FILED: NASSAU COUNTY CLERK 01/12/ :42 PM INDEX NO /2016 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 01/12/2018

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU X LAURA STAGNITTA, Plaintiff ' -against- MANCHESTER I, LLC., X Oh EUMEM REOUESTED REPLY AFFIRMATION IN SUPPORT OF MOTION TO AMEND/SUPP BILL OF PARTICULARS Index#: /2016 Defendant X X WILLIAM J. SANYER, an attorney duly admitted to practice before the courts of this State, affirms the truth of the following under the penalties of perjury: 1. I am associated with the law firm of DAVID HOROWITZ, P.C., attorneys for (" Plaintiff Laura Stagnitta ("Plaintiff or Ms. Stagnitta") and am fully familiar with all of the pleadings and proceedings had in this matter based on the file maintained in my office. 2. This reply affirmation is submitted in further support of the plaintiff's motion to amend and/or supplement her bill of particulars to plead defendant's building code violations as reflected in the plaintiff's proposed second amended verified bill of particulars annexed as Exhibit A to plaintiff's moving papers. This reply is also responsive to defendant's opposition. 3. The defendant's personal attack on the plaintiff suggesting plaintiff was "willful" or that her position is "frivolous" requires little response as there is no evidence whatsoever of willful conduct. Defendant's suggestion that plaintiff intentionally omitted to mention CPLR 3042 as part of her phantom dilatory strategy further demonstrates defendant's weak position and a misunderstanding of the law. It is an ineffective strategy to engage in ad hominem attacks of your adversary where the substance of the argument rings hollow. 4. First, on August 4, 2015, Plaintiff, an EMT, and single mother, sustained injuries to 1 of 8

2 her ankle/foot requiring surgical intervention and disability from work, when she was caused to trip and stumble due to the defendant's hazardous raised door saddle. Thus, there is nothing frivolous about plaintiff's permanent partial disability and position. 5. Next, CPLR 3042 is not applicable at this juncture as the note of issue has been filed. The proper avenue is for plaintiff to seek leave from this Court under CPLR Under CPLR 3025(b) and (c), plaintiff's application for leave to supplement and/or amend the bill of particulars is timely. Your Honor should therefore grant the plaintiff's application as same will be just. There is no prejudice whatsoever to the defendant in permitting the pled code sections. 7. To begin, the law permits the plaintiff to amend the bill of particulars "at any time by leave of court" during the litigation as long as the defendant is not prejudiced. This includes post note of issue. CPLR 3025(b)(Practice Commentaries). 8. New York Courts "freely" grant leave to supplement and/or amend the bill of particulars upon such terms that are just. CPLR 3025(b); Perez v. Hi-Mike, Inc., 216 A.D.2d 447 (App. Div. 2d 2 Dep't 1995); Rosicki, Rosicki 0 Assoc., P.C. v. Cochems, 59 A.D.3d 512, 514 (App. Div. 2d Dep't 2009). Moreover, the Court may permit pleadings to be amended "before or h after judgment to conform them to the evidence, upon such terms as may be just..." See CPLR 3025(c); and See CPLR 2001("at any stage of an action..., the court may permit a mistake, omission, defect or irregularity,... to be corrected, upon such terms as may be just, or if a substantial right of a party is not prejudiced..., the mistake, omission, defect or irregularity shall be disregarded..."). 9. As such, it would not be an abuse of discretion for this Court to consider the pled 2 of 8

3 code sections raised for the first time post note of issue [Perez v. Hi-Mike, Inc., 216 A.D.2d 447 (App. Div. 2d 2 Dep't 1995)]; or in opposition to a post note of issue motion for summary judgment, [Zuluaga v. P.P.C. Construction, LLC, 45 A.D.3d (App. Div. 1" Dep't 2007), Kelleir v. Supreme Industrial Park, LLC, 293 A.D.2d 513 (App. Div. 2d Dep t 2002), or during trial [Kimso, supra 24 N.Y.3d 403}, as long as the defendant is not prejudiced. See CPLR In this case, the defendant will not be prejudiced. The Court of Appeals made clear in Kimso Apartments LLC, that "in the context of a request to amend a pleading, prejudice is more than the mere exposure of the party to greater liability, rather there must be some indication that the party has been hindered in the preparation of the party's case or has been prevented from taking some measure in support of its position." Kimso Apartments LLC v. Gandhi, 24 N.Y.3d 403 (N.Y. 2014)(Reversing Appellate Division's denial of a shareholder's application to amend as an abuse of discretion where there is no prejudice). 11. In that regard, defendant's contention that its liability based on common law negligence is an entirely different legal theory than its liability based on the pled statutory violations in an effort to demonstrate prejudice, is erroneous. Defendant's exposure to liability for a statutory violation is not prejudicial in the context of a plaintiff's request to amend her bill of particulars. Kimso Apartments LLC, supra, 24 N.Y.3d 403. Indeed, the pled code sections relate to the raised door saddle and defendant's unreasonable conduct in failing to maintain its property in a safe manner. Thus, the violation of the pled codes sections are merely evidence of defendant's negligence in failing to reasonably maintain the subject door saddle and only amplify plaintiff's factual allegations and theory of negligence. There is nothing new. 12. Furthermore, defendant has not been prevented from preparing its defense. Kimso 3 of 8

4 Apartments LLC, supra, 24 N.Y.3d 403. In fact, defendant has been on notice of the plaintiff's factual allegations (raised door saddle creating a trip hazard) and plaintiff's negligence theory since the commencement of the action. The hazardous raised door saddle has not changed and is in defendant's control. Moreover, it was not until after the note of issue was filed, that defendant hired an expert to inspect the raised door saddle; measure the door saddle; and photograph the door saddle. And, defendant's expert reviewed applicable building codes to prepare an expert report in support of its motion for summary judgment. It is therefore beyond cavil that the plaintiff's requested relief cannot and will not hinder the defense of this case. Kimso Apartments LLC, 24 N.Y.3d In fact, this Court can always take judicial notice of all statutory codes, rules, regulations and ordinances that govern a case and defendant cannot claim prejudice. 14. Plaintiff is well aware that it is her burden at the time of trial. However, we are not at trial. It is not the hour. Defendant's motion for summary judgment is returnable January 28, 2018 and a pretrial conference is scheduled for January 16, As such, there is no indication that the defendant has been prejudiced to warrant denial of plaintiff's application for leave to supplement and/or amend the bill of particulars. 16. On the other hand, to preclude the plaintiff, especially in the absence of clear prejudice to the defendant, epitomizes injustice. It would be unjust to deny plaintiff's application at this juncture where defendant was well aware of plaintiff's negligence theory and factual allegations which have not and will not change. Ackerman v. City of New York, 22 A.D.2d 790 (App. Div. 2d Dep't 1964); Kimso Apartments LLC v. Gandhi, 24 N.Y.3d 403 (N.Y. 2014). 17. It should be noted that plaintiff did not provide expert witness information prior to 4 of 8

5 filing of the note of issue based on defendant's failure to provide its own expert witness information responsive to plaintiff's demand dated September 15, 2016 which was 10 months prior to filing the note of issue. (See, Plaintiff's Reply Exhibit A, Notice of D&I dated and Affidavit of Service of ). 18. Finally, defendant's application to vacate the note of issue should be denied as said application is untimely and defendant has not shown good cause to warrant vacature of the note of issue. See 22 NYCRR (e)(" Within 20 days after service of a note of issue and certificate of readiness, any party to the action or special proceeding may move to vacate the note of issue, upon affidavit showing in what respects the case is not ready for trial, and the court may vacate the note of issue if it appears that a material fact in the certificate of readiness is incorrect...after such period..., no such motion shall be allowed except for good cause shown...") The note of issue was filed on July 14, Defendant's application to vacate, made within its opposition dated January 8, 2018, is over 5 months late and therefore untimely. Also, there is no new evidence that could not have been discovered prior to the filing of the note of issue demonstrating good cause. In fact, the defendant is the owner of the property and door saddle. The door saddle has not changed. The applicable building codes have not changed and defendant could have reviewed same prior to the filing of the note of issue. Therefore, vacating the note of issue to permit the defense to respond to plaintiff's expert report at this juncture is not warranted. S_ee 22 NYCRR (e). CONCLUSION 20. In light of the relevant case law, statute and the record before this Court, Your Honor 1 Plaintiff has no objection to defendant amending its 3101(d) expert architectural exchange per CPLR 3025(b) while the case remains on the trial calendar. 5 of 8

6 should permit the plaintiff to supplement and/or amend the verified bill of particulars to add code violations and defendant's negligent conduct consistent with the plaintiff's engineering report because there is no prejudice, no surprise and the amendment will not change plaintiff's theory of the case nor does plaintiff alleged new facts. 21. This Court should exercise its broad discretion and grant plaintiff's application to amend her verified bill of particulars. (See, Movant's Motion, Exhibit A) Also, Your Honor should consider plaintiff's engineer report of Mr. Schwartzberg served in accordance with CPLR 3101(d). The note of issue should not be vacated. WHEREFORE, your affirmant respectfully requests that this Court grant plaintiff's application in its entirety and for such other and further relief as the court deems just and proper. Dated: New York, New York January 12, 2018 L Yours, etc. DAVID HOROWITZ, P.C. Attorney for Plaintiff 171 Madison Avenue, Suite 1300 New York, York ' By: William J. yer To: CONNOR, CONNOR, H1NTZ & DEVENEY, LLP. Attorneys for Defendant MANCHESTER I, LLC One Huntington Quadrangle, Suite IC10 Melville, New York of 8

7 AFFIDAVIT OF SERVICE STATE OF NEW YORK } ss: COUNTY OF NEW YORK } Bazhena Odikadze, being duly sworn, deposes and says that she is not a party to this action, is over the age of 18 years, and resides in the COUNTY OF KINGS, CITY AND STATE OF NEW 12* YORK, and that on the day of January, 2018, she served the within REPLY AFFIRMATION IN SUPPORT OF MOTION TO AMEND/SUPP BILL OF PARTICULARS on the following attorneys, at the address designated by said attorneys for that purpose by depositing a true copy of same enclosed in a postpaid, properly addressed wrapper in an official depository under the exclusive care and custody of the United States Post Office within the State of New York and ECF: TO: CONNOR, CONNOR, HINTZ & DEVENEY, LLP Attorneys for Defendant MANCHESTER I, LLC One Huntington Quadrangle, Suite 1C10 Melville, New York Tel.: (631) e --' zheni ' Odikadze Sworn to before me this 12* 12 day of January, 2018 Notary ti' c ' I. '.1,,,/ 'i.'-, ~ '1l gn 7 of 8

8 Index No.: /2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU.... LAURA STAGNITTA, Plaintiff, -against- MANCHESTER I, LLC., Defendant REPLY AFFIRMATION IN SUPPORT OF MOTION TO AMEND/SUPP BILL OF PARTICULARS.... DAVID HOROWITZ, P.C. Attorneys for Plaintiff 171 Madison Avenue, Suite 1300 New York, New York (212) Pursuant to 22 NYCRR , the undersigned, an attorney admitted to practice in the courts of the State of New York, certifies that, upon information and belief and reasonable inquiry, the contentions contained in the annexed document are not frivolous. Dated: New York, New York January 12, 2018 Print Signer's name: am J. anyer, Esq.. TO: CONNOR, CONNOR, HINTZ & DEVENEY, LLP Attorneys for Defendant MANCHESTER I, LLC One Huntington Quadrangle, Suite 1C10 Melville, New York Tel.: (631) I 8 of 8