FILED: ALBANY COUNTY CLERK 02/15/ :30 PM INDEX NO. A01268/2014 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/15/2017

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1 STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY NAKIRA HAYNES, Index No.: 3307/2013 Plaintiff, -against- MARK WILLIAMS, TIMOTHY SPICKERMAN, J. PETER MCPARTLON, DANlEL W. BOWLIN, JULIANNE BOWLIN, POLLY N. RUTNIK D/B/A CLINTON AVENUE ASSOCIATES, Defendants. RASHIEK HAYNES, Plaintiff, Index No.: A01268/2014 -against- MARK WILLIAMS, TIMOTHY SPICKERMAN, J. PETER MCPARTLON, ROGER A. PLOOF, DANlEL W. BOWLIN, JULIANNE BOWLIN, POLLY N. RUTNIK D/B/A CLINTON AVENUE ASSOCIATES, Defendants. DEFENDANT J. PETER MCPARTLON S MEMORANDUM OF LAW IN SUPPORT OF HIS MOTION FOR SUMMARY JUDGMENT ECKERT SEAMANS CHERIN & MELLOTT, LLC Attorneys for Defendant J. PETER MCPARTLON 10 Bank Street, Suite 700 White Plains, NY Tel: (914) Fax: (914) of 13

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii PRELIMINARY STATEMENT... 1 STATEMENT OF FACTS... 3 ARGUMENT... 5 NO LIABILITY CAN BE INCURRED AS THE PLAINTIFF FILED HIS ACTION OUTSIDE OF THE APPLICABLE STATURE OF LIMITATIONS PERIOD... 7 A. Defendants Satisfied Their Summary Judgment Burden... 5 B. CPLR 214(c)(2) Does Not Extend The Statute of Limitations For Plaintiff... 6 C. CPLR 214(c)(4) Does Not Extend The Statute of Limitations For Plaintiff... 7 CONCLUSION... 8 i 2 of 13

3 TABLE OF AUTHORITIES Cases Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 925 (1986)... 5 Friends of Animals, Inc. v. Assoc. Fur Mfrs., 46 N.Y.2d 1065, 1067, 416 N.Y.S.2d 790, 792 (1979)... 5 Germantown Center v. Clark, 100 N.Y.2d 202, , 7 Giordano v. Market America Inc., 15 N.Y.3d 590, Hedlund v. County of Tompkins, 235 A.D.2d 980, In the Matter of New York County DES Litigation, 89 N.Y.2d 506, Sweeney v. General Print, 210 A.D.2d Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 597 (1980)... 5 Rules C.P.L.R C.P.L.R. 214(b)... 8 C.P.L.R. 214(c)... 2 C.P.L.R. 214(c)(2)... 6, 7 C.P.L.R. 214(c)(4)... 1, 7, 8 C.P.L.R. 214(5)... 1 C.P.L.R ii 3 of 13

4 PRELIMINARY STATEMENT This action arises out of plaintiff Rashiek Haynes claim of exposure to lead paint while residing and/or visiting several buildings in the Greater Albany area from 1992 through More specifically, the alleged residential history is as follows: Dates Location 1/31/90 Birth 3/92-7/21/ Alexander Street 8/1/93-3/94 72 Park Avenue 3/94-2/28/ Grand Street 3/1/95 9/30/ Grand Street 8/1/96 10/31/ Madison Avenue Plaintiff was born on January 31, He was diagnosed with lead poisoning on March 19, Pursuant to CPLR 214(5), actions for personal injuries are to be commenced within three years from the time that the cause of action occurred. Plaintiff commenced this action over twenty one years later on December 16, 2014, when he was 24 years, 10 months and 16 days of age. Since Mr. Haynes was a minor when he was diagnosed with lead poisoning and his cause of action accrued, the time within which he was mandated to file suit was extended pursuant to CPLR 208 to three years after his eighteenth birthday or January 31, Plaintiff s filing on December 16, 2014 was nearly four years after the applicable stature of limitations period expired. In his complaint, plaintiff alleges that his filing of suit is timely pursuant to CPLR 214(c)(2) and CPLR 214(c)(4). Those provisions toll the applicable stature of limitations in 1 4 of 13

5 instances where the injury is caused as a result of the latent effects of exposure to a substance. As discussed infra, the plaintiffs alleged injuries were not latent but rather immediate and as a result he is not entitled to the tolling provisions contained within of CPLR 214(c). 2 5 of 13

6 STATEMENT OF FACTS The procedural history of this action is set forth with accompanying exhibits in the affidavit of Michael J. Burke, Esq., submitted in support of the instant motion. Plaintiff Rashiek Haynes was born on was born on January 31, (See para. 1 of Plaintiff s Response to Defendant McPartlan s Notice to Admit, annexed as Exhibit H to the Affirmation of Michael J. Burke Burke Affirmation. ) Plaintiff at a very young age recalls picking paint off the wall where he lived and putting paint chips in his mouth. (See deposition of plaintiff dated 12/14/16 at page 137 lines 12-16, annexed as Exhibit H to the Burke Affirmation.) On March 19, 1993, plaintiff received a Primary Diagnosis of lead poisoning by Dr. Kroopnick. (See Albany County Health Department Information Sheet which was marked as Exhibit C at the Deposition of Lolita Haynes on 12/13/16, annexed as Exhibit K to the Burke Affirmation.) During the period while the plaintiff was living on Alexander St., he was hospitalized at St. Peter s Hospital for his lead paint condition. (See Deposition of Lolita Haynes on 12/13/16 annexed as Exhibit I to the Burke Affirmation at page 67 line 17 through page 69 line 6.) Thereafter plaintiff claims that he began to suffer the negative effects of his lead paint exposure from that point up to and including to the time of his deposition. (See Exhibit H to the Burke Affirmation at pages ) Plaintiff turned 18 years of age on January 31, (See para. 2 of Plaintiff s Response to Defendant McPartlan s Notice to Admit annexed as Exhibit H to the Burke Affirmation) 3 6 of 13

7 Plaintiff commenced this action on December 16, (See para. 4 of Plaintiff s Response to Defendant McPartlan s Notice to Admit annexed as Exhibit H to the Burke Affirmation) 4 7 of 13

8 ARGUMENT NO LIABILITY CAN BE INCURRED AS THE PLAINTIFF FILED HIS ACTION OUTSIDE OF THE APPLICABLE STATURE OF LIMITATIONS PERIOD. A. Defendants Satisfied Their Summary Judgment Burden Pursuant to C.P.L.R. 3212, summary judgment must be granted where, viewing the evidence in the light most favorable to the non-moving party, there are no genuine issues of material fact which warrant the case to proceed to trial. To establish a prima facie showing of entitlement to judgment as a matter of law, the moving party must tender[] sufficient evidence to demonstrate the absence of any material issues of fact." Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 925 (1986). Once the movant has established such a prima facie showing, the burden then shifts to the non-moving party to present proof and submit factual matter of an evidentiary nature sufficient to raise a substantial issue of fact requiring a trial. See Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 597 (1980); Friends of Animals, Inc. v. Assoc. Fur Mfrs., 46 N.Y.2d 1065, 1067, 416 N.Y.S.2d 790, 792 (1979). "Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to oppose a motion for summary judgment. Zuckerman, 49 N.Y.2d at 562, 427 N.Y.S.2d at 598. The defendant has tendered admissible evidence establishing his entitlement to summary judgment. The summary judgment motion was supported by signed deposition transcripts, and records authenticated at deposition. Defendant met his burden. See Zuckerman, 49 N.Y.2d at 563, 427 N.Y.S.2d at 598 ( The affidavit or affirmation of an attorney, even if he has no personal knowledge of the facts, may, of course, serve as the vehicle 5 8 of 13

9 for the submission of acceptable attachments which do provide evidentiary proof in admissible form, e.g., documents, transcripts. Such an affidavit or affirmation could also be accepted with respect to admissions of a party made in the attorney's presence. ). B. CPLR 214(c)(2) Does Not Extend The Statute of Limitations For Plaintiff CPLR 214(c)(2) tolls the statute for personal injury caused by the latent effects of exposure to any substance to three years from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier. In this case the plaintiffs injury was discovered within the meaning of CPLR 214(c)(2) as early as March 19, 1993 when plaintiff was diagnosed with lead poisoning and the symptoms arising from same became apparent as opposed to when a connection between his symptoms and exposure to a toxic substance could be recognized. See, In the Matter of New York County DES Litigation, 89 NY 2d 506, 514; Sweeney v. General Print, 210 AD 2d 285, lv denied 85 NY 2d 808 holding that the discovery of the injury occurs when the injured party discovers primary physical condition on which claim is based, and not at time of more complex discovery of both condition and etiology. By his own testimony plaintiff concedes that he not only recalls eating paint chips while he was a minor but also that the effects of same has affected him his whole life. (See Exhibit H to the Burke Affirmation, page 137 lines 12-16; and pages ) The intent of the CPLR 214-c (2.),was to give recourse to plaintiffs injured "where the harm attributable to the toxic substance does not manifest itself until years after the exposure." see, Germantown Center v. Clark, 100 NY 2d 202, 206; Jensen v. General Electric Co. 92 NY 6 9 of 13

10 2d 77, 84 and where a plaintiff might be unaware of his/her the latent injuries until after the limitations period had expired. At bar, the injury to plaintiff commenced and continued from the time of his exposure to lead paint from the apartments he lived in from , thus his injury could not have resulted from the latent effects of exposure to a toxic substance. The mere presence of lead in plaintiff's body does not equate with an "effect" caused by the substance, rather, it must produce a latent injury (Germantown, supra). Plaintiff s injuries as plead are not latent but were active and continuing from the time of the alleged exposure and thus he is not entitled to tolling under CPLR 214(c)(4). C. CPLR 214(c)(2) Does Not Extend The Statute of Limitations For Plaintiff By its terms CPLR 214(c)(4.) provides an additional year to file suit where discovery of the cause of injury is alleged to have occurred less than 5 years after discovery of the injury, or when acting with reasonable diligence the cause of injury should have been discovered (whichever is first) provided that plaintiff can prove that technical, scientific or medical information did not exist sufficient to ascertain the cause of his injury prior to the expiration of the limitation period (emphasis added). Clearly, the purpose of this provision is to provide additional time for plaintiffs to commence an action where "the cause of the injury" has not been discovered. See, Giordano v. Market America Inc. 15 NY 3d 590, 600. At bar, however, the cause of the injury to plaintiff was discovered and was specifically known to be lead in paint which plaintiff had been exposed to and for which testing was conducted. Further, there is no dispute that information has long existed especially during the period within which the action was to be commenced, concerning the effects of lead paint exposure and poisoning. Indeed, plaintiff s Bill of Particulars is replete with information concerning the injurious effects 7 10 of 13

11 of lead paint which have long been in existence. (See Plaintiff s Verified Bill of Particulars annexed as Exhibit L to The Burke Affirmation.) That these effects have long been discoverable is further evidenced by the Albany County Health Department Payment Information Sheet executed by plaintiff s mother in which she acknowledges she has been told the causes and effects of lead paint exposure. (See Exhibit K to Burke affirmation) The existence of such programs put forward by Albany County" clearly reflects that knowledge and information to discover the cause of the injury was available" See, Hedlund v.county of Tompkins 235 AD 2d 980, 982). Plaintiff's period to commence this action is not extended by CPLR 214-c (4.)Whitney v. Agway, Inc. 238 AD 2d 782, 785; Hedlund v. County of Tompkins, supra,980, 982. CONCLUSION For the above stated reasons, Defendant respectfully request the Court enter an order granting summary judgment in favor of Defendant and dismissing plaintiff s complaint and the cross claims of co-defendants, together with such other relief as the Court deems just and proper. Dated: White Plains, New York February 15, 2017 Yours, etc. /s/ Michael J. Burke, Esq. Michael J. Burke, Esq. ECKERT SEAMANS CHERIN & MELLOTT, LLC Attorneys for Defendants JOHN MERCER and BETTY ANN MERCER 10 Bank Street, Suite 700 White Plains, NY (914) of 13

12 TO: Mo Athari, Esq. ATHARI & ASSOCIATES, LLC Attorneys for Plaintiff 2 Oxford Crossing, Suite 2 New Hartford, NY (315) Brian D. Casey, Esq. BARCLAY DAMON, LLP 80 State Street Albany, NY Attorneys for Defendants Daniel W. Bowlin and Julianne Bowlin Michael L. Boulhosa, Esq. WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP 1133 Westchester Avenue White Plains, NY Attorneys for Defendants Daniel Bowlin & Julianne Bowlin Brian W. Matula, Esq. COOPER ERVING & SAVAGE LLP 39 North Pearl Street Albany, NY Attorneys for Defendants Mahadaye Khan & Abasali Khan John S. McCaffrey, Esq. WILLIAMSON, CLUNE & STEVENS 317 North Tioga Street Ithaca, NY Attorneys for Defendants Mark Williams and Timothy Spickerman Marc J. Kaim, Esq. BAILEY, KELLEHER & JOHNSON, P.C. Pine West Plaza, Suite 507 Washington Avenue Extension Albany, NY Attorneys for Defendant Polly N. Rutnik d/b/a Clinton Avenue Associates 9 12 of 13

13 CARL J. COCHI, ESQ. Mayro Building 239 Genesee Street, Suite 104 Utica, NY Attorney for Defendant Roger A. Ploof Christian J. Soller, Esq. HODGSON RUSS, LLP 677 Broadway, Suite 301 Albany, NY Attorneys for Defendant J. Peter McPartlon of 13

FILED: ALBANY COUNTY CLERK 02/15/ :30 PM INDEX NO. A01268/2014 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 02/16/2017

FILED: ALBANY COUNTY CLERK 02/15/ :30 PM INDEX NO. A01268/2014 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 02/16/2017 STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY NAKIRA HAYNES, Index No.: 3307/2013 NOTICE OF MOTION J. PETER MCPARTLON, DANlEL W. BOWLIN, JULIANNE BOWLIN, POLLY N. RUTNIK RASHIEK HAYNES, Index No.: A01268/2014