SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK TIFFANY RICE, - against - Plaintiff(s), SUPPLEMENTAL AFFIRMATION Index No: 15195212015 File No: 2016-054067 CITY OF NEW YORK AND NEW YORK CITY DEPARTMENT OF HOMELESS SERVICES, Defendant(s). Hon. Alexander M. Tisch ParL: 52 Return Date: November 18,2017 X ANTHONY BILA, 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 and annexed exhibits are submitted to supplement the motion of Defendant(s) THE CITY OF NEW YORK and THE CITY OF NEW YORK S/H/A NEW YORK CITY DEPARTMENT OF HOMELESS SERVICES (hereinafter collectively "City"), which seeks an Order pursuant to CPLR $ 3211 (axl) based on documentary evidence and pursuant to CPLR $ 3211 (ax7) for failure to state a cause of action, and in response to the opposition of the plaintiff. 2. Plaintiff alleges personal injuries sustained on December 13, 2013 at2:00 am, in the premises known as 350 Lafayette Street, also known as the "350 Lafayette Women's Shelter" in the County, City and State of New York, when the fourth floor elevator came off the hinges and fell on top of her. See, City's motion, Exhibits "A", Notice of Claim and Verified Complaint, Exhibit "B". The City moved to dismiss on the grounds that it does not own, 1 of 9
operate, maintain, or control, the subject premises. In support of the City's motion to dismiss, the City attached as Exhibit 'E" an affidavit of David Schloss, a Senior Title examiner which indicated that his title search who conducted a title search of the property which revealed that the property in question was not owned by the City, rather by NOHO LAFAYETTE, LLC, on the date of incident. The relevant deed was also attached as Exhibit "F". 3. Plaintiffls opposition focuses on the issues of operation, maintenance and control of the premises. The City also annexed to its motion as Exhibit "I" an affirmation of Aaron S. Goodman, Esq., the Deputy General Counsel for New York City Department of Social Services ("DSS") responsible for Department of Homeless Services ("DHS") programs and litigation, a position he has held since the integration of DHS and the Human Resources Administration ("HRA") under the joint management structure of DSS. Mr. Goodman averred that his search revealed that his revealed that "DHS does not owrr, lease, n'ranage, maintain or occupy the premises.... The premises known as 350 Lafayette Street, New York, NY was leased by Center of Urban Community Services (hereinafter "CUCS") from a private landlord, and CUCS operated a transitional shelter for single adult, homeless women at that site under contract with DHS. See, City's motion, Exhibit "I", ltfl 2,3).Mr. Goodman also averued that "[p]pursuant to Article 4, Section A(l) of the contract between DHS and CUCS, CUCS was responsible for the maintenance and repairs for the subject facility, including the subject elevator utilized by DHS' clients and CUCS staff members." Id, fl 5). The contract was annexed to the motion as Exhibit,,J", 4. Plaintiff opposes the City's motion on the grounds that the contract annexed to the City's motion post-dates the incident, and as such the City has failed to demonstrate entitlement to dismissal. Regretfully, plaintiff is correct in that the contract annexed to the 2 2 of 9
City's motion as Exhibit "J" went into effect on June 16,2014 subsequent to the incident. Due to law office failure, the City annexed a contract that post-dates the date of the alleged incident as the client agency DHS conducted a search and inadvertently provided the aforementioned contract. However, upon receipt of the plaintiff s opposition papers, the City requested that DHS conduct a new search regarding the operation, maintenance and control of the subject premises. The new search confirmed that the City did not operate, maintain, nor control the subject premises and shelter. This search produced the relevant contract that was in effect on the date of the alleged incident, which as discussed below, provides, that as in the contract annexed to the City's motion, that the City is not operate nor maintain the subject shelter. 5. The City submits this Supplemental Affirmation to provide plaintiff and the Court with the relevant documentary evidence, and as discussed below, the City's motion should be granted as the City has substituted the contract annexed to the motion with the appropriate contract with an affirmation of an agency attorney attesting to the results of the new search. The City submits this Supplemental Affirmation in the interest of judicial economy. This Court has ample discretion to consider this Supplemental affirmation and the exhibits annexed hereto. Rather than withdraw the present motion to dismiss and resubmit the motion with the correct contract, and delay this matter any further, wasting the time of the parties and this Court with additional appearances, the City submits this Supplemental Affirmation. Should plaintiff object, the City respectfully points out that the City adjourned the motion for the express purpose of submitting this Supplemental Affirmation and to provide plaintiff with a sufficient opportunity to review the relevant contract and affirmation of a DHS attorney, and to submit additional opposition papers, if any to this Supplemental Affirmation. The undersigned also advised plaintiffs counsel when of the City's intention to supplement its initial motion with the J 3 of 9
appropriate contract when requesting the recent adjournment of the motion. There is no surprise or prejudice to the plaintiff. Thus, it is respectfully requested that this Court consider the present Supplemental Affirmation, and upon review, dismiss the action against the City with prejudice. 6. Annexed hereto as Exhibit "A" is the Affirmation of Kimberly Bruno, Esq. of counsel to DHS. As an attorney for the client agency, DHS, Ms. Bruno is familiar with the facilities owned, operated, controlled, and maintained by DHS. (Exhibit "A"). Ms. Bruno further affirms as follows: 3. My search revealed that DHS did not own, lease, manage, maintain or occupy the premises known as 350 Lafayette Street, New York, New York, known as the "350 Lafayette Women's Shelter" on December 13, 2013. The premises known as 350 Lafayette Street, New York, NY was a participant in the transitional housing program. (Exhibit "A", fl 3). Ms. Bruno discusses the relevant contract as follows 4. A copy of the contract dated June 8, 2004 between DHS and CUCS is annexed hereto as Exhibit "A". Notably, the terms of the Contract provide that the contract was to commence on July 1, 2004 andto terminate on June 30,2009. Annexed hereto as Exhibit "B" is a copy of the Renewal Agreement dated Aprrl 20, 2009 extending the aforementioned contract during the period of: July 1, 2009 to June 30, 2013. Annexed hereto as Exhibit "C, is a copy of the Renewal Agreement dated April 11,2013, extending the subject contract during the period of July l,2013 to June 30, 2014. 5. Pursuant to Article 5, Section A (1) of the subject contract, CUCS [Center of Urban Community Services] was responsible for the maintenance and repairs for the subject facility, including the subject elevator utilized by DHS' clients and CUCS staff members. (Exhibit "A"). Consequently, on December 13, 2013, DHS did not own, operate, or control the premises at 350 Lafayette. Rather, on the above mentioned date, and on all dates under the contract, DHS referred clients to the facility and directed their social service delivery and compliance with state and local social services regulations. Maintenance and 4 4 of 9
repair of the physical would have been relegated to the underlying lease between CUCS and the landlord for the building. See, Exhibit "A" 1T'1T4-5. (Emphasis added). 1. For purposes of clarification, the contract and Renewal Agreements produced by Ms. Bruno's search are annexed hereto as follows: Annexed hereto as "Exhibit B" is a.copy of the contract dated June 8, 2004 between DHS and CUCS that provides that the contract was to commence on July 1,2004 and to terminate on June 30,2009. Annexed hereto as Exhibit t'crr is a copy of the Renewal Agreement dated April 20, 2009 extending the aforementioned contract during the period of: July 7,2009 to June 30,2013. Annexed hereto as Exhibit "D, is a copy of the Renewal Agreement dated April 17,2013, extending the subject contract during the period of July 1,2013 to June 30,2014. provides as follows: 8. As indicated in Ms. Brunu's affirrnation, tlte corttract dated July I, 2004 ARTICLE 5. RESIDENCE MANAGEMENT A. Residence Maintenance. l. The Contractor shall be responsible for the preventativeo daily, corrective and emergency maintenance and repair of the Residence. The Contractor's obligations hereunder include, but are not limited to: the maintenance of all mechanical systems, (including HVAC, boiler, hot water, emergency generator, elevator, and fire safety), the maintenance of the interior and exterior building components, (including general plumbing, carpentry, electric, window screens, window glass, masollry, tile repair, door alarms, locks, grounds, equipment, altd furnishings). The Contractor shall consult with, arrd receive writteu approval from the Deparlrnent before initiating any structural changes, including renovations and room reconfigurations. The Contractor shall only.be responsible for perfonning dle obligations described in this paragraph 1 to the extent funds are available in its budget for this purpose. Notwithstanding the above, the Contractor shall be responsible for all repairs, rnajor or minor, that are the result of the Contractor's negligerrce or are the result df vandalism by the clients tlrat occurred because of the Contractor's negligent supervision of the clients. 5 5 of 9
See, Exhibit "A", Article V, p.p. 9-10. (Emphasis added). 9. The City respectfully the evidence submitted in this Supplemental Affirmation verify as argued in the underlying motion that the City is an improper party in this matter. Here, pursuant to Article 5, Section A(1), p.p. 9-10, the City is not responsible for the maintenance and repairs of the premises, including the subject elevator, that responsibility is placed on CUCS. (Exhibit "B"). Notably, as per Annexed the Renewal Agreement dated April 77,2013, annexed hereto as Exhibit "D", the relevant contract was extended during the period of July 1,2013 to Jnne 30,2014. The alleged incident occurred on December 13,2013. Thus, there can be no doubt, that the subject contract, annexed hereto as Exhibit "8" which provides that the City is not responsible for the maintenance of the subject elevator was in effect on the date of incident, pursuant to the Renewal Agreement, annexed hereto as Exhibit "D." 10. The City respectfully subrnitted that the results uf Mr. Schloss' Litle sean-:h, specifically, the deed annexed to the City's motion as hereto as Exhibit "F" and the subject contract between DHS and CUCS, annexed hereto as Exhibit "B", and the Renewal Agreement which extended the subject contract throughout the time of the alleged incident which provides no maintenance obligations on the City, including the elevator in question, are documentary evidence that established that the City was not the owner of the subject property, and did not maintain, operate, nor control it on the date of the alleged incident. Accordingly, the City has demonstrated it is an improper party in this matter, and as such plaintiff s Complaint against the City should be dismissed with prejudice. 11. As discussed in the City's motion, in Morales v. Cit)' of New York, Index No. 15735312013 (Sup. Ct. New York County, January 15,2014)(Hon Frank P. Nervo), the Court dismissed an action against the City where the plaintiff was in a privately, non-city owned 6 6 of 9
building that provided transitional housing, and claimed that a slippery condition caused her to fall to the floor. See, City's motion, Exhibit "K". As in the present matter, in Morales, DHS only referred clients to the facility and in the transitional housing program, the vendor scatter-site program, the Vendor, Aguila Inc. had a contract with DHS, in which included the maintenance and repairs for the subject facility utilized by DHS'clients. In support of the City's motion was the affidavit of a senior title examiner and relevant deed, an affirmation of an agency attorney, as well as the relevant contract, which as here placed no maintenance obligations upon the City. Id. The Court dismissed the action holding as follows: The City submits sufficient proof that it does not own the premises where the incident occurred. The question of property ownership is a matter of public record and additional discovery is not needed on the question. The contract that the City entered into with [vendor Aguilia, Inc.] speaks for itself and no additional discovery despite defendants' speculation would reveal information sufficient to implicate the City in the accident. (City's motion, Exhibit "K"). (Emphasis added). 12. The City respectfully submits that the affirmation of Ms. Bruno and the relevant contract and Renewal Agreements which extend the contract throughout the time of the incident, (Exhibits "A"- D") constitute evidence in admissible form that the City does not own, occupy, maintain or control the subject premises, in addition to the results of the title search and affidavit reflecting the results of same from a Senior Title examiner. Said contract confirms as argued in the City's motion, the City in that the City is not responsible for maintenance and repair of the location of the alleged incident. The appropriate contract annexed hereto just in the subsequent contract that is annexed to the City's motion, places maintenance obligations of the contractor, CUCS for the subject elevator. See, Exhibits ""A"-D." Here, the City's role was only to refer clients to the facility, which is not as issue in the present matter. Moreover, the property 7 7 of 9
is privately owned, and maintenance and repairs were placed on an entity other than the City by the written contract which extended by the renewal Agreements annexed hereto. Accordingly, it is respectfully that this Court consider the evidence annexed hereto and dismiss plaintiffs Complaint against the City with prejudice. WHERBFORE, the Defendant(s) CITY OF NEW YORK AND NEW YORK CITY DEPARTMENT OF HOMELESS SERVICES respectfully request that the present motion be granted in the entirety, that the plaintiffs Complaint, be dismissed as against the aforementioned Defendant(s), and for such other and further relief as this Court may deem just and proper. Dated New York, New York October 31,2017 E;A ANTHONY BILA AS SISTANT CORPORATION COI.]NSEL (2t2) 3s6-27s TO MARC J. BERN & PARTNERS, L.L.P Attorneys for Plaintiff TIFFANY RICE 60 West 42nd Street New York, NY 10165 (212) 702-s000 8 8 of 9
Index No. 15195212015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK TIFFANY RICE, Plaintiff(s), -against- CITY OF NEW YORK AND NEW YORK CITY DEPARTMENT OF HOMELESS SERVICES, Defendants SUPPLEMENTAL AFFIRMATION ZACIIARY W. CARTDR Corporation Counsel of the City of New York Attorney for Defendant(s) CITY OF NEW YORK AND NEW YORK CITY DEPARTMENT OF HOMELESS SERVICES 100 Church Street New York, N.Y. 10007 Of Counsel: Anthony Bila Tel: (212) 356-2751 File No. 2016-054067 Due and timely service is hereby admitted. New York, N.Y.,2017..Esq. Attorney for 9 of 9