FILED: NEW YORK COUNTY CLERK 01/19/2017 10:33 PM INDEX NO. 151117/2013 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 01/19/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X THOMAS BANKS, Plaintiff, INDEX NO. 151117/2013 -against- PLAINTIFF S AFFIRMATION IN OPPOSITION BOVIS LEND LEASE, INC., LEND LEASE (US) CONSTRUCTION INC., THE MOUNT SINAI MEDICAL CENTER, INC., THE MOUNT SINAI HOSPITAL, [MOTION SEQ. 002] MORGAN CONSTRUCTION ENTERPRISES, INC., Defendants. X BOVIS LEND LEASE, INC., LEND LEASE (US) CONSTRUCTION INC., THE MOUNT SINAI MEDICAL CENTER, INC., THE MOUNT SINAI HOSPITAL, MORGAN CONSTRUCTION ENTERPRISES, INC., -against- RIGID ELECTRIC, INC., Third-Party Plaintiffs, BEFORE: HON. SCHECTER Third-Party Defendants. X I am an associate with THE FELD LAW FIRM, P.C., attorneys for the plaintiff, and, as such, am fully familiar with the facts and circumstances surrounding this matter. I submit this affirmation in opposition to the motion of the defendants BOVIS LEND LEASE, INC., LEND LEASE (US) CONSTRUCTION INC., THE MOUNT SINAI MEDICAL CENTER, INC., THE MOUNT SINAI HOSPITAL, MORGAN CONSTRUCTION ENTERPRISES, INC., which seeks to strike the Note of Issue. This motion must be denied. The plaintiff properly filed the Note of Issue in compliance with the directives of this Court. Meanwhile, defendants, the owner and general contractor, delayed and waited four years to bring to 1 1 of 8
implead a sub-contractor who allegedly created the dangerous condition which caused plaintiff s accident, despite knowing about this subcontractor since the date of Mr. Banks accident. Finally, the defendants motion is based on an insufficient good faith affirmation, as no good faith attempts were made to resolve the issues raised on their motion at any point in time. This is a lawsuit under Labor Law 241(6) and 200. On July 3, 2012, Mr. Banks was injured when he tripped and fell over broken, loose, and uneven pieces of Masonite debris while working on a construction project of a new MRI Suite facility at Mt. Sinai Medical Center in Manhattan. Mr. Banks suffered tears of the meniscus in his left knee which required surgery. He has chronic persistent pain, weakness, and stiffness in his leg, all of which affects his ability to perform any of his daily activities. He has been unable forced to stop working as a construction electrician, and is unable to earn a living due to this injury. It is anticipated that he will remain totally disabled from work and will require a total knee replacement on his left knee. The Mount Sinai defendants are the owners for the project, and Morgan Construction is the general contract. Third-Party defendant Rigid Electric is Mr. Banks employer, that was hired by Morgan to perform electrical work at the project. PLAINTIFF PROPERLY FILED THEIR NOTE OF ISSUE IN ACCORDANCE WITH THIS COURT S FINAL DISCOVERY CONFERENCE ORDER On December 8, 2016, Plaintiffs properly placed this action on the trial calendar in compliance with the directives of this Court s Order dated October 19, 2016. Pursuant to 22 NYCRR 202.21, a party seeking to vacate the Note of Issue must show that the Note of Issue was defective in some material respect, which defendants have failed to do. The authorizations for plaintiff s prior right knee injury in the 1990s were provided 2 2 of 8
to defendants on July 27, 2016. See Exhibit D to defendants motion. Plaintiff is not in possession of any additional information permitting a response to these demands, as explained in the letter. Plaintiff requested any additional information in defendants possession that might permit a response, but never received any response. Plaintiff is also not in possession of any information regarding any facility that may have kept or stored the records from prior surgery after the surgeon s retirement. These records are now nearly 20 years old, and it is more likely than not that they were destroyed over a decade ago. Defendants arguments along these lines are wasting time and blatantly attempting to delay the plaintiff s case without any good cause. Plaintiff also properly objected to the defendant s overly broad demand for union medical records in the July 27 th, 2016 letter, and defendants failed to follow up with a more specific demand or make a motion to this Court with a proper showing as to what items are sought and how they are material and necessary to this action. Regarding Dr. Bonomo, there were attempts to schedule the examination, but there was difficulty finding a mutual agreeable date with the doctor s office in order to conduct the examination. Notwithstanding, a neurological examination is not necessary for the defense of plaintiff s claims, which involves tears in the left knee with surgery and the need for a total knee replacement. There is no neurological injury claimed, thus Dr. Bonomo s examination cannot be material to the defense of this case, and, at this point, should be precluded by this Court as unnecessary. Plaintiff s trial date also should not be delayed based on defendants implausible claim that they first learned of the newly added third-party, Linear Contracting, at the non-party deposition on December 8 th. The fact is that the defendants, including Morgan Construction, 3 3 of 8
the general contractor, were aware that Mr. Banks tripped on floor protection from the time the accident occurred 5 years ago. Attached as Exhibit A is a copy of the Morgan Construction Accident Report detailing the accident. And Morgan, as the general contractor, hired Linear to put down the floor protection on this job! How can counsel now suggest that Morgan only first learned of Linear through non-party EBT after 4 years of litigation and only after discovery on plaintiff s claims were completed? Given that defendants inexplicably delayed in bringing this action, their claim against Linear should be severed or dismissed entirely. The courts are empowered to judge whether a dilatory impleader poses undue complications for the plaintiff and the other parties. CPLR 1010 authorizes dismissal or separate trial of the impleader claim. This rule requires the court to consider whether the controversy between the third-party plaintiff and the thirdparty defendant will unduly delay the determination of the main action or prejudice the substantial rights of any party. See Siegel, New York Practice, 161, p. 260 (1999). The discovery on plaintiff s claim is finally complete after 4 years of litigation. Mr. Banks is entitled to his day in Court and to receive compensation for his injuries and his inability to earn a living. He should not be forced to wait out years more of discovery with Linear when they could have been a part of this case from the beginning. Defendants Good-Faith Affirmation is Wholly Insufficient and Defendants Made No Good-Faith Efforts to Address Any of the Issues Raised in their Motion Uniform Rule 22 NYCRR 202.7(c) provides: The affirmation of good faith effort to resolve the issues raised by the motion shall indicate the time, place, and nature of the consultation and the issues discussed and any resolutions, or shall indicate good cause why no such conferral with counsel for opposing parties was held. The intention of the rule is to remove from the Court s work load all but the most 4 4 of 8
significant and unresolvable disputes over what has been the most significant and unresolvable disputes over what has been the most prolific generator of pre-motions; discovery issues. A good faith effort means more than an exchange of computer generated form letters or cursory telephone conversations. Significant, intelligent, and expansive contact and negotiations must be held between counsel to resolve any disputes and said efforts must be adequately detailed in the affirmation. See Barber v. Ford Motor Company, 250 AD2d 552 (First Dept., 1998). In the absence of a good-faith affirmation, the court must deny the motion. Fulton v. Allstate Ins. Co., 14 AD3d 380 (1 st Dept., 2005). Defendants affirmation completely fails to address the details required by the statute. This is because no such good faith conferral was ever made. WHEREFORE, it is respectfully requested that this Court deny defendants motion in its entirety, and grant any other relief as to this Court may seem appropriate. Dated: New York, New York January 19, 2017 MICHAEL J. LYNCH 5 5 of 8
TO: CARTAFALSA SLATTERY TURPIN & LENOFF Attorneys for Defendants/Third-Party Plaintiffs THE MOUTN SINAI MEDICAL CENTER, INC. THE MOUNT SINAI HOSPITAL, MORGAN CONSTRUCTION ENTERPRISES, INC. 165 BROADWAY 28 TH FLOOR NEW YORK, NEW YORK 10006 MILBER MAKRIS PLOUSADIS & SEIDEN LLP Attorneys for Third-Party Defendant RIGID ELECTRIC, INC. 3 BARKER AVENUE, 6 TH FLOOR WHITE PLAINS, NEW YORK 10601 6 6 of 8
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK THOMAS BANKS, INDEX NO. 151117/2013 -against- Plaintiff, BOVIS LEND LEASE, INC., LEND LEASE (US) CONSTRUCTION INC.,THE MOUNT SINAI MEDICAL CENTER, INC., THE MOUNT SINAI HOSPITAL, MORGAN CONSTRUCTION ENTERPRISES, INC., Defendants. PLAINTIFF S AFFIRMATION IN OPPOSITION To the best of my knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, the presentation of these papers or the contentions therein are not frivolous as defined in subsection (c) of section 130-1.1 of the Rules of the Chief Administrator (22 NYCRR). Sign Name: Print Name: MICHAEL J. LYNCH The Feld Law Firm P.C. 150 Broadway, Suite 1703 New York, New York 10038 P: (212) 964-4100 F: (212) 964-4295 Service of a copy of the within is hereby admitted by: Dated:, 20. Attorney for. 7 7 of 8
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