FILED: NEW YORK COUNTY CLERK 01/12/ :45 PM INDEX NO /2014 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 01/12/2017

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1 FILED: NEW YORK COUNTY CLERK 01/12/ :45 PM INDEX NO /2014 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 01/12/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK _«_ «._..._.._.._... «...,,» _.... «._ _ -._.... 'V' RAYMOND SCHWARTZBERG & ASSOCIATES, PLLC Index No /2014 and RAYMOND SCHWARTZBERG, Individually, AFFIRMATION BY TRIAL Plaintiffs, COUNSEL, DANIEL T. -against- SALTUS, IN SUPPORT OF NOTICE OF CROSS- MOTION FOR SUMMARY GRIND, LLC, STAR CITIES PLUMBING & HEATING JUDGMENT CORP., THE TRAVELERS COMPANIES, INC., Defendants. DANIEL T. SALTUS, an attorney duly licensed to practice law before the Courts of the State of New York, hereby affirms the following statements to be true based upon file contents and my knowledge of the case under the penalties provided by law: I am trial counsel, appointed following a period of self-representation of the plaintiff by Raymond Schwartzberg, Esq. This Affirmation, and the multiple exhibits annexed hereto, are submitted in support of a cross-motion seeking the granting of summary judgment against only one defendant, STAR CITIES PLUMBING & HEATING CORP., the said relief being the same as sought by the primary motion herein made by the co-defendant, GRIND, LLC. The primary motion herein by GRIND was timely. The instant motion, although made more than 120 days following the filing of the Note of Issue, seeks summary judgment on nearly identical grounds against STAR ITIES PLUMBING & HEATING CORP. as set forth and sought by the primary movant, GRIND, LLC, and should be considered pursuant to the authority set forth in the cases of Derrick v. North Star Orthopedics. PLLC. 121 A.D.3d : He Ping Shao. Cao Zhao Wei. 118 A.D.3d943, 944; Grande v. Peterov. 39 A.D.3d 590, of 6

2 The recitation of the relevant law is sufficiently set forth in the primary motion in regard to the standard for summary judgment. Similarly, so as to avoid repetition, the extensive exhibits set forth in the primary motion are not repeated here as attachments, to avoid unnecessary cumbersome presentations, and are therefore incorporated by reference as if fully set forth herein. In addition, attached hereto and made a part hereof, is the affidavit of Chris White (Exhibit 1). Chris White is the installer who was hired by the co-defendant, GRIND, LLC, subsequent to the subject flood, to correct the faulty and defective installation which created and was the cause of the happening of the subject flood and damage. In detail, there is set forth what the original installer who performed the installation did inadequately and improperly as the employee of STAR CITES PLUMBING & HEATING CORP., as then hired by GRIND, LLC. A critical element therein was to the effect that even if the plastic tube which came with the subject water cooler was to be utilized, there was a failure to have same secured into the pipe of the building which was the water source by a watertight seal compressing the water cooler fitting tightly enough so it would hold when subject to usage and pressure thereon. As well, there is attached hereto (Exhibit 2) the affidavit of Frank Kelly, the building engineer of 1412 Broadway as employed on August 16 and 17,2014. He sets forth in detail, with further specifics, what was wrong as to the installation as done by STAR CITIES PLUMBING & HEATING CORP., in regard to such an installation of equipment into the building's water supply pipe coming out of the building wall, on the GRIND, LLC leased premises on the 22nd Floor for which there was no permission, no notification from tenant to landlord, and no supervision whatsoever of an impermissible installation procedure and of a faulty installation, in details set forth accordingly. 2 of 6

3 Further attached hereto (Exhibit 3) is the affidavit of Norbert Soussan, the building manager of 1412 Broadway. Mr. Soussan further details the incorrectness of the manner of installation and the lack of awareness or notification to the management to enable supervision or review of the attempt to install the subject water cooler with tubing and connection material unsuited for commercial high rise building utilization as subject to use, elements, and water pressure and, further, in a manner that was foreseeably hazardous due to the methods, manner and materials utilized, as well as the methods, manner and materials not utilized so as to properly install the involved water cooler and tubing as it was caused to be improperly and hazardously connected to a building pipe water supply. As well, there is attached hereto (Exhibit 4) the affidavit of facts of Raymond Schwartzberg, who is the principal of the plaintiff herein. In addition to those statements referred to by the primary movant in regard to the Examination Before Trial of Raymond Schwartzberg, there is the additional point raised in regard to the testimony and legal responsibility of GRIND, LLC. The statement in the Examination Before Trial of Mr. Singer (GRIND's Exhibit F) that GRIND was open "only Monday to Friday" and not open on Saturdays or weekends is a falsehood. Mr. Schwartzberg, being the downstairs tenant, knew and observed prior to August 16 and 17, 2014 that GRIND, LLC was open weekends, specifically it was open on Saturdays until late afternoon/early evening. This is more significant in regard to any element of responsibility of GRIND, LLC, as opposed to being relevant as to the responsibility herein of STAR CITIES PLUMBING & HEATING CORP. Further, it is not of any significance to the plaintiff whether GRIND, LLC bears responsibility for having created or having had constructive notice of the potential hazard of the flood, or of the flood occurrence itself, on Saturday afternoon/early evening and is fully indemnified by the otherwise fully liable co-defendant, STAR CITIES PLUMBING & HEATING CORP., or if STAR CITIES PLUMBING & HEATING CORP. is directly liable to the plaintiff for having negligently created the hazardous condition which caused the damage. 3 of 6

4 The Examination Before Trial of the co-owner of STAR CITIES PLUMBING & HEATING CORP., Robert Fedorowicz (movant's Exhibit G) demonstrated that the installer, Fabian Pietrzykowski, was not supervised and neither of those two was a licensed plumber, and Fabian was only watched in the past by Mr. Federowicz doing a job connecting copper pipes and responded at Page 25, Line 25 that he did not know until today (the EBT date) why it happened, and continuing on at Page 26, Line 16 that he still did not know "why it happened." Mr. Federowicz said only that Fabian connected the water supply like usual taking tubing and connected one end of the tube to the water cooler and the other end of the tubing to the water pipe supply. As to whether that was supposed to be secured in some way he indicated that it does not have to be secured, but when asked why not, he said that he does not know how to answer this question and that Fabian went ahead and connected the plastic tube in the manner as Fabian told Mr. Federowicz he did. Further, at (page 30, Lines 20-25), Mr. Federowicz did not supervise or attend the installation or ever observe it, or know if it was reviewed or supervised by a Mr. DiMaggio, the only licensed plumber claimed, in some unclear way, to be associated with STAR CITIES PLUMBING & HEATING CORP. The Examination Before Trial of another co-owner, Hans Ingram (movant's Exhibit H) was held and revealed little or nothing to explain the faulty and hazardous installation, the reason for the occurrence, or the inadequate installation activity of Fabian, the installer. An Examination Before Trial of Fabian Pietrzykowski, who was no longer employed at STAR CITIES PLUMBING & HEATING CORP., was scheduled, and since he was no longer employed by STAR CITIES PLUMBING & HEATING CORP., and then a non-party employee, his last known address pursuant to a duly served Notice was requested and then provided. A subpoena and Notice of EBT was served upon Fabian Pietrzykowski for a return date of May 25, 2016 at 2:00 p.m. at Deitz Court Reporting at 315 Madison Avenue, 9th Floor, New York, New York. On May 25, 2016 counsel for this office, counsel for GRIND, LLC and STAR CITIES PLUMBING & HEATING CORP. timely appeared at the office of the Court Reporter in Manhattan, waited for an hour, and Fabian Pietrzykowski did not appear, or call to cancel, and no deposition was held. Issues arose as to what Fabian's true last known 4 of 6

5 address was and where he could be found and served, and following further investigative activity, bis deposition was never held. Similarly, an Examination Before Trial of one, Calogero DiMaggio, a purported licensed plumber claimed to be associated in some unclarified way with STAR CITIES PLUMBING & HEATING CORP. was noticed to be held, but adjourned. Thereafter such EBT was deferred, then not held, upon agreement between counsel that no testimony at any such deposition, if held, would result in any further information being obtained other than as obtained at the depositions from the two (2) principals of STAR CITIES PLUMBING & HEATING CORP. that were deposed. See (Exhibit 5) attached hereto. WHEREFORE, affiant requests that the instant application be granted. Dated: New York, New York January 12, 2017 Daniel T. Saltus 5 of 6

6 LIST OF EXHIBITS Exhibit 1 - Affidavit of Chris White Exhibit 2 - Affidavit of Frank Kelly Exhibit 3 - Affidavit of Norbert Soussan Exhibit 4 - Affidavit of Raymond Schwartzberg Exhibit 5 - Letter of this office dated April 6, of 6