover against Eastern, contending that the white substance on which Lucheux slipped was 3 Ê generated by Eastern's concrete work at the adjacent building. To prevail against Eastern, the..j plaiñtiffs must ultimately establish that Eastem owed Lucheux a duty to avoid launching a force or instrument of harm at or inside the building, and breached that duty by generating concrete dust and permitting it to spread into the lobby of the building, thus creating a dangerous conditioñ. S_ee Vega v (1" w S.S.A. Props., 13 AD3d 298 Dept 2004); see also Argentina v 68.1 Fifth Aye. LLC, 127 AD3d 440 (1" Dept. 2015); Colon v Corporate Bidq. Groups, Inc., 116 AD3d 414 Morgan Chase S Co., 72 AD3d 729 (2" Dept. 2010). (15 Dept. 2014); Collins v J.P. EiE it is well settled that the movant on a summary judgment motion "must make a prima facie O showing of entitlernent to judgment as a matter of law, tendering sufficient evidence to eliminate any case." material issues of fact from the W inearad v ISe_w York Univ. MedA, 64 NY2d 851, 853 Page 1 of 2 1 of 2 3 of 7

4 ORK COUNTY CLERK 07 /19 ( : 39 moax No. Idom PMI /2023 NYSCEF DOC, NO. 341 RECEIVISD NYSCI F: 07/19/2018 (1985). The motion must be supported by evidence in admissible form (see Zuckerman v City of New.Y_Q11 49 NY2d 557 [1980]), as well as the pleadings and other proof such as affidavits, depcsiuons, and written admissions. _S_eg CPLR The facts must be viewed in the light most favorable to the non-moving party. See Vega v Restani Constr. Corp., 18 NY3d 499 (2012); Garcia y J.C. Duqqan loc. (1" 180 AD2d 579 Dept. 1992), Once the movant meets its burden. it is incumbent upon the nonmoving party to establish the é istence of material issues of fact. Seg Vega v Restani C90str. Corp., sp_pja. A movant's failure to make a prima facie shawing requires denial of the motion, regardless of the sufficiency of the opposing papers. S_ee if Here, Eastern established, with proof in the form of deposiuca testimony, that its concrete operations did not create the type of condition on the adjacent street or in the lobby of the building. Eastern's employee Constantine Quadrozzi explained at his deposition that Eastern washed out its concrete in a sealed container, and that any white substance on the adjacent street and floor of the lobby of the building was thus not generated by Eastern. Eastern further relied upon the deposition testimony of John Kraft, who was produced as a witness by the defendant Lend Lease (US) Construction LMB, inc. Kraft testified that the color of the residue of concrete work would be gray, rather than white, and that the washout from Eastern's operations would have been a wet slurry substance, rather than the powdery sand that Lucheux alleged caused her to fall. Moreover, Kraft testified that he personally observed that white dust inside the lobby of the building, and concluded that the dust was due to the insta"etica of terrazzo tiles on the floor of the tobby of the building. Eastern has thus established, prima facie, that it did not cause or create the condition which a! sged ÿ caused Lucheux's accident. The plaintiffs and those of Eastern's codefendants who cross-claimed âgaiñst it did not submit any papers in opp0sinch to Eastern's motion. They thus fail to raise triable issue of facts as to whether the dâñgercus condition on which Lucheux purportedly fell was caused or created by Eastern. Accordingly, it is ORDERED that motion of the defendant Eastern Concrete Materials, inc., for summary judgment dismissing the complaint and all cross claim against it is granted, without opposition, and the complaint and all cross claims asserted against that defendant are dismissed. This constitutes the Decision and Order of the court. Dated: July , JSC McN. NANC'f ivi. 3AMME 1. Check one: ====d.. CASE DISPOSED W NON-FINAL DISPOSITION 2. Check as appropriate: MOTION IS: GRANTED DENIED GRANTED IN PART - OTHER Page 2 of 2 2 of 2 4 of 7

5 E-file AFFIDAVIT OF SERVICE Nancy Gerbino, being duly sworn, deposes and says: I am not a party to the within action, am over 18 years of age, am employed by Marshall, 21st Dennehey, Warner, Coleman & Goggin, 88 Pine Street, Floor, New York, New York and reside in Queens County, New York. On July 23, 2018, I served a true copy of the within ORDER WITH NOTICE OF ENTRY in the following mamier via NYSCEF and by mailing same in a sealed envelope, with postage prepaid thereon, in a post office or official depository of the U.S. Postal service, addressed to the last known address of the addressees indicated below: TO: PETER H. PARETSKY, ESQ. Attorneys for Plaintiffs ANGELENA LUCHEUX and BENJAMIN LUCHEUX 43 West 43d St., # 127 New York, New York Tel.: (212) ROPERS MAJESKI KOHN & BENTEY PC LEND LEASE (US) CONSTRUCTION LMB, INC. 25th 750 Third Avenue, FlOOr New York, New York Tel: (212) TRESSLER LLP s MACKLOWE MANAGEEMNT LLC and 386 PAS OWNER, LLC One Penn Plaza, Suite 4701 New York, New York Tel No.: (646) FIDEN & NORRIS LLP SYNERGY CONSTRUCTION, INC. 845 Third Ave, 11th FlOOr New York, New York Tel No.: (212) LEoAL/ ,v1 5 of 7

6 CORREIA, KING, FODERA MCGINNIS & LIFERIEDGE ELITE TERRAZZO FLOORING INC. 29th One Battery Park Plaza, FlOOr New York, New York Tel.: (212) ncy Gerbino Sworn to before me this day of July 2018 KEITÚM A Notary Public State of New York No. 02AN Qualified in Queens County Commission Expires October 15, LEGAL/1L v1 6 of 7

7 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X ANGELENA LUCHEUX and BENJAMIN LUCHEUX, Plaintiff, -against- WILLIAM MACKLOWE COMPANY, LLC, MACKLOWE MANAGEMENT, LLC, 386 PAS OWNER, LLC, LEND LEASE (US) CONSTRUCTION LMB, INC., SYNERGY ONSTRUCTION, INC., EASTERN CONCRETE MATERIALS, INC. and ELITE TERRAZZO FLOORING INC., Defendants X =-======-=====-_================================-============= ORDER WITH NOTICE OF ENTRY ===================================================================== MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN s EASTERN CONCRETE MATERIALS, INC 21" Wall Street Plaza, 88 Pine Street, Floor New York, New York (212) Our File No.: LEGAL/ vi 7 of 7