FILED: ROCKLAND COUNTY CLERK 06/28/ :10 AM INDEX NO /2016 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 07/09/2018

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND X X ANNA TIHIN, Index No.: /2016 -against- Plaintiff(s), NOTICE OF APPEAL MARTIN S. RUTSTE1N and BRENDA RUTSTEIN, X Defendant(s). X PLEASE TAKE NOTICE, that the Defendants, MARTIN S. RUTSTEIN and BRENDA RUTSTEIN, in this proceeding hereby appeal to the Appellate Division Second Department from the Decision and Order of the Supreme Court, Rockland County, Honorable Thomas E. Walsh, II, J.S.C., dated June 25, 2018 and filed with the office of the Clerk of said Court on the 25th day of June, 2018; Notice of Entry having been served on the 25th day of June, 2018 and filed with the office of the Clerk of said Court on the 26th day of June, A true copy of said Decision and Order with Notice of Entry is annexed hereto as Exhibit "A". Dated: White Plains, New York June 27, 2018 Yours, VINC T. ACESTE, ESQ. Attorney or Defendants 305 Old Tarrytown Road White Plains, New York (914) Our File No.: D2044 TO: ARGYROPOULOS & ASSOCIATES, LLC Attorneys for Plaintiff Broadway, Suite 202 Astoria, New York (718) of 12

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3 FILED : ROCKLAND COUNTY CLERK 0 6/2 6/ : 0 6 PM INDEX NO /2016 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/26/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND X ANNA TIHIN, INDEX NO.: /2016 Plaintiff, -against- ORDER WITH NOTICE MARTIN S. RUTSTEIN and BRENDA RUTSTEIN, OF ENTRY Defendants _---- _-_ X C O U N S E L O R S: PLEASE TAKE NOTICE, that within is a true copy of an Order duly entered inthe Office of the Clerk ofthe within named Court dated June 25, Dated: Queens, New York June 25, 2018 ARGYR 40 0 SSOCIATES LLC P IP ARGYitOPOULO, ESQ. orneys for Plaintiff ost Office Address Broadway, Suit 202 Astoria, New York (718) TO: VINCENT J. ACESTE, ESQ. Attomeys for Defendants MARTIN S. RUTSTEIN and BRENDA RUTSTEIN 305 Old Tarrytown Road White Plains, New York (914) Your File No.: D of 5 3 of 12

4 (FILED : ROCKLAND COUNTY CLERK 06 /25 / : 4 4 P$ INDEX NO /2016 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 06/25/2018 COURT'OF' kieav' SUPREME COURJ"OF BIER1ATEdF NEWYORK COUNTY OF ROOKLAND x ANNA TIHIN, Plaintiff(s)c -X. DECIS1ON 4 ORDER Index No /2016 -against- Motion if~ I - MD DC - N Adj:.8/1/18 MARTIN S. RUTSTEIN and BRENDA RUTSTE1N, Defendant(s) x Hon. Thomay E. WalsigR, J.SiC. T' fpllowiiagpapéanumbered 1-3 are considered in connection with Defendant's (i«(ii or'der," ia' Notice ofmotioa(hfotibn.#1) fore1order; pursuant to CivilÝractice ligw and Rü1es.43212,. thereby granting sudanaryjudgment and dísmissing.plainnf.s Plaintiffecomplaint and all claims, the: PAPERS NOMBER Notice of Motion (Motion #1)/Affirmation of Vincent Aceste Esq,/Corrected Af6nnation of Vincent Aceste, Esq/Exhibits (A-H). 1 Affirmation in-opposition of Philip Argyropoulos, Esq/Exhibit A 2 Reply Affirmation ofvincent J. Aceste, Esq. 3 Plaintiff commenced the instant action on June 3,.2016 with the.filing of a Summons and Complaint. Defendants were served on July 7, 2016 separately pursuant to Civil Practice Law and Rules 308(1). Bsue Wasjoined by thefilingof aa" Verified Answer on Jiily 21, 20I6. On January 1, 2018 Plainfiff W1ed anote ofissue and Certincate of1teadiness for trial Defendant forsumrnary' filed the instanttitnely motion forsumniary judgment(motion #i) on January 25, The instantaction for personalinjuries from an alleged fall by Blaintiffin 'front of Defendant's home.located at 10 Filmont Drive3 inew City Nev/York on-april plainti6'contends' Specifically, Plaintincontendstliat,shetripped andfell over fencingmocatedon or adjacent to 1 of 3 4 of 12

5 INDEX NO /2016 FILED : ROCKLAND COUNTY CLERK 0 6/25/ : 4 4 Ph$ NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 06/25/2018 premises." aforesaid Plaintiff also asserts that the accident was caused by a "dangerous" and "hazardous" condition created by Defendants and allege actual and constructive notice of the condition. The alleged accident occurred when Plaintiff was on her routine speed walk in the neighborhood and fell on metal fencing she alleges was in front of Defendant!s home. propo'nent' ol' The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, by tendering sufficient evidence to eliminate any material issues of fact from the. case and to warrant a court to direct judgment in its favor. as a matter of law [Civil Practice Law and Rules 3212(b); Giuffridg v. Citibank Corg, et al, 100 (1986). NY2d 72. (2003), citing Avarez v. Prospect Hosg,., 68 NY2d 320 (1986); and.2uckerman y. City ofnew York, 49 NY2d 957 (1980)]. FailureWmáke suchshowing requires denial of the motion, kledieal' regardless ofthe,sufficiency ofwhe opposing papers [Winegrad v. New YorkAJniversity Medical Cercfer' Gentèr 64 NY2&851 (1985)}, Once a movingparty hasanade a prima facie showing of its entitlement to summary judgment, the burden-séifts to the opposing partycto produce evidentiäry proof In admissible form sufficient to establish the existence of material issues of fact which require a trial of the action [Alvarer v. Prosoeci Häsn., 68 NY2d 320 (1986); Gönzalez v. 98 Maq Leasing Corp NY2d 124 (2000), citing Alvarez, supra, and Wineeradv..Veu Ñew York University Med Center, 64 NY2d 851 (1985)). The opponent must assemble, lay bare and reveal his proofs, in order to show that the matters set up in his complaint are real and are capable of being established upon a trial [ Di Sabato v. Soffes, 9 A.D.2d 297 (1st Dept.'' 1959)}. -')t.summary,summary judgment will.be granted only if there. is no triable issue of fact, issue finding, rather than.issue-4etermination, is the key to summary judgment, and the papers on the motion should be scrutinized carefully irithe light mostfavorable to the party opposing the relief [Judice v.deangeloåý2 ot8sr AD2d3B(24 Dept 2000)]. Defeindant has met their summary Judgment burden However, Plnintiff has raised triable issues of fact which reqµire:the resolution. of ajury, Specifically,.through the testimony of the Plaintiff'andiBeferidantS::ina inn Plaintiffand Defendánts iñ their Exaniitiations Before Trial (heremafter EBTs) Plaintiffs in oppositienstoffefendantsk opposition oppositii'ontto motion.for summary judginen¾.have raised triable issues offact as to the ownership ofthe fencing and tvhether Defendants had actual notice ofthe defective condidon. 2 of of 12

6 INDEX NO. FILED : ROCKLAND COUNTY CLERK 06/25/ : /2016 PM) NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 06/25/2018 Therefore,.the Court sttnrrrr~i,' is denying Defendant's motions for summary judgment. In arriving at this decision the Court has reviewed. evaluated and considered all of the issues framedby these.motion papers and the failure of the Court to specifically mention any that' particular issue in this Decision and Order does not mean that Court in light of the appropriate legal authority. it has not been considered by the Accordingly, itishereby ORDERED thatdefendant!s-motion for Summary Judgment (Motion #1) is denied in its entirety,' entirety; and itis further ORDERED thatthe parties are to appear for trial on WEDNESDAY AUGUST Ic2018 st9û0s. in TAP heforethe;honorahte William She,rwo'od, JE.Ú. ~ Dated: New i New York. Ir June 2018 ~i i' on. Thoma. Walsh IT.J.3.C. PHILIP ARGYROPPOULOS, ESQ. Attorney for Plaintiff.(via e-file) VINCENT J. ACESTE, ESQ. Attorneys for Defendants (via e-fue) 3 of 3 6 of 12

7 STATE OF NEW YORK ) ) ss: FILED: ROCKLAND COUNTY CLERK 06/28/ :10 AM INDEX NO /2016 FILED : ROCKLAND COUNTY CLERK 0 6/2 6/ : 0 6 Pli INDEX NO /2016 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/26/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND X ANNA TIHIN, INDEX NO.: /2016 Plaintiff, -against- AFFIDVAIT OF SERVICE MARTIN S. RUTSTEIN and BRENDA RUTSTEIN, Defendants X COUNTY OF QUEENS ) NICOLE GAJ, being duly sworn deposes and says that deponent is not a party to this proceeding, is over 18 years of age and resides in Queens County, New York. That on June 25, 2018, I served the within ORDER WITH NOTICE OF ENTRY upon all parties by filing on the Supreme Court, County of Rockland Electronic Filing Website and by depositing a true copy in a post-paid wrapper, by regular mail in an official depository under the exclusive care and custody of the United States Postal Service within the County of Queens, City and State of New York, addressed to each of the following persons at the last known address set forth after each name: VINCENT J. ACESTE, ESQ. Attorneys for Defendants MARTIN S. RUTSTEIN and BRENDA RUTSTEIN 305 Old Tarrytown Road White Plains, New York (914) Your File No.: D2044 I / NICO1 GAJ Sworn to before me this 25* day of June, 2018 NOTARY PUBLIC VALVERDE, DIANA Notary Public, State of New York No. 01VA County' Qualified in Queens County Commission Expires Feb. OS, 204 of 5 7 of 12

8 Supreme Court of the State of New York Appellate Division: Second Judicial Department Form A - Request for Appellate Division Intervention - Civil See of the rules of this court for directions on the use of this form (22 NYCRR 670.3) ";;" or Gonrtfof.Oristinal Instance : ANNA TIHIN, Plaintiff, -against- MARTIN S. RUTSTEIN and BRENDA RUTSTEIN, Date Notice of Appeal Filed F r Appellate Division Defendants. o CPLR Article 78 Proceeding ~ ~ X Civil Action o Special Proceeding Other X Appeal o Transferred Proceeding o CPLR Article 75 Arbitration o Habeas Corpus Proceeding o Original o Proceeding CPLR 5704 Review ~ ~ 0 ~ ' ~ ' ~ A Adnumstra ve Re QÝfon a f ÅfikoŠ f fñ 1.Ÿor o 1 Freedom of Information Law a 1 Adoption o 1 Disciplme o 1 Assault Battery. o 2 Human Rights o 2 Attorney's Fees o 2 Jail Time Calculation False Imprisonment o 3 Licenses o 3 Children - Support o 3 Parole o 2 Conversion a 4 Public Employment o 4 Children - Custody/Visitation o 4 Other o 3 Defamation o 5 Social Services o 5 Children - Terminate o 4 Fraud '~' " ' j"~-";-.;" o 6 Other Parental Rights G ReÑ frope jf..peg", 33 "; o 5 Intentional Infliction of ' "' & Busmess & Other QelátioSqÌjjp o 6 Children - Abuse/Neglect o 1 Condemnation Emotional Distress o 7 Children - JDIPINS o 2 Determine Title o 6 Interference with Contract o 1 Partnership/Joint Venture o 8 Equitable Distribution o 3 Easements o 7 Malicious Prosecution! o 2 Business o 9 Exclusive Occupancy o 4 Environmental Abuse of Process o 3 Religious of Residence o 5 Liens o 8 Malpractice o 4 Not-for-Profit o 10 Expert's Fees o 6 Mortgages X 9 Negligence o 5 Other o 11 Maintenance/Alimony o 7 Partition o 10 Nuisance C. Contracts ' '..;:i<."', 'j"',-"~: ï.q o 12 Marital Status o 8 Rent o 11 Products Liability o 13 Paternity o 9 Taxation o 12 Strict Liability o I Brokerage o 14 Spousal Support o 10 Zoning o 13 Trespass and/or Waste o 2 Commercial Paper o 15 Other o 11 Other o 14 Other o 3 Construction o 4 Employment ae.'mis '"',sr",,:"" elhûüpüs "~::,i~', ()ifanqáf y ", ' J.GWills & Estates a 5 Insurance o 1 Constructive Trust o 1 City of Mount Vernon o 1 Accountmg o 6 Real Property o 2 Debtor and Creditor Charter f.orl29 o 2 Discovery o 7 Sales o 3 Declaratory Judgment o 2 Eminent Domain Procedure o 3 Probate/Administration o 8 Secured o 4 Election Law Law 207 o 4 Trusts o 9 Other o 5 Notice of Claim o 3 General Municipal Law o 5 Other o 6 Other 712 o 4 Labor Law 220 o 5 Public Service Law 128 o 6 or 170 Other ~,-' " ",,' ',. 8 of 12

9 I I Paper Appealed From (check one only): o Amended Decree o Determination X Order o Resettled Order o Amended Judgment o Finding o Order and Judgment o Ruling o Amended Order o Interlocutory Decree o Partial Decree o Other (specify): o Decision o Interlocutory Judgment o Resettled Decree o Decree o Judgment o Resettled Judgment Court: Supreme County: Rockland Dated: June 25, 2018 Entered: June 25, 2018 Judge (name in full): Thomas E. Walsh, II, J.S.C. Index No.: /2016 Stage: X Interlocutory o Final o Post-Final Trial: o Yes o No If Yes: a Jury o Non-Jury I 'I ' I l ' ~ I I ~ I Are any unperfected appeals pending in this case? o Yes X No. If yes, do you intend to perfect the appeal or appeals covered by the annexed notice of appeal with the prior appeals? o Yes o No. Set forth the Appellate Division Cause Numbers(s) of any prior, pending, unperfected appeals: Commenced by: o Order to Show Cause o Notice of Petition o Writ ofhabeas Corpus Date Filed: Statute authorizing commencement of proceeding in the Appellate Division: I ''I I ~ * 'I 'I Court: County: Judge (name in full): Order of Transfer Date: ~ ~ 1 g ~ Court: Judge (name in full): County: Dated: I. I I I I 'I I' I ' l l ~ I ~ I ~ II ' I Description: If an appeal, briefly describe the paper appealed from. If the appeal is from an order, specify the relief requested and whether the motion was granted or denied. If an original proceeding commenced in this court or transferred pursuant to CPLR 7804(g), briefly describe the object of the proceeding. If an application under CPLR 5704, briefly describe the nature of the ex parte order to be reviewed. The Defendants-Appellants appeal from each and every portion of the Decision dated June 25, 2018 Order of Judge Thomas E. Walsh which denied summary judgment in which defendants Martin S. Rutstein and Brenda Rutstein, asserted that the plaintiff did not establish the liability against the defendants; and that the plaintiff was the sole proximate cause of the accident as she tripped over an open and obvious condition; and that the defendants neither created the condition nor had actual or constructive notice of the condition. Amount: If an appeal is from a money judgment. Specify the amount awarded. Issues: Specify the issues proposed to be raised on the appeal, proceeding or application for CPLR 5704 review. 9 of 12

10 Issues Continued: I I I ~ I Instructions: Fill in the name of each party to the action or proceeding, one name per line. If this form is to be filed for an appeal, indicate the status of the party in the court of original instance and his, her, or its status in this court, if any. If this form is to be filed for a proceeding commenced in this court. Fill in only the party's name and his, her, or its status in this court. Examples of a party's original status include: plaintiff, defendant, petitioner, respondent, claimant, defendant/third-party plaintiff, third-party defendant and intervenor. Examples of a party's Appellate Division status include: appellant, respondent, appellantrespondent respondent-appellant, petitioner, and intervenor. No. Party Name Original Status Appellate Division Status 1 ANNA T]HIN Plaintiff Respondent 2 MARTIN S. RUTSTEIN Defendant Appellant 3 BRENDA RUTSTEIN Defendant Appellant I of 12

11 ~ I I ' I I I Instructions: Fill in the names ofthe attorneysor firms of attorneysfor the respectiveparties. If this form is to be filed with the notice of petition or order to show cause by which a special proceeding is to be commencedin the Appellate Division. only the nameof the attorney for the petitioner needbe provided. In the event that a litigant representsherself or himself. the box marked "Pro Se" must be checkedandthe appropriateinformation for that litigant must be supplied in the spacesprovided. Attorney/Firm Name: ARGYROPOULOS& ASSOCIATES, LLC Address: Broadway, Suite 202 City: Astoria State: NY Zip: Telephone No.: (718) Attorney Type: X Retained oassigned a Government o Pro Se a Pro Hac Vice Party or Parties Represented 1 Plaintiff (setforth party number(s) from table above or from Form C): Attorney/Firm Name: VINCENT1ACESTE,ESQ. Address: 305 Old Tarrytown Road City: White Plains State: NY Zip: Telephone No.: (914) Attorney Type: X Retained o Assigned o Government o Pro Se o Pro Hac Vice Party or Parties Represented (set forth party number(s) from table aboveor from Form C): 2 Defendants Attorney/Firm Name: Address: City: State: Zip: Telephone No.: Attorney Type: Retained o Assigned o Government a Pro Se o Pro Hac Vice Party or Parties Represented Defendants (set forth party number(s) from table aboveor from Form C): Attorney/Firm Name: Address: City: State: Zip: Telephone No.: Attorney Type: o Retained o Assigned o Government o Pro Se o Pro Hac Vice Party or Parties Represented (setforth party number(s) from table aboveor from Form C): Attorney/Firm Name: Address: City: State: Zip: Telephone No.: Attorney Type: o Retained o Assigned o Government o Pro Se o Pro Hac Vice Party or Parties Represented (setforth party number(s) from table aboveor from Form C): I T'lleFtts@ty this fðnsèis Interve1 ' - '" +4/"%Atra+ w ~ P 4'"s 11 of 12

12 AFFIDAVIT OF SERVICE STATE OF NEW YORK ) COUNTY OF WESTCHESTER ) ) ss: MICHELE A. GANNON, being duly sworn, deposes and says: That she is a secretary to Vincent J. Aceste, Esq., attorney for defendants MARTIN S. RUTSTEIN and BRENDA RUTSTEIN, and I am not a party to the action. That deponent is over 18 years of age and resides in Rockland County, State ofnew York. That on the G day of June, 2018, she served the within NOTICE OF APPEAL AND REQUEST FOR APPELLATE DIVISION INTERVENTION upon: ARGYROPOULOS & ASSOCIATES, LLC Attorneys for Plaintiff Broadway, Suite 202 Astoria, New York [XX] by electronically filing a true copy thereof under the exclusive care and custody of the New York Electronic Filing System within New York State, addressed to each of the following persons at the last known registered address set forth after each name. [ ] by depositing a true copy of same securely in a postpaid wrapper in the official P.O. Box located at 305 Old Tarrytown Road, White Plains, New York, 10603, and directed to the above attorneys at their addresses listed above. i(./ Pv>l' ",!; /;" yf,,y'y~.'" 7 MÍCI-ÍE E A. ÖAN ON S4worn to before me this day of June, 2018! TAl I PUBLIC VINCENT J. ACESTE Notary Public, State of New No. Yoffs Qualified in Westchester rnmission Expires County August 3", 20 t 12 of 12