NYSCEF. DOC. NO. 13 RECEIVED NYSCEF: 04/27/2018 SUPREME COURT STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------X FRANCISCA PAGUADA RODRIGUEZ, Index No.: 452253/2016 Plaintiff, AFFIRMATION IN -against- SUPPORT OF MOTION FOR SUMMARY MILLER PLUMBlNG AND HEATING, INC., JOHN JUDGMENT GALLIN 8 SON, INC., SIRINA FIRE PROTECTION CORP., HUDSON MERIDIAN CONSTRUCTION GROUP, LLC, JGM CONSTRUCTION GROUP, LLC, ARAGON, LLC,..-----------------X Defendants. Seth D. Rosmarin, under the penalties of perjury, states as follows: 1. My name is Seth D. Rosmarin. I am a member in good standing of the Bar of the State of New York, and of counsel to the firm of Westermann Sheehy Keenan Samaan 8 Aydelott, LLP, counsel for defendant, Sirina Fire Protection Corp., Inc. (Sirina Fire). This Affirmation is submitted in support of Sirina Fire's motion for the following relief: (i) an Order pursuant to CPLR Rule 3212(a) granting summary judgment, dismissing the Complaint, together with any and all cross-claims (the Action), against Sirina Fire, upon the grounds that no viable causes of action exist against Sirina Fire; and (ii) granting such other and further relief as the Court may deem to be just, proper and equitable. 2. My knowledge of the facts set forth in this Affirmation is based on an investigation conducted as counsel in this matter and, in some instances, my personal knowledge. 1 of 10
PRELIMINARY I. STATEMENT 3. Francisca Paguada Rodriguez (Plaintiff) seeks to recover damages for alleged bodily injury resulting from being struck by a piece of metal door framing as she attempted to pass through an office doorway on the floor of 499 Park Avenue, New York (the Premises) on or about July 20, 2011.' 4. Plaintiff alleges, without any basis in fact, that Sirina Fire's work on the floor of the Premises, was somehow related to the cause of her alleged accident. 5. As set forth in greater detail in the accompanying Affidavit of David Kuehn, Sirina Fire's Vice President and General Counsel, sworn to on March 22, 2018 (the Kuehn Aff.), as well as in other sworn testimony, Sirina Fire performed sprinkler work at the Premises and performed no work whatsoever having anything to do with the Premises' doors or door framing. Sirina Fire last worked at the FlOOr of the Premises (where Plaintiff alleges her accident occurred) in early 2006 which is more than five years prior to Plaintiff's accident. Sirina Fire returned to the Premises to perform separate work but, again, this was sprinkler work having nothing to do with the door framing and was work which was not even performed on the FlOOr. 6. All of Sirina Fire's work at the Premises was completed to the satisfaction of the respective contractors and/or owners. Upon completion, Sirina Fire no longer worked at the floors where it had completed its sprinkler work and never had any ongoing maintenance responsibilities in connection with the floors of the Premises where Sirina Fire completed its work. 1 A copy of the March 23, 2013 Summons and Verified Complaint is attached to this affirmation as Exhibit A. AFFIRMATION IN SUPPORT PAGE 2 2 of 10
7. For all of these reasons, and as indicated by the evidence set forth below and in the attached exhibits, as well as in the accompanying Kuehn Aff. and attached exhibits and Memorandum of Law, Sirina Fire's motion for summary judgment should be granted in its entirety. II. PROCEDURAL HISTORY 8. Plaintiff commenced this action on or about March 23, 2013 against defendants, Miller Plumbing and Heating, Inc. (Miller), John Gallin 8 Son, Inc. (John Gallin), Sirina Fire, Hudson Meridian Construction Group, LLC (Hudson Meridian), JGM Construction Group, LLC (JGM), Aragon, LLC (Aragon) (collectively Defendants), seeking damages for personal injuries allegedly suffered on or about July 20, 2011.² 2011. 9. In response to Plaintiff's Verified Complaint, Sirina Fire served its Verified Answer on or about July 18, 2013.3 2013. 10. On or about June 3, 2013, John Gallin filed its Verified Answer to the Plaintiff's Verified Complaint. Miller filed its Verified Answer on or about June 18, 2013. Hudson Meridian filed its Verified Answer on or about May 7, 2013. JGM filed its Verified Answer on or about September 19, 2013.4 2013. Upon information and belief, defendant, Aragon, LLC, has never appeared in this action. By stipulation among all the appearing parties, the venue of this action was changed to New York County. 11. On or about October 31, 2013 Plaintiff filed a Bill of Particulars in response to Sirina's demand. Plaintiff subsequently supplemented her Bill of Particulars on or ² Id. 3 A copy of Sirina Fire's Verified Answer is attached as Exhibit B. 4 Defendants' A copy of respective Answers to Plaintiffs Verified Complaint are collectively attached as Exhibit C. AFFIRMATION IN SUPPORT PAGE 3 3 of 10
about March 17, 2015. In both documents, Plaintiff confirmed that the accident occurred on July 20, 2011 at a door frame on the FlOOr of the Premises.5 DEPOSITION Ill. TESTIMONY A. Testimony of Plaintiff 12. On or about December 15, 2015, the Plaintiff's deposition was taken, in which she testified that while in the course of her employment as an office cleaner, she was struck by a piece of metal door framing.6 13. Plaintiff testified that her accident occurred on July 20, 2011, between the hours of 8:00 am and 8:30 am, as she was working as an office cleaner for company, Credit Mobiliaria.7 The Plaintiff's job was to clean the spaces on the 14th and floor Of the Premises.8 14. Plaintiff confirmed at deposition that she was injured on the FlOOr Of the Premises.9 Premises. Specifically, Plaintiff testified she was cleaning the lower part of an open sliding glass door when she felt something fall on her neck.'0 15. According to the testimony of Plaintiff, she was struck by a piece of metal door framing.'' Specifically, Plaintiff testified: Q. Do you know where that piece of metal came from that fell on you? A. Yes. From the upper part, and it was supporting the glass door. Q. It was from the upper part of the glass door? A. Yes. From the upper part.1² A copy of Plaintiffs October 31, 2013 Verified Bill of Particulars and March 17, 2015 Supplemental Verified Bill of Particulars are collectively attached as Exhibit D. ' A copy of Plaintiffs December 15, 2015 Deposition Transcript is attached as Exhibit E. Plaintiff Transcript p. 12. Plaintiff Transcript p. 30. Plaintiff transcript, pp.17-18. Plaintiff Transcript p. 45 "" Plaintiff Transcript pp. 52-53. ² Plaintiff Transcript, p 52. AFFIRMATION IN SUPPORT PAGE 4 4 of 10
-. 16. Plaintiff further testified: Q. Regarding the piece of metal that you said hit you or struck you, did this fall from the middle of the doorway, or anywhere else? A. From the upper part. Q. Was it from the doorway itself, or was it a piece of the ceiling in one of the rooms? A. That piece of metal was supporting all the area where the glass is. Q. That's the glass of the doorway? A. Yes.'3 Yes B. The Testimony of David Kuehn of Sirina Fire 17. On or about October 27, 2017, Sirina Fire's deposition was taken.'4 18. David Kuehn, Sirina Fire's Vice-President and General Counsel testified that Sirina Fire's work on the floor of the Premises was performed and completed at least five years prior to the alleged accident.15 19. Specifically, regarding Sirina Fire's work on the floor, Mr. Kuehn testified: Q: The job that you were that was around what year? talking about now in terms of Hunter Roberts, A: We performed work in 2005 and the project was closed and paid in full in very early 2006. Q: What floors was the project on? A: The Hunter Roberts? Q: Yes. A: th 17" th, and 18th 16 20. Sirina Fire returned to the Premises under a separate contract in 2010 for sprinkler work but this did not include any work on the flooe17 Specifically, Mr. Kuehn testified: '3 Plaintiff Transcript, p. 119 '4 A copy of the deposition transcript of David Kuehn is attached as Exhibit F. 'S Kuehn Transcript, pp. 19-20. 16 Kuehn Transcript, p. 20 AFFIRMATION IN SUPPORT PAGE 5 5 of 10
Q: This 2010 project, what was that? A: I don't recall the specifics. I believe it was moving a couple of sprinkler heads. Both of the projects were very small. Q: Where in the building was that? A: I would have to look at the paperwork. I do know that it did not involve the floor 18 21. Additionally, Mr. Kuehn testified that any work at the Premises that was not sprinkler work would not have involved Sirina Fire.' 20 IV. THE KUEHN AFFIDAVIT 22. As set forth in the Kuehn Aff., David Kuehn, Vice President and General Counsel for Sirina Fire, regularly prepares, reviews and maintains records pertaining to the sprinkler and fire suppression work performed by Sirina Fire, including purchase orders and other agreements, contract reports, bid scopes and other documents specifying Sirina Fire's work at its projects, as well as documents relating to additional, or change order work performed by Sirina Fire and other documents in connection with its projects work, such as labor reports, correspondence and other documents, all of which show the specific sprinkler work performed by Sirina Fire, and where and when the sprinkler work was performed.²¹ 23. Mr. Kuehn conducted a search of all records relating to all of the projects worked on by Sirina Fire at the Premises dating back to 2005.22 '7 Kuehn Transcript pp. 20-21, 23. ¹* Kuehn Transcript, pp. 20-21. 'S Kuehn Transcript p 23. 20 Kuehn Transcript pp 34-35. 2' ²² Kuehn Aff., 5. Kuehn Aff., 16. AFFIRMATION IN SUPPORT PAGE 6 6 of 10
24. Sirina Fire's work at the Premises had nothing to do with the door framing. Moreover, Sirina Fire did not work in any capacity on the FlOOr of the Premises after early 2006, more than five years before Plaintiff's accident.23 accident. 25. Sirina Fire's work at the Premises involved two separate jobs. The first job entailed a contract entered into between Sirina Fire and Hunter Roberts for sprinkler system work on the 14th _ 7th floors, of the Premises (the Hunter Roberts Project). Sirina Fire entered into a contract with Hunter Roberts on or about August 4, 2005, almost six years prior to Plaintiff's alleged accident.24 Specifically, the Hunter Roberts Project required Sirina Fire to cut and cap existing sprinkler systems and convert existing concealed sprinkler heads into temporary uprights on the 14th _ 7th floors, as well as at the cellar of the Premises.25 Premises. On or about July 21, 2005, Sirina submitted a change proposal in connection with additional work required for the Hunter Roberts Project, however this additional work was limited to the 10th 10'", th and 12th floors of the Premises.25 26. As set forth in the Kuehn Aff., the Hunter Roberts Project, including all change orders and/or modifications, was limited to sprinkler work, and was completed to the satisfaction of Hunter Roberts and paid in full in early 2006, more than five years before the alleged accident.27 27. Sirina Fire returned to the Premises in 2010 to perform additional sprinkler installation work, this time for JRM Construction (JRM), for a job called Solidus Holdings ²3 Kuehn Aff., 7. ²4 Kuehn Aff., 8. A copy of the Hunter Roberts New Contract Report, dated August 4, 2005, showing the full scope of Sirina Fire's work in connection with the Hunter Roberts Project, is attached to the Kuehn Aff. as Exhibit 1. ² Exhibit 1 to the Kuehn Aff. 26 Kuehn Aff., 9. A copy of the Change Proposal in connection with the Hunter Roberts Project, dated July 21, 2005, is attached as Exhibit 2 to the Kuehn Aff. ²7 Kuehn Aff., 10. AFFIRMATION IN SUPPORT PAGE 7 7 of 10
.. (the Solidus Project).28 Project). Again, however, Sirina Fire's work pertained only to sprinkler work and was to cut and cap existing sprinkler systems and to make connections to the existing systems. None of Sirina Fire's work in connection with the Solidus Project was located at, or even involved, the FlOOr of the Premises.29 28. Sirina Fire performed additional work for JRM in connection with the Solidus Project, however this work was to furnish and install an additional sprinkler head in the bathroom closet on the first floor of the Premises.3 29. All of Sirina Fire's work in connection with the Solidus Project was completed on or about May 25, 2011, almost six months before Plaintiff's accident and did not include any work on the floor.31 floor. 30. At no point in connection with any of its work at the Premises, whether for the Hunter Roberts Project or the Solidus Project, was Sirina Fire ever engaged in or performed any work relating to, or involving, door frames or doors in any manner whatsoever at the Premises. Sirina Fire's scope of work at the Premises, which pertained only to the Hunter Roberts and Solidus Projects, was for sprinkler work and had no involvement whatsoever with any door frames at the Premises.3² Premises. 31. Additionally, all of Sirina Fire's work at the FlOOr of the Premises, where Plaintiff avers in sworn testimony her accident occurred, was completed more than five years prior to Plaintiff's accident and Sirina Fire was not involved in any other ²ª Kuehn Aff., 11. A copy of the Purchase Order dated September 23, 2010 entered into between Sirina Fire and JRM pertaining to the Solidus Project, including the Purchase Order Attachment showing Sirina Fire's scope of work, is attached to the Kuehn Aff. as Exhibit 3. ² Kuehn Aff., 11. Copies of the New Contract Report pertaining to the September 23, 2010 Purchase Order, invoices, bid breakdown, labor reports (showing that the work was completed well before Plaintiff's accident) and correspondence, all pertaining to the Solidus Project, are collectively attached to the Kuehn Aff. as Exhibit 4. 30 Kuehn Aff., 12. Copies of the Sirina Fire Change Proposal, Purchase Order for the additional work, invoice and other documents are collectively attached to the Kuehn Aff. as Exhibit 5. 3' Kuehn Aff., 13. See also Exhibits 4,5 to the Kuehn Aff. 3² Kuehn Aff., 14. AFFIRMATION IN SUPPORT PAGE 8 8 of 10
construction at, or was even present at, the floor Of the Premises anytime thereafter.33 thereafter. 32. Furthermore, Sirina Fire had no responsibility whatsoever with regard to routine maintenance on the floor, or any other floors at the Premises and none of the Purchase Orders or other documents showing Sirina Fire's work at the Premises state that it had this responsibility.34 responsibility. V. ARGUMENT A. Sirina Fire is Entitled to Summary Judgment as a Matter of Law35 33. The purpose of summary judgment is to expedite all civil cases by eliminating from the trial calendar claims that can be properly resolved as a matter of law. Once a proponent of a summary judgment motion makes a prima facie showing of entitlement to judgment as a matter of law by setting forth sufficient evidence to demonstrate the absence of any material issues of fact, the burden shifts to the opposing party to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure to do so. 34. Here, Sirina Fire established a prima facie case warranting summary judgment and dismissal of the Action against it. Sirina Fire has submitted evidentiary proof establishing that its work had nothing to do with the door framing, or doors for that matter, anywhere at the Premises. Sirina Fire's work was expressly limited to sprinkler work as clearly indicated in the contract documents, invoices, reports, correspondence 33 Kuehn Aff., 15. 34 Kuehn Aff., 116. 33 The Court is respectfully referred to Point II of the accompanying Memorandum of Law for a discussion of the relevant legal principles and case law. AFFIRMATION IN SUPPORT PAGE 9 9 of 10
and other documents annexed to the Kuehn Aff., as well as set forth in Mr. Kuehn's deposition testimony. 35. Moreover, Sirina Fire also established that it was not even on the Floor of the Premises anywhere near the time of the accident and last worked on the Floor in early 2006, more than five years before Plaintiff's accident. WHEREFORE, for all of the foregoing reasons, defendant, Sirina Fire Protection Corp. respectfully requests that this Court enter an Order for the following relief: (i) an Order pursuant to CPLR Rule 3212(a) granting Sirina Fire Protection Corp. summary judgment, dismissing Plaintiff's Complaint, as well as any and all cross-claims against Sirina Fire, upon the grounds that there exists no viable cause of action against Sirina Fire; and (ii) granting such other and further relief as the Court may deem to be just, proper and equitable. Dated: Uniondale, New York March 23, 2018 Seth D. RosTrrárin AFFIRMATION IN SUPPORT PAGE 10 10 of 10