SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------------X â â â â â â â â â â â â â â â â â â â â ALEXANDRIA MALONE, -against- Plaintiff, AFFIRMATION IN REPLY Index No.: 450678/2016 1815 PARK HOTEL ASSOCIATES LLC ALSO KNOWN City File No.: 2016-002742 AS 1815 PARK HOTEL ASSOCIATES, HARLEM CENTRAL HOTEL ALSO KNOWN AS HARLEM UNITED CENTRAL HOTEL LLC, D.B.A, GRAND UNION HOTEL OF NY, INC., HARLEM PARK AVENUE COALITION FOR THE HOMELESS, INC., FORMALLY KNOWN AS HARLEM CENTRAL HOTEL, NEW YORK CITY MANAGEMENT, LLC, AND THE CITY OF NEW YORK, Defendants. ---------------------------------------------------------------------X â â â â â â â â â â â â â â â â X WENDY CHAVEZ, an attorney admitted to practice in the State of New York and an Assistant Corporation Counsel of the City of New York affirms the truth of the following under the penalties of perjury pursuant to CPLR 2106 upon information and belief based upon the records maintained in this office: 1. This affirmation is submitted by Defendant, THE CITY OF NEW YORK "City" (hereinafter "City"), in further support of its motion which seeks an Order pursuant to CPLR 3211 (a)(1) and/or CPLR 3211(a)(7) dismissing Plaintiff's Complaint against the City and for further relief as this Court may deem just and proper. 2. The instant action is to recover for personal injuries allegedly sustained by the "Plaintiff' Plaintiff, Alexandria Malone (hereinafter "Plaintiff"), on November 22, 2014, when she allegedly slipped and fell on the second floor of 1815 Park Avenue, New York, New York, I 1 of 6
10035 (also known as Harlem Central Hotel). See Notice of Claim, annexed to the City's Motion as Exhibit A. 3. In Opposition to the City's motion, the Plaintiff and Co-Defendants 1815 PARK HOTELS ASSOCIATES LLC also known as 1815 PARK HOTEL ASSOCIATES, and HARLEM CENTRAL PARK HOTEL LLC also known as HARLEM UNITED CENTRAL "Co-Defendants" HOTEL LLC d.b.a. GRAND UNION HOTEL OF NY (collectively hereinafter "Co-Defendants") have raised the following contentions: i) the City has failed to meet its prima facie case under CPLR 3211(a)(1) and 3211(a)(7); and ii) the City's motion is premature. However, these arguments are unavailing, speculative, insufficient to defeat the City's showing, and are unsupported by both the evidence and case law. Therefore, the City's motion should be granted in its entirety. I. THE CITY'S MOTION TO DISMISS SHOULD BE GRANTED IN ITS ENTIRETY. a. The City has met its evidentiary burden of proof to warrant dismissal of Plaintiff's Complaint pursuant to CPLR 3211(a)(1) and/or CPLR 3211(a)(7). 4. In its underlying motion, the City asserted that pursuant CPLR 3211(a)(1), a party may move for dismissal on the ground that "a defense is founded upon documentary evidence." Dismissal of a complaint is proper when the documentary evidence submitted establishes a conclusive defense to the cause of action as a matter of law. See, es, TIMAC Realty v. G&E Tremont LLC, 121 A.D.3d 457 (Ist Dep't 2014). See also Whitebox Concentrated Convertible Arbitrage Partners. L.P. v. Superior Well Servs.. Inc., 20 N.Y.3d 59, 63 (2012); Arnav Indus. v. Brown. Raysman. Millstein. Felder & Steiner, LLP, 96 N.Y.2d 300 (2001); Weil- Gotshal & Manses- LLP v. Fashion Boutique of Short Hills. Inc., 10 A.D.3d 267, 270-271 (1st Dep't 2004); Leon v. Martinez, 34 N.Y.2d 83, 87-88 (1994). 2 2 of 6
5. Here, the City has provided an affirmation from Mr. David Atik, a New York City Department of Finance Title Examiner, who conducted a title search for 1815 Park Avenue, New York, New York. See Mr. Atik's Affirmation annexed to the City's Motion as Exhibit C. Mr. Atik's findings unequivocally demonstrate that the City did not own the building at the aforementioned location where Plaintiff's alleged accident took place on the date of Plaintiff's accident. Id. As stated in the City's motion, on the date of Plaintiff's alleged accident, the building located at 1815 Park Avenue, New York, New York 10035, was owned by Co- Defendant 1815 Park Hotel Associates, LLC. Id. Since the City did not own, operate, manage, maintain, or control the premises on the date of the alleged accident, the City respectfully submits that Plaintiff's Complaint and all cross-claims against the City must be dismissed. 6. To further demonstrate that the City did not own, maintain, operate, manage, or control the subject premises, Mr. David Schloss, a New York City Senior Title Examiner, conducted a title/deed search for 1815 Park Avenue, New York, New York. See Mr. Schloss' Affidavit and Copy of Deed attached herein as Exhibit 1. Identical to Mr. Atkin's determination, Mr. Schloss' title/deed search revealed that the subject building designated as Block 1773, Lot 69 was not owned by the City on the day of the Plaintiff's alleged accident. Id. Pursuant to a deed recorded on April 29, 2003, on the date of Plaintiff's accident, the subject building located at 1815 Park Avenue was owned by 1815 Park Hotel Associates, LLC. Id. The deed further evidences that the City is not a proper part to this party. Accordingly, the present action against the City must be dismissed. 7. Since the City did not own, operate, or manage the premises on the date of Plaintiff's alleged accident, the City did not own a duty of care to Plaintiff. Absent a duty of care 3 3 of 6
to the alleged injured Plaintiff, the City cannot be held liable in negligence. See Balsam v. Delma Eng'g Corp., 139 A.D.2d 292, 296 (1988). 8. In Opposition, Co-Defendants speculate that the City allegedly entered into a contract with the owners of the subject property, and such contract may have obligated the City to maintain and repair the subject premises. Such conjecture is entirely speculative. In fact, the record is completely devoid of any evidence that the City entered into any contracts with 1815 Park Hotel Associates, LLC, which is the true owner of the subject building. Co-Defendants' excuse for not providing any evidence is that they "do not have the benefit of reviewing such contracts," even though Co-Defendants would also be parties to such a contract as owners of the subject premises, and thus said contracts would be readily accessible to them to the extent that it even exists. Moreover, Plaintiffs and Co-Defendants fail to submit any affidavits with their opposition papers explaining why such evidence is not available to them at this time. See C.P.L.R. 3211(d). Since the opposition papers submitted against the City's motion are without merit, the City's motion to dismiss Plaintiff's Complaint should be granted in its entirety. b. The City's Motion to Dismiss Plaintiff's Complaint is not premature as the City submitted sufficient documentary evidence to show that the City did not own, operate, or control the subject premises on the date of Plaintiff's accident. 9. The City has sufficiently established that the City did not own, operate, manage, maintain, or control the subject premises on the date of Plaintiff's alleged accident. CPLR 3211 (a)(1) may be raised where it is claimed that "documentary evidence utterly refutes factual allegations, conclusively establishing a defense as a matter of law." See Basis Yield Alpha Fund (Master) v. Goldman Sachs Grp.,. Inc., 115 A.D.3d 128, 143 (2014). Here, the City has submitted two affidavits and a record deed that clearly establishes that the City did not own the premises at 1815 Park Avenue, New York, New York. The City has provided sufficient 4 4 of 6
documentary evidence that demonstrates that the subject premises are owned by 1815 Park Hotel Associates, LLC, a Co-Defendant in this matter. In Opposition, the parties have failed to provide admissible evidence to raise a question of fact. Therefore, the City's motion is not premature as no further discovery would reveal that the City had a duty to maintain the subject premises. WHEREFORE, it is respectfully requested that the motion by the City be granted in all respects and for such other and further relief as this Court may deem just and proper. Dated: New York, New York April 20, 2018 ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for Defendant THE CITY OF NEW YORK 100 Church Street New York, New York 10007 f, By: Weddy Cha ez Assistant Corporation Counsel (212) 356-2746 TO: LAW OFFICES OF ALEKSANDR VAKAREV Attorneys for Plaintiff 2566 86th Street, Ste 1 Brooklyn, NY 11214 HARLEM PARK AVENUE COALITION FOR THE HOMELESS, INC., FORMALLY KNOWN AS HARLEM CENTRAL HOTEL Defendant Pro Se 1815 Park Ave New York, NY 10035 HARLEM PARK AVENUE COALITION FOR THE HOMELESS, INC., FORMALLY KNOWN AS HARLEM CENTRAL HOTEL Defendant Pro Se 105 East 22nd Street New York, NY 10010 5 5 of 6
NEW CITY MANAGEMENT LLC Defendant Pro Se Oz Levy 2753 Broadway Ste 377 New York, NY 10025 6 6 of 6