FILED: NEW YORK COUNTY CLERK 09/18/ :30 PM INDEX NO /2013 NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 09/18/2017

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PAUL WOITOVICH, Plaintiff, NOTICE OF MOTION No /13 - against - THE CITY OF NEW YORK, INTERNATIONAL HOUSE OF PANCAKES, LLC, TRIHOP 14th STREET LLC, 235 EAST 14th STREET REALTY LLC, AAC MANAGEMENT CORP., ENVIROGREEN SERVICES, INC. and RESTAURANT TECHNOLOGIES, INC., Defendants. PLEASE TAKE NOTICE that upon the annexed affirmation of Timothy J. O Shaughnessy, dated September 18, 2017, the undersigned will move this Court, at the Courthouse, 60 Centre Street, New York, New York on the 13th day of October, 2017, in Room 130 at 9:30 a.m. or as soon thereafter as counsel may be heard, for an order granting Defendant City of New York leave to withdraw the notice of appeal dated November 1, 2016 and granting said defendant such other and further relief as this Court may deem just and proper. PLEASE TAKE FURTHER NOTICE that pursuant to CPLR 2103(b)(2) & (6) and 2214(b) your answering affidavits, if any, and notice 1 1 of 8

2 of cross-motion and supporting papers, if any, are to be served so as to be received by the undersigned at least seven or twelve days prior to the time at which this motion is noticed to be heard. Dated: Brooklyn, New York September 18, 2017 LAWRENCE HEISLER Attorney for Defendant City of New York by: /s TIMOTHY J. O SHAUGHNESSY New York City Transit Authority 130 Livingston Street Brooklyn, New York (718) of 8

3 To: Lipsig, Shapey, Manus & Moverman Attorneys for Plaintiff 40 Fulton Street, 25th Floor New York, New York (877) Burns & Nallan Attorneys for Defendants International House of Pancakes, LLC and Trihop 14th Street LLC 150 Broadway, Suite 1400 New York, New York (917) The case has been dismissed or withdrawn as against 235 East 14th Street Realty, LLC, AAC Management Corp., Envirogreen Services, Inc. and Restaurant Technologies, Inc. but the caption has not been amended. 3 3 of 8

4 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PAUL WOITOVICH, - against - Plaintiff, AFFIRMATION THE CITY OF NEW YORK, INTERNATIONAL HOUSE OF PANCAKES, LLC, TRIHOP 14th STREET LLC, 235 EAST 14th STREET REALTY LLC, AAC MANAGEMENT CORP., ENVIROGREEN SERVICES, INC. and RESTAURANT TECHNOLOGIES, INC., Defendants. TIMOTHY J. O SHAUGHNESSY, under penalty of perjury, affirms to the truth of the following: I am admitted to practice before the Courts of this State and am of counsel to Lawrence Heisler, Attorney for Defendant City of New York. I submit this affirmation in support of the City s motion for an order granting Defendant City of New York leave to withdraw the notice of appeal dated November 1, 2016 and granting said defendant such other and further relief as this Court may deem just and proper. The facts set forth below are taken from the record in this action and my own personal knowledge. 4 of 8

5 We are sorry to be forced to trouble this Court but we simply would like to withdraw our notice of appeal dated November 1, 2016 (ex. A) and in the First Department this must be done by stipulation filed in the Supreme Court. For unknown reasons, plaintiff has repeatedly failed to sign and return the proposed stipulation, although the IHOP defendants have courteously signed and returned their copy (ex. B). Attached as exhibit C are copies of the s with attached draft stipulation sent to plaintiff. After plaintiff ignored the first one, on August 11 I telephoned plaintiff and spoke with Charles Wisell, who said he would sign the stipulation and asked me to send him another copy, which I immediately did. Since then I have telephoned Mr. Wisell several times and always been told that he is unavailable. Every time, I left a message asking him to return the signed stipulation or to call me and authorize me to sign his name. But I have never received the courtesy of a response. Thus, only because of plaintiff s lack of courtesy are we required to bother this Court with this motion of 8

6 WHEREFORE, the City should be granted leave to withdraw the notice of appeal dated November 1, 2016 and such other and further relief as the Court deems proper. Dated: Brooklyn, New York September 18, 2017 /s TIMOTHY J. O SHAUGHNESSY of 8

7 TIMOTHY J. O SHAUGHNESSY, under penalty of perjury, affirms to the truth of the following: I am admitted to practice before the Courts of this State, am over the age of 18 years and am not a party to this action. On September 18, 2017 I served the within notice of motion and affirmation upon: Lipsig, Shapey, Manus & Moverman 40 Fulton Street, 25th Floor New York, New York Burns & Nallan 150 Broadway, Suite 1400 New York, New York those being the addresses designated by said attorneys for that purpose, by depositing a true copy of same for each in a secure properly-addressed post-paid wrapper in an official depository under the exclusive control of the United States Postal Service in the State of New York. Dated: Brooklyn, New York September 18, 2017 /s TIMOTHY J. O SHAUGHNESSY 7 of 8

8 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PAUL WOITOVICH, Plaintiff, - against - THE CITY OF NEW YORK, INTERNATIONAL HOUSE OF PANCAKES, LLC, TRIHOP 14th STREET LLC, 235 EAST 14th STREET REALTY LLC, AAC MANAGEMENT CORP., ENVIROGREEN SERVICES, INC. and RESTAURANT TECHNOLOGIES, INC., Defendants. NOTICE OF MOTION AND AFFIRMATION LAWRENCE HEISLER Attorney for Defendant City of New York New York City Transit Authority 130 Livingston Street Brooklyn, New York (718) of 8