York County Supreme Court, 60 Centre Street, New York, NY ...

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

MARKNORTHUP,

Plaintiff,

-against-

200 MADISON ASSOCIATES, L.P. andGEORGE COMFORT & SONS, INC.,

Defendants.

COUNSELORS:

-X

-X

AMENDED

NOTICE OF MOTION

Index No.: 152883/16

PLEASE TAKE NOTICE, that upon the annexed affirmation of THOMAS G.

CASCIONE, duly affirmed on December 8, 2016, upon the affidavit of plaintiff MARK

NORTHUP and upon all of the pleadings and prior proceedings had herein, the undersigned will

move this Court before Motion Submissions Part, Room 130, at the Courthouse located at New

York County Supreme Court, 60 Centre Street, New York, NY 10007-1474, on the 9^ day of

January, 2017 at 9:30 o'clock in the forenoon of that day, or as soon thereafter as counsel can be

heard, for an Order pursuant to CPLR §3212 granting summary judgment on the issue of liability

under Labor Law § 240(1) as to defendants, 200 MADISON ASSOCIATES, L.P. and GEORGE

COMFORT & SONS, INC., together with such other and further relief as this Court deems just

and proper.

NO PRIOR APPLICATION HAS BEEN MADE FOR THIS RELIEF TO ANY COURT

FILED: NEW YORK COUNTY CLERK 12/08/2016 03:37 PM INDEX NO. 152883/2016

NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 12/08/2016

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PLEASETAKE FURTHER NOTICE, that answering papers, if any, are to be served

upon the undersigned notless than seven (7) days prior tothereturn date herein.

Dated: New York, New YorkDecember 8,2016

Thomas G. Cascione, Esq.CASCIONE, PURCIGLIOTn & GALLUZZI, P.O.Attorneys for PlaintiffMARKNORTHUP

20 Vesey Street, Suite 1100New York, New York 10007(212)964-9640 File#: 3979

TO:

EUSTACE, MARQUEZ, EPSTEIN, PREZIOSO & YAPCHANYKAttention: Richard J. Freire, Esq.Attorneys for Defendants200 MADISON ASSOCIATES, L.P. andGEORGE COMFORT & SONS, INC.,55 Water Street, 29th FloorNew York, New York 10041(212)612-4200

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SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK

MARKNORTHUP, piaintifil AFFIRMATION INPlaintiff,

SUPPORT-against-

200MADISON ASSOCIATES, L.P. andGEORGE COMFORT & SONS,INC.,

Defendants.

Index No.: 152883/16

-X

Thomas G. Cascione, an attorney duly admitted to practice law before the Courts of the

State ofNew York, affirms the truth ofthe following under the penalties or peijury:

1. I am a member of the firm of CASCIONE. PURCIGLIOTTI &OALLUZZI. P.O.,

attorneys for the above^tioned plaintiff MARK NORTHUP. As such, Iam fiiUy femillar

with the foots and circumstances ofthis matter and all prior pleadings and proceedings, based

upon areview ofdie case file maintained by this office.

2. This affirmation is submitted in support of plaintifFs motion for an Order pursuant to

CPLR §3212 granting summary judgment on the issue of liability under Labor Law §240(1)

as to defendants, 200 MADISON ASSOCIATES, L.P. and GEORGE COMFORT &SONS,

INC.

BACKGROUND

3. This is an action based upon an incident that occurred on May 3,2014, at the premises,

located at 200 Madison Avenue, New York, New York 10016. At the time of the

occurrence, the plaintiff was working at the aforesaid premises as a building operating

engineer and was participating in an ongoing construction project while being in the course

of his employment for Comfort Maintenance Corp. The building was owned by defendant

200 MADISON ASSOCIATES, L.P., an entity supposedly created by defendant GEORGE

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COMFORT & SONS, INC. which manages thepremises (status of defendants as owner and

manager respectively is admitted in their answer annexed hereto). Comfort Maintenance

Corp. is an independent corporation, created by defendant GEORGE COMFORT & SONS,

INC forthepurpose of maintaining theaforementioned building.

4. One of the building's ground floor tenants was undergoing a major construction

renovation, which included connecting that space to the building's air conditioning system

vdiereas previously the space had its own cooling system. During that process it was

necessary to shut themmn valves thatcontrolled theflow ofwater intoandoutof thecooling

tower. It wasthenplaintifTs job to goto the loading dock areaandusetheavailable ladder to

climb up and turn the valves back on.

5. There was an A-firame ladder already placed on the loading dock. Since none of the

plaintifrs assistants were present to hold the ladder, the plaintiff left it leaning against the

wall and climbed around 8 rungs up to the top to get access to the valve. The valve was

sticking closed and the plaintiffused a piece of pipe for leverage to break lose the frozen

valve. Suddenly the valve spun free.

6. Theplaintiff, whowasstanding at the top level of the ladder, losthis balance and fell to

the floor, landing on his left foot. As a result of the occurrence, the plaintiff sustained a

severe calcaneus fractureand eventually requireda subtalarfusion.He remainsdisabled.

7. This actionwas commenced by filingofa Summons and VerifiedComplaint on April 5,

2016. (EXHIBIT **A''). Defendants appeared by their joint Answer, dated December 1,

2016. (EXHIBIT ••B").

8. Plaintiffs story is laid out in his affidavit. (EXHIBIT **€"). The plaintiff states that on

May 3, 2014, while participating in an ongoing construction project, in the course of his

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employment for Comfort Maintenance Corp., he was caused to fall from a ladder to the

ground, sustaining serious injuries to his left foot He explains that he was injured through

nofruit of hisownbecause hewassupplied a shalcy improper ladder to perform histask.

THERE ARE NO ISSUES OF FACT DUE TO

VIDEO PROOF OF THE ACCIDENT

9. Annexed hereto as EXHIBIT '̂ D" are a group of still shots taken from the video of

defendants* surveillance camerawhichrecords the loading dockv4iere plaintiffwas injured.

There can be no question that plaintiffclimbed the ladder, attempted his task and lost his

footing. As he describes, he tried to jump free of the ladderas he fell to minimize his injury.

The better means of using that inadequate ladder is even demonstrated on the tape after a

coworker arrives following the accident, opens up the ladder and after it proves shaky (it

visibly sways on the tape), has a second coworker steady it so that he can complete the

plaintifTs task. The following is depicted: (Dl) Plaintiffarrives and approaches the ladder;

(D2) Plaintiffclimbs the ladder; (D3) PlaintifTis workmgflush against the wall-onlyhis legs

are visible (D4) Only 20 seconds later in rapid sequence Plaintiff, still holdingthe pipe, falls

off and away from the ladder, hits the ground on his left foot and then lies injured on the

floor; (D5) Help has arrived and one co-workerhas opened the A-Frame and tries to use the

ladder to finish plaintiffs task while another attends to plaintiff (D6) Ten seconds later the

secondco-workerhas left plaintifrs side to steady the shaky ladder (D7) Less than a minute

later the co-worker has climbed down offthe ladder with the help ofthe second co-worker.

Any Questions?

10. Normally plaintiffs wait for completion ofdiscovery before making this motion in ladder

cases but in the present case there is absolutely no issue as to what occurred since the video is

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clear. The video is in defendants' control as are any co-workers who might have fiirdier

information. Your affirmant also duplicated our copy of the video and provided it to

defendants' insurer several months ago sothere can benoquestion of what we are claimmg.

If isany hint ofa defense tothis claim itshould be brought forth now by the defendants

rather than merely hoped for inthe months it will take togetdiscovery completed.

THE LABOR LAW MANDATES SUMMARY JUDGMENT

11. Under CPLR §3212, a motion for Summary Judgment should be granted only when,

upon all p^ers and proof submitted, the moving party demonstrates that no matoal or

triable issues of fact exist, and findings are justified as a matter of law. White v. Snerrv

SudpIv and Warehouse Inc.. 225 A.D.2d 130 (S'** Dept 1996); Suffolk County Department of

Social Services on behalf of Michael V.. 83 N.Y.2d 178 (1994); Gibbons v. Hantman. 58

A.D.2d 108 (2"'' Dept. 1977), affM, 43 N.Y.2d 941 (1978).

12. Under CPLR §3212(a), anyparty may move for summary judgment after issue has been

joined. Completion of discovery is not a requisite before the court can grant a summary

judgment motion. Chemical Bank v. PIC Motors Corp.. 58 N.Y.2d 1023, 1026 (1983);

Narvaev v. SoIoil 6 A.D.3d 510 (2d Dep't 2004); Herba v. Chichester, 301 A.D.2d 822(3d

Dep't2003).

13. Depositions have not been held,however based on the simple facts and the evidence set

forth by the plaintififherein it can be safely concluded that discovery would not result in any

disclosure defeating plaintiffs entitlement to summary judgment Kimvaearov v. Nixon Taxi

Corp. 45 A.D. 3d 736, 846N,Y.S. 2d 309, see also Johnson v Phillips 261 AD2d 269, 690

1 of 104 of 7



N.Y,S2d54.

14. Suimnary judgment is designed to e3<pedite all civil cases by eliminating from tiie Trial

Calendar Mdiich can beproperly resolved asa matter of law. Wh^ there isno genuine

issue of material fret to be resolved at trial, a case should be sununaiily decided. Andre v.

Pomerov. 35 N.Y.2d361,320 N.E.2d853,362 N.Y.S.2d 131 (1974).

15. To demonstrate entitlement to summary judgment, a party must make a prima facie

showing thatno material issues of fact exist Lorenzo v. Plitt Theatres. Inc.. 267A.D.2d 54,

699 N.Y.S.2d 388, 389 (1"^ Dept 1999), citing Wineerad v. New York Universitv Medical

Center. 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316 (1985). In deciding a summary judgment

motion the evidence must be takenin a lightmost favorable to the partyopposing the motion.

Dubbs V. Stribling & Associates. 96 N.Y.2d 337,728 N.Y.S.2d 413 (2001).

16. Labor Law§240(1) provides protection to workers at construction sites who are exposed

to elevation-related hazards. Blake v. Neighborhood Housing Services of New York Citv.

Inc..l N.Y.3d 280,287-290 (2003) "Inorder to impose liability under thestatute, a plaintiff

must demonstrate that the statute was violated and that the violation was a contributing

cause of his or her injuries. Moreover, 'the duty imposed by Labor Law § 240(1) is

nondelegable and an owner or contractor who breaches that duty may be held liable in

damages regardless of whether it has actually exercised supervision or control over the

work.' (Ross v. Curtis-Palmer Hvdro-Electric Co.. 81 N.Y.2d 494, 500 [1993]; citation

omitted)." Jones v. Powell Play^ Hnnsing Development Fund Comnanv. Inc.. 12 Misc.3d

1182(A), 824 N.Y.S.2d 763 (Table), 2006 WL 1933259 (N.Y.Sup.), 2006 N.Y. Slip. Op.

51369(U)(Sup. Ct, Kings Cty., 2006) The statute is to be liberally construed to accomplish

its protective goals. (Id., citing Martinez v. Citv ofNew York. 93 N.Y.2d 322,326 [1999]).

8 of 105 of 7



The core objective of the scaffold law in requiring protective devices for those working at

heights is to allow them to complete their work safely and prevent them fiom felling.

Partridge v. Waterloo Cent School Dist. 12 A.D.3d 1054,784 N.Y.S.2d 767 (4 Dept. 2004).

17. Specifically,Labor Law 240(1) provides:

"Allcontractors andowners andtheir agents, except owners ofoneandtwo-femily dwellingswho contract for but do not direct or control the work, in the erection, demolition, repairing,altering, painting, cleaning or pointing of a building or structure shall furnish or erect, orcause to befurnished or erected for theperformance of such labor, scaffolding, hoists, stays,ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices vdiich shallbesoconstructed, placed and operated asto give proper protection toa person soemployed.*'

18. "It is wellsettled that Labor Law240(1) wasenacted 'to prevent those type of accidents

in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to

shield the injured woricer from harm directly flowing from the application of the force of

gravity toan object orperson."* Rodriguez v. Citv ofNew York, 13 hfisc.3d 1220(A), 2006

WL 2882585 (Table)(N.Y.Sup.), 2006 N.Y. Slip. Op. 51918(U) (N.Y. Sup. Q., Kings Cty.,

2006) (citing Ross v.Curris-Palmer Hvdro-Elec. Co.. 81 N.Y.2d 494,501 [1993]).

19. PlaintifPs case isa classic iqiplication of Labor Law 240(1). Even less compelling facts

have already been addressed by the Appellate Division 1®* Department and resolved in fevor

of an injured worker plaintiff. In the Orellano case cited below Uiere was not even the

allegation ofa ladder defect toexplain the happening yet the court readily applied Labor Law

240(1). The facts of that case as seen below are othenmse so highly similar as to beyond

cavil grant this plaintiff his relief.

"Plaintiff Guillermo Orellano, a construction worker, was injured when he fell fi:om anA>fi:ame ladder while installing a light fixture as part of a renovation project at 29 East 37thStreet There were no apparent defects in the ladder, nor was the floor on which the ladderrested defective. There were no protective devices on the ladder that would have preventedplaintiffs fell. Orellano, who was alone when the accident occurred, gave severalexplanations as to what caused him to fiill. The ladder may have shifted as Orellano reachedto affixa bolt that was the furthest firom wherehe was standing on the ladder,or his foot may

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have slipped ftom theladder's rung, orhemay have simply lost hisbalance."Plaintiffit moved for partial summary judgment onliability under Section 240(1) ofNew

York's Labor Law, which themotion court denied on the grounds thatOrellano's renditionsof how the accident occurred, as well as the possibility that his own negligence could befound by a jury to have been the sole proximate cause of his injury, rendered summaryjudgment inappropriate."

'̂ Regardless of the precise reason for his fall or whether Orellano acted negligently, orwhether defendants were in complete compliance with the Industrial Code, Orellano isentitled to summary judgment ontheLabor Law Section 240(1) claim."Orellano v. 29 East 37th Street Realty Corp. 292 A.D.2d 289,740 N.Y.S.2d 16,(lDept,2002).

20. As the Court should note, the fects of the Orellano case are directly onpoint Normally

we would wait to complete discovery of the defendants before moving for summary

judgment However, due to video proof ofthe accident, there are no issues of fact Also,

there is no question that the plaintiff isin tiie class ofindividuals, who are protected by Labor

Law Section 240 and, therefore, heisentitled tosummary judgment onthe issue ofliability.

WHEREFORE, plaintiff MARK NORTHUP respectfully requests that the within

motion be granted inits entirety, together with such other and tiirth^ reliefas to this Court

deems just and proper.

Dated: New York, New YorkDecember 8,2016

Thomas G. Cascione, Esq.

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IFILED: NEW YORK COONTY CLERK 04/05/2016 03:34 PMINDEX NO. 152883/2016

RECEIVED NYSCEF: 04/05/2016NYSCEF DOC. NO. 1


Index No.:

Date Purchased:

•X SUMMONS

Plaintiffdesignates NEW YORKCountyas the placeoftrial.

The basis ofvenue is:SITE OF OCCURRENCE ANDBUSINESS ADDRESS OFDEFENDANTS

Defendant's Address:

-X 200 Madison AvenueNew York, New York 10016

MARKNORTHUP,

Plaintiff,

-against-


Defendants.

To the above named Defendants:

You are hereby summoned to answer the complaint in this action, and to serve acopy of your answer, or, if the complaint is not served with this summons, to serve a notice ofappearance on the PlaintifPs attorneys widiin twenty days after the service of this summons,exclusive of the day of service, where service is made by delivery upon you personally withinthe state, or, within 30 days after completion of service where service is made in any othermanner. In case of your failure to appear or answer, judgment will be taken against you bydefault for the relief demanded in the complaint.

Dated: New York, New YorkApril 5,2016 CASCIONE, PURCIGLIOTTI & GALLUZZI, PC

Thomas G. Cascione, Esq.CASCIONE, PURCIGLIOTTI & GALLUZZI, P.C.Attomeys for PlaintiffMARKNORTHUP20 Vesey Street, Suite 1100New York, New York 10007(212)964-9640Our File No.: 3979

To: 200 MADISON ASSOCIATES, L.P.200 Madison Avenue

New York, New York 10016

GEORGE COMFORT & SONS, INC.200 Madison Avenue


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NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 12/08/2016FILED: NEW YORK COUNTY CLERK 03/27/2017 02:37 PM INDEX NO. 152883/2016


SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEWYORK Index No.:

-X

MARKNORTHUP.

Plaintiff, VERIFIED COMPLAINT

-against-


Defendants.

Plaintiff MARK NORTHUP, by his attorneys, CASCIONE, PURCIGLIOTTI &

GALLUZZI, P.C., complaining of the Defendants, respectfully alleges, upon information and

belief, as follows:

AS AND FOR A FIRST CAUSE OF ACTIONON RFHAI.F OF PI.AINTIFF MARK NORTHUP

1. That the cause of action alleged herein arose in the County of New York, in the

State ofNew York.

2. That on May 3, 2014, and at all times herein mentioned. Defendant, 200

MADISON ASSOCIATES, L.P., wasandstill is a domestic Limited Partnership duly organized

and existing underandby virtue ofthe laws ofthe Stateof NewYork.

3. That on May 3, 2014, and at all times herein mentioned. Defendant, GEORGE

COMFORT& SONS, INC., was and still is a domestic corporationduly organized and existing

under and by virtue ofthe laws ofthe State ofNew York.

4. Thaton May 3,2014, and at all times hereinmentioned. Defendant 200

MADISON ASSOCIATES, L.P., was and still is a foreign partnership duly licensed to do

business in the State ofNew York.

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5. That on May 3,2014, and atalltimes herein mentioned. Defendant GEORGE

COMFORT & SONS, INC. was and still is a foreign corporation duly licensed to dobusiness in

the State ofNew York.

6. ThatonMay 3,2014, andatall times hereinafter mentioned. Defendant 200

MADISON ASSOCIATES, L.P. maintained a principal place of business located at 200

Madison Avenue, New York, New York 10016.

7. That on May 3, 2014, and at all times herein mentioned. Defendant 200

MADISON ASSOCIATES, L.P. owned the premises located at 200 Madison Avenue, New

York, New York 10016.

8. Thaton May3,2014, andat all times herein mentioned. Defendant 200

MADISON ASSOCIATES, L.P. its agents, servants and employees operated the aforesaid

premises and surrounding areas.


MADISON ASSOCIATES, L.P. its agents, servants and employees managed the aforesaid



MADISON ASSOCIATES, L.P. its agents, servants and employees controlled the aforesaid


11. That on May 3, 2014, and at all times herein mentioned, Defendant 200

MADISON ASSOCIATES, L.P. its agents, servants and employees maintained the aforesaid


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12. That on May 3, 2014, and at all times heiein mentioned. Defendant 200

MADISON ASSOCIATES, L.P. its agents, servants and employees supervised the aforesaid

premisesand surroundingareas.


MADISON ASSOCIATES, L.P. its agents, servants and employees performed inspections and

repairs to theaforesaid premises andsurrounding areas.

14. That onMay 3,2014,and atall times hereinafter mentioned. Defendant

GEORGE COMFORT & SONS, INC. maintained a principal place of business located at 200

Madison Avenue, New York, New York 10016.

15. TTiat on May 3, 2014, and at all times herein mentioned. Defendant GEORGE

COMFORT & SONS, INC. owned the premises located at 200 Madison Avenue, New York,

New York 10016.

16. That onMay 3,2014,andatall times herein mentioned. Defendant GEORGE

COMFORT & SONS, INC., its agents, servants and employees operated the aforesaid premises

and surrounding areas.

17. ThatonMay3,2014, andat all times herein mentioned. Defendant GEORGE

COMFORT & SONS, INC. its agents, servants and employees managed the aforesaid premises


18. That on May 3, 2014, and at all times herein mentioned. Defendant GEORGE

COMFORT & SONS, INC. its agents, servants and employees controlled the aforesaid premises


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COMFORT & SONS, INC. its agents, servants and employees maintained the aforesaid



COMFORT & SONS, INC. itsagents, servants and employees supervised theaforesaid premises



COMFORT & SONS, INC. its agents, servants and employees performed inspections and

repairs to the aforesaidpremisesand surroundingareas.

22. That on May 3, 2014, and at all times herein mentioned, within the premises of

200 Madison Avenue, New York, New York 10016, there were certain repairs being performed

in an elevated area on the loading dock level.

23. That on May 3, 2014, and at all times herein mentioned, COMFORT

MAINTENACECORP., was hired and/or retained pursuant to a written contract or agreement to

perform certain tasks andservices related to the repairs within theaforementioned premises. L.P.

24. That on May 3,2014, and at all timeshereinmentioned, PlaintifTMARK

NORTHUP was an employee of COMFORT MAINTENACE CORP. engaged in repairs to the

aforementioned premises.

25. That on May 3,2014, and at all times herein mentioned. Plaintiff MARK

NORTHUP was lawfully within the above-mentioned premises while in the course of his

employment.

26. That the Defendants, their agents, servants and/or employees had the duty to

provide the Plaintiffwith a safe place to work.

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27. That the Defendants, their agents, servants and/or employees had the non-

delegable duty to seethatthewodc sitewas kept reasonably safe and of dangers and hazards

to those workers lawfully thereat.

28. That on May 3, 2014, and at all times herein mentioned, while Plaintiff MARK

NORTHUP was lawMly and carefully performing his work duties upon said premises, in the

course of his employment, hewascaused to fall from an elevation to the ground by reason ofthe

negligence of the Defendants, its agents, servants and/or employees in theownership, operation,

direction, supervision, possession, control, construction, rehabilitation and/or alteration of said

premises and Plaintiff sustained the injuries hereinafter alleged.

29. That the Defendants, their agents, servants and/or employees were negligent,

reckless andcareless in the ownership, operation, maintenance, control, possession, siq)ervision,

direction, construction, inspections, management, renovation, rehabilitation and/or alteration of

the said premises in that they failed to provide the Plaintiff with a safe place to work; and the

Defendants were otherwisenegligent,recklessand careless.

30. That the Defendants, their agents, servants and/or employees had actual and/or

constructive notice of the dangerous anddefective conditions existing upon the work site.

31. That the incident, and the injuries resulting therefrom, were caused by reason of

thenegligence of theDefendants, theiragents, servants and/or employees without anyfault, want

or care of culpable conduct on the part ofthe Plaintiffcontributingthereto.

32. That by reason of the foregoing. Plaintiff has been rendered sick, sore, lame,

maimed and disabled, and so remains. That he has been unable to attend to his usual vocation

and activities and that he has been obliged to expend and will in the future expend sums of

money for medical aid and attention, and that by reason of the foregoing Plaintiff has been

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damaged in an amount which exceeds the jurisdictional limitations of all courts that would

otherwise have jurisdiction over this action.

AS AND FOR A SECOND CAUSE OF ACTIONON BEHALF OF PLAINTIFF MARK NORTHUP

33. Plaintiff MARK NORTHUP repeats, reiterates and realleges each and every

allegation contained in paragraphs "1" throu^ "32"together with die same force and effect as

though folly set forth herein.

34. That on May 3, 2014, and at all times herein mentioned, there existed, in full

force and effect, within the State of New York, Section 200 of the Labor Law of the State of

New York.

35. That by reason of the conduct of the Defendants as aforesaid, the Defendants

violated Section 200 ofthe Labor Law ofthe State ofNew York.

36. That the violations of the afore-cited section of the Labor Law of The State of

New York were the proximate cause of the PlaintifTs injuries without Plaintiff MARK

NORTHUP in any way contributing thereto.

37. Thatby reason of the foregoing. Plaintiffhas beendamaged in an amount which

exceeds thejurisdictional limitations ofall lowercourts whichwould otherwise havejurisdiction

over this action, togetherwith the interest,costs and disbursements ofthis action.

AS AND FOR A THIRD CAUSE OF ACTION

ON BEHALF OF PLAINTIFF MARK NORTHUP

(LABOR LAW SECTION 2401

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allegation contained in paragraphs "1" through "37"together with the same force and effect as

though fully set forth at length herein.

39. That on May 3, 2014, and at all times herein mentioned, there existed, in full

force and effect, within the State of New York, Section 240 of the Labor Law of the State of

New York.

40. That by reason of the conduct of the Defendants as aforesaid, the Defendants

violated Section 240 ofthe Labor Law ofthe State ofNew York.


New York were the proximate cause of the plaintifPs injuries which were caused by gravity

related hazards.


New York were the proximate cause of the plaintiffs injuries without Plaintiff MARK

NORTHUP in any way contributing thereto.

43. That by reason of the foregoing. Plaintiff has been damaged in an amount which

exceeds the jurisdictional limitations ofall lower courts which would otherwise have jurisdiction

over this action, together with theinterest, costs and disbursements ofthis action.

AS AND FOR A FOURTH CAUSE OF ACTIONON BEHALF OF PLAINTIFF MARK NORTHUP

LABOR LAW SECTION 241(€\


allegation contained in paragraphs "1" through "43",together with the same force and effect as

though fiilly set forth at length herein.

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45. That at all times hereinafter mentioned, defendants, their agents, servants and

employees violated Labor Law §241(6) in that they violated applicable sections ofthe Industrial

Code.

46. That at all times hereinafter mentioned, defendants, their agents, servants and

employees, violated Rule 23 ofthe Industrial Code ofthe State ofNew York Sections 23-1.7,

23-1.7(a), 23-1.8(c)(l), 23-5.1,23-5.1(i) and 23-6.1.

47. That the violation ofthe afore-cited sections ofthe Industrial Code ofThe State of

New York was the proximate cause ofthe Plaintiff MARK NORTHUP s injuries without this

plaintiff inanyway contributing thereto.

48. That by reason ofthe foregoing, Plaintiff has been damaged in an amount which

exceeds the jurisdictional limitations of all lower courts which would otherwise have jurisdiction

over this action, together with the interest, costs and disbursements ofthis action.

WHEREFORE, PlaintiffMARK NORTHUP demands judgment against the Defendants

in the First, Second, Third and Fourth causes of action, in an amount which exceeds the

jurisdictional limits of all courts that would otherwise have jurisdiction over this action, together

with the costs and disbursements ofthis action.

Dated: New York, New YorkApril 5,2016

Thomas G. Cascione, Esq.CASCIONB, PURCIGLIOm & GALLUZZI, P.C.Attorneys forPlaintiffMARK NORTHUP20 Vesey Street, Suite 1100New York, New York 10007(212)964-9640; [email protected] File No.: 3979

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ATTORNEY'S VERIFICATION

THOMAS G. CASIONE, an attorney duly admitted to practice before the Courts of theState ofNew York, afBrmsthe following to be true under the penaltiesofpeijury:

I am an attomey at CASCIONE, PURCIGLIOTTI & GALLUZZI, P.O., attorneys ofrecord for Plaintiff^ MARK NORTHUP. I have read the annexed SUMMONS ANDCOMPLAINT and know the contents thereof, and the same are true to my knowledge, exceptthose matters thereinwhich are stated to be alleged upon information and belief,and as to thosematters I believe them to be true. My belief, as to those matters therein not stated uponknowledge, is baseduponfacts, records, andotherpertinent information contained in myfiles.

The reason this verification is made by me and not Plaintiff is that Plaintiff does notreside in the countywherethe attorneys for the plaintiffmaintain their offices.

Dated: New York, New YorkApril 5,2016

THOMAS G. CASIONE

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SUPREME COURT OF THE STATE OFNEW YORKCOUNTY OF NEW YORK _=MARKNORTHUP,

Plaintiff,

-against-

Index No.

200 MADISON ASSOCIATES, L.P. and GEORGE COMFORT &SONS, INC.

Defendant.

SUMMONS AND VERIFIED COMPLAINT

200 MADISON ASSOCIATES, L.P.200 Madison Avenue


GEORGE COMFORT & SONS, INC.200 Madison Avenue


'Via Secretary ofState

-Via Secretaiy ofState

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NYSCEF - New York County Supreme Court

Confirmation Notice

This is an automated response for Supreme Court / Court of Claims cases. The NYSCEF site hasreceived your electronically filed document(s) for:

MARK NORTHUP - v. - 200 MADISON ASSOCIATES, L.P. et al

152883/2016

Assigned Judge: None Recorded

Documents Received on 04/05/201e 03:34 pm

Doc # Document Type1 SUMMONS + COMPLAINT

Does not contain an SSN or CPI as defined in 202.5(e) or 206.5(e)

Filing User

Motion #

Name: KELLY L MURTHA

Phone#: 212-964-9640

Fax#:

E-mail Address:

Work Address:

[email protected]

20 Vesey Street, Suite 1100New York, NY 10007

E-maii Notifications

An e-mail notification regarding this filing has been sent to the following address(es) on

04/05/2016 03:34 PM:

MURTHA, KELLY L - [email protected]

NOTE: If submitting a working copy of this filing to the court, you must includeas a notification page firmly affixed thereto a copy of this Confirmation Notice.

Hon. Milton A. Tingling, New York County Cierk and Clerk of the Supreme Court

Phone: 646-386-5956 Website: http://www.nycourts.gov/courts/1jd/supctmanh/county_clerk_operations.shtml

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Page 1 of 1




COUNTY OF NEW YORK

X Index No.: 152883/2016

MARK NORTHUP, (EOF)

Plaintiff,

V. VERIFIED ANSWER TO

COMPLAINT

200 MADISON ASSOCIATES, L.P. AND GEORGE

COMFORT & SONS, INC.,

Defendants.X

Defendants, George Comfort & Sons, Inc. and 200 Madison

Owner, LLC s/h/a 200 Madison Associates, L.P., by their

attorneys, EUSTACE, MARQUEZ, EPSTEIN, PREZIOSO & YAPCHANYK,

answer the Complaint of the Plaintiff by stating as follows:

1. Deny, upon information and belief, the allegations of

paragraphs 4, 5, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 21, 28,

29, 30, 31, 32, 35, 36, 37, 40, 41, 42, 43, 45, 46, 47 and 48.

2. Deny, upon information and belief, the allegations of

paragraph 2, except to admit that defendant, 200 MADISON OWNER, LLC

is a foreign limited liability company.

3. Deny having knowledge or information sufficient to form a

belief as to the truth of the allegations of paragraphs 22 and 23.

4. Deny having knowledge or information sufficient to form a

belief as to the truth of the allegations of paragraphs 26 and 27 and

respectfully refers all questions of law to this Honorable Court.

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5. Respond to paragraph 33, 38 and 44 of the Complaint by

repeating, reiterating, and realleging all responses given to the

paragraphs referred to therein with the same force and effect as if

herein set forth at length.

AS AND FOR A FIRST AFFIRMATIVE DEFENSE THESE

ANSWERING DEFENDANTS ALLEGE AS FOLLOWS:

6. The injuries alleged to have been suffered by the Plaintiff

were caused, in whole or part, by the conduct of Plaintiff.

Plaintiff's claims therefore are barred or diminished in the

proportion that such culpable conduct of Plaintiff bears to the total

culpable conduct causing the damages.

AS AND FOR A SECOND AFFIRMATIVE DEFENSE THESE


7. Pursuant to CPLR Article 16, the liability of these

Defendants to the Plaintiff for non-economic loss shall not exceed

the equitable share of these Defendants determined in accordance with

the relative culpability of each person/party causing or contributing

to the total liability for non-economic loss.

AS AND FOR A THIRD AFFIRMATIVE DEFENSE THESE


8. Upon information and belief the causes of action alleged in

the Complaint of the Plaintiff fail to properly state, specify or

allege a cause of action on which relief can be granted as a matter

of law.

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AS AND FOR A FOURTH AFFIRMATIVE DEFENSE THESE


9. That recovery, if any, on the Complaint of the Plaintiff

shall be reduced by the amounts paid or reimbursed by collateral

sources in accordance with CPLR 4545(c).

WHEREFORE, these Defendants demand judgment dismissing the

Complaint, together with costs and disbursements, and in the

event any judgment or settlement is recovered herein against

these Defendants, then these Defendants further demand that such

judgment be reduced by the amount which is proportionate to the

degree of culpability of any plaintiff, and these Defendants

further demand judgment against each other party on the

respective crossclaims and/or counterclaims.

DATED: December 1, 2016

New York, New York

Yours, etc.

EUSTACE, MARQUEZ, EPSTEIN,

PREZIOSO & YAPCHANYK

Attorneys for DefendanbsGEORGE COMFORT & SONS, INC. AND

200 MADISON OWNER, LLC S/H/A 200MADISON ASSOCIATES, L.P.

Office and Post Office Address

55 Water Street, 29th Floor


(212) il2-4>a0

Richard J. Freire

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To:

Cascione, Purcigliotti & Galluzzi, P.CAttorneys for PlaintiffMark Northup20 Vesey Street, Suite 1100New York, New York 10007

5 of 32




-X Index No: 152883/2016MARKNORTHUP,

Plaintiff, PLAINTIFF'S AFFIDAVIT

-against-

200 MADISONASSOCIATES, L.P. andGEORGE COMFORT & SONS, INC.,

Defendants.

STATE OF NEW YORK }ss:

COUNTY OFNEW YORK }

MARK NORTHUP being duly sworn deposes and says:

1. 1am the plaintiff captioned above and as such I am fully familiar with the facts of this

case and 1make this affidavit upon personal knowledge and upon information and belief.

Those matters stated upon information and belief are based upon the research and

investigations performed by my attorneys and asto those things 1believe them tobetrue.

2. My accident occurred on the aftemoon ofMay 3, 2014.1 was employed on that date by

Comfort Maintenance Corp. which was an independent corporation created by defendant

GEORGE COMFORT & SONS, INC for the purpose of maintaining its headquarters

building at200 Madison Avenue, New York, New York 10016. The building was owned

by defendant 200 MADISON ASSOCIATES, L.P. which was another entity created by

defendant GEORGE COMFORT & SONS, INC. for the purpose of independently

owning the property.

3. At the time ofmy accident one ofthe building's ground floor tenants was undergoing a




major construction renovation. As partof thatproject it was decided to connect that space

to the building's air conditioning system whereas previously the space had its own

cooling tower and system. During that process it was necessary to shut the main valves

that controlled the flow of water into and out of the cooling tower. It was then my job to

go to the loading dock area and use the available ladder to climb up and turn the valves

back on.

4. The ladder was already present on the loading dock. It was an A-ffame ladder but I had

no co-worker present to steady it so I left it leaning against the wall and I climbed around

8 rungs up to the top to getaccess to the valve. Thevalve was sticking closed and I tried

to use a piece of pipe for leverage however I still hadto leanmyweight onto it. Suddenly

the vedve spun free and my momentum caused me to lose balance and fall. I tried to get

mybody away from the ladder so it didn't come down on top of me. I landed on my left

foot and badlyinjured it suchthat I eventually neededa left foot subtalar fusion..

5. I was able to obtain the building's video which shows my accident and then shows other

workers trying to complete my task. It shows how shaky the ladder was once it was

opened up and that a second worker was needed to steady the ladder once the man had

climbed up it. I was not provided an assistant to hold die ladder. There was no other

equipmentprovided to me and no safety equipment that I failed to use.

6. I was not employed by either defendant and my paycheck was written by Comfort

Maintenance Corp. The task that I was performing that day was part of an ongoing

construction project on the premises and not routine maintenanceor cleaning.

7. My attorney informs me that my accident was a situation covered by Section 240 of the

New York Labor Law and that therefore I am entitled to summary judgment on the issue



Dated:

of liability. I ask the court to grant me summary judgment.

WHEREFORE, I respectfully ask that the Court make and enter an order granting me

summary judgment and further ask for suchother reliefas the courtmay deem fitting and

proper.

New York

nA./ , 2016

Sworn to before me on the day of 2016

RK NORTHjUP

Notary Public

THOMAS GERARD CASCIONENotary Public. State ofNew York

No. 02CA4982777Qualified InWestchester County

Commission Expires June 10,2QZ^



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COUNTY OF NEW YORK

--------------------------------------------------------------------------x

MARK NORTHUP,

Plaintiff,

v.

200 MADISON ASSOCIATES, L.P. AND GEORGE

COMFORT & SONS, INC.,

Defendants.

--------------------------------------------------------------------------x

Index No.: 152883/2016

AFFIRMATION IN

OPPOSITION

Christopher M. Yapchanyk, an attorney duly admitted to practice law in the Courts of the

State of New York, affirms the following under the penalties of perjury pursuant to C.P.L.R. §

2106:

1. I am a member of the law firm EUSTACE, MARQUEZ, EPSTEIN, PREZIOSO

& YAPCHANYK, attorneys for the Defendants 200 MADISON ASSOCIATES, L.P. AND

GEORGE COMFORT & SONS, INC. (hereinafter collectively referred to as “George Comfort”)

and as such, I am fully familiar with the facts and circumstances herein.

2. This motion is submitted in opposition to Plaintiff’s motion made pursuant to

C.P.L.R. §3212 for summary judgment on the issue of liability against George Comfort in

accordance with New York State Labor Law § 240.

3. Plaintiff’s motion for a determination on liability, made after George Comfort

Answered the Complaint and before even the first preliminary conference held in this Court is

the textbook definition of premature. It may very well be that Plaintiff is entitled to a judgment

on liability as the facts develop in this case, but Plaintiff cannot file suit, receive an Answer, state

what he said happened and then win on motion.



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4. This case arises from an alleged fall from a ladder that occurred on May 3, 2014

at 200 Madison Avenue, New York, New York 10016. As admitted in the Verified Answer,

George Comfort does own and manage building. At this point, these are the only known facts as

they were admitted by George Comfort in its Answer.

5. Plaintiff’s motion is supported by an affidavit from Plaintiff describing what he

claims he was directed to do: shut water valves in the building to stop the flow of water to a

portion of the building where construction was ongoing. (Exhibit C to Plaintiff’s moving papers).

Plaintiff arrived that the location of his work and climbed a folded A-frame ladder that was

leaning against a wall. (Exhibit C of Plaintiff’s moving papers). At some point while turning the

valve, Plaintiff lost his balance and fell from the ladder. (Exhibit C of Plaintiff’s moving papers).

6. Additionally, Plaintiff purports to support his motion by enclosing still

photographs, or rather screen grabs, from a video recording of the accident at the loading dock

where Plaintiff’s incident occurred. (Exhibit D to Plaintiff’s moving papers). Plaintiff’s counsel

then asks “Any questions?” (Cascione Aff. in Supp. ¶ 9).

7. Plaintiff has not met his prima facie burden for summary judgment. He relies on

his own self-serving version of the facts, which in and of themselves create questions of fact, and

still shots taken of an unsubstantiated video.

8. First, Plaintiff’s affidavit fails to set forth a prima facie case for summary

judgment under Labor Law § 240. His affidavit claims that Plaintiff worked for Comfort

Maintenance, a spin-off company of George Comfort to maintain the building. The affidavit also

claims that a tenant in the building was renovating space. However, Plaintiff’s affidavit does not

state that he was working directly for the tenant or contractors of the tenant in the scope of that

construction project. Plaintiff’s affidavit fails to state where this valve is relative to the



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construction site. Plaintiff has submitted no evidence demonstrating the work he was performing

directly related to the ongoing construction (indeed, Plaintiff does not submit any evidence that

there was any ongoing construction) as supposed to routine tasks often performed by employees

of Comfort Maintenance for tenants of the building throughout a regular work week. As such

Plaintiff’s affidavit fails to establish he was covered worker under Labor Law § 240. Parente v.

277 Park Ave, LLC, 63 A.D.3d 613 (1st Dep’t 2009).

9. Secondly, Plaintiff’s own affidavit creates issues of fact as to whether Plaintiff

himself was the sole proximate cause of the accident. Plaintiff admits that he climbed a folded A-

frame ladder that was leaning against a wall, 8-rungs in the air in an attempt to reach the valve.

(Exhibit C). Plaintiff incredibly does not even offer a reason why he used the ladder in this

fashion; he simply states his doing so as a routine fact. However, the fact that Plaintiff used a

folded A-Frame ladder leaning against the wall could be evidence of Plaintiff being the sole

proximate cause of his accident, eliminating a determination of liability in his favor under Labor

Law § 240 at this point so early in the case’s life. See Noor v. City of New York, 130 A.D.3d

536 (1st Dep’t 2015); Naleap v. South Hill Business Campus, LLC, 123 A.D.3d 1190 (3d Dep’t

2014). Importantly, Plaintiff’s affidavit fails to say why he did not open the A-Frame ladder.

Given the law described in both Noor and Naleap and the fact there has been absolutely no

discovery in this case, Plaintiff cannot obtain a determination of liability under Labor Law § 240.

10. Plaintiff also attests that no assistant was with him and that opening the ladder

would have been useless since the video shows the ladder shakes. (Exhibit C). This is a complete

red herring to try and avoid the fact that Plaintiff used an A-frame ladder in the closed position.

His affidavit never claims he was directed to use the ladder in such a way or that no other proper

equipment was available. Plaintiff has not established prima facie the failure to provide proper



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equipment under Labor Law § 240. Nalepa v. South Hill Business Campus, LLC, 123 A.D.3d at

1197 (Dismissing Plaintiff’s Labor Law § 240 claim and finding Plaintiff was sole proximate

cause of his accident holding that there was no evidence the defendant directed plaintiff to use a

folded A-frame ladder leaning against a wall nor was the ladder left in that position for use by

plaintiff or other workers). Therefore, on its face, Plaintiff’s affidavit fails to set forth a prima

facie case entitling him to summary judgment under Labor Law § 240.

11. Finally, the surveillance video stills from Plaintiff should be disregarded.

Plaintiff claims that the video that purports to show this accident was obtained by Plaintiff from

George Comfort. (Exhibit C of Plaintiff’s moving papers). However, the video is in no way

authenticated by George Comfort, the apparent owner/operator of the surveillance camera, as a

depiction of the occurrence on May 3, 2014. See e.g. McHugh v. Marfoglia 65 A.D.3d 828 (4th

Dep’t 2009). The chain of custody of the video is not described by Plaintiff. Finally and most

importantly, the video is not even show to this Court in its entirety. Only selected stills from this

video are printed and attached to the motion, with no explanation other than a narration by

counsel [Cascione Aff. in Supp. ¶ 9] who cannot, as a matter of law, testify as to the facts in this

case. Bendik v. Dybowski, 227 A.D.2d 228 (1st Dep’t 1996) (Holding that attorney’s

affirmations not based on personal knowledge of facts have no probative value). Therefore the

evidence submitted to this Court from this purported video is both unauthenticated and

selectively produced without context or explanation from a fact witness.

12. Plaintiff’s counsel correctly concedes that information about the construction, the

ladder, the direction of Plaintiff and the video are in the Defendants’ control. (Cascione Aff. in

Supp. ¶ 10). That is the exact point of Article 31 of the C.P.L.R - to permit an exhaustive review



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of the facts of the case before a decision on liability (or damages) can be rendered, especially as

a matter of law.

13. So to answer to Plaintiff’s counsel’s point – yes, there are plenty of questions that

have to be resolved. Discovery has not even begun, let alone concluded. This motion is made

immediately after issue was joined and before the first preliminary conference; indeed Plaintiff

has to serve his Bill of Particulars.

14. Plaintiff may very well be entitled to summary judgment on Labor Law § 240 –

eventually. But a determination on the liability issue should only be made after the close of

discovery. Plaintiff’s motion for summary judgment on the issue of liability should be denied as

premature.

WHEREFORE, it is respectfully requested that the Court issue an Order pursuant to

C.P.L.R. §3212, denying Plaintiff’s motion in its entirety along with such other and further relief

as this Court deems just and proper.

DATED: New York, New York

January 31, 2017

_________________________________

Christopher M. Yapchanyk, Esq.

EUSTACE, MARQUEZ, EPSTEIN,

PREZIOSO & YAPCHANYK


New York, New York 10041-2899

(212) 612-4230



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TO:

Cascione, Purcigliotti & Galluzzi, P.C.

Attorneys for Plaintiff

Mark Northup

20 Vesey Street, Suite 1100


(212) 964-9640



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Index No.: 152883/2016 (ECF)


COUNTY OF NEW YORK

MARK NORTHUP,

Plaintiff,

against

200 MADISON ASSOCIATES, L.P. AND GEORGE COMFORT & SONS,

INC.,

Defendants.

AFFIRMATION IN OPPOSITION

__________________________________________________________________________

EUSTACE, MARQUEZ, EPSTEIN, PREZIOSO & YAPCHANYK

Attorneys for Defendants

George Comfort & Sons, Inc. Office and Post Office Address



(212) 612-4200



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COUNTY OF NEW YORK

-X

MARKNORTHUP,Plaintiff, REPLY AFFIRMATION

-against- Index No.: 152883/16


Defendants.X

THOMAS G. CASCIONE, an attorney duly admitted to practice law before the Courts of

the State ofNew York, affirms the truth of the following under the penalties ofpeijury:

1. I am a member of the firm of CASCIONE, PURCIGLIOTTI & GALLUZZI, P.C.,

attorneys for the above-captioned plaintiff, MARK NORTHUP. As such, I am fixlly

familiar with the facts and circumstances of this matter based upon a review of the case

file maintained by this office.

2. This affirmationis submitted in further support of plaintiff's motion for partial summary

judgment on this issue of liability. It is respectfully submitted that defendant's

opposition, which consists merely of an attorneys' affirmation, is insufficientas a matter

of law to raise an issue of fact that could preclude a finding of summary judgment on

liability as this time.

SUMMARY JUDGMENT CAN BE GRANTED AT ANY TIME

3. Defendants' response states (paragraph 3) that "plaintiff's motion for a determination on

FILED: NEW YORK COUNTY CLERK 02/01/2017 11:04 AM INDEX NO. 152883/2016


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liability, made...before even the first preliminary conference...is the textbook definition

of premature." It might as well read "before defense counsel can bill a fewdozen

hours on discovery proceedings". There is no such hard andfast rule andthis is a classic

case for the application of summary judgment. Anticipating this argument plaintiff has

citedthe relevant case law in paragraphs ll,12&13ofthe initial affirmation in support

of the motion.

4. This is a one man accident with no witnesses however defendants have a great amount

of nerve terming it an "alleged fall" since it was their ownvideo system which recorded

the entire incident. The occurrence is not in issue in any arguable way.

PLAINTIFF HAS MADE A PRIMA FACIE CASE

5. Defendants' motion opposition makes the following arguments:

"...Plaintiffsaffidavit does not state that he was working directlv for the tenant or

contractors of the tenant in the scone ofthat construction project." (Para 8)

There is of course no such requirement that a worker be working for any

particular entity in a construction projectand defendants cite no law statingsuch.

6. "PlaintifF has submitted no evidence demonstrating the work that he was performing

directlv related to the ongoing construction" (Para 8). Mr. Northup's affidavit stated the

following

"At the time ofmy accidentone of the building's groundfloor tenants was xmdergoing a



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major constniction renovation. As part of that project it was decided to connect that

space to the building'sair conditioning system whereas previously the spacehad its own

cooling tower and system. During that process it was necessary to shut the main

valves that controlled the flow of water into and out of the cooling tower. It was then

my job to go to the loading dock area and use the available ladder to climb up and

turn the valves back on.'' (emphasis added)

The courts have been very lenient in interpreting what constitutes construction or

renovation as opposed to maintenance. This work would clearly be a renovation or

alteration of the premises .Panek v. CoimtvofAlbanv. 99 NY2 452 (2003).

7. ^'Plaintiff admits that he climbed a folded A-frame ladder that was leaning against a wall" ...

"Plaintiff incrediblv does not even offer a reason whv he used the ladder in this

fashion:..."(Para 9) This characterization is incorrect since Mr. Northup states the following:

"The ladder was already present on the loading dock. It was an A-frame ladder but I had

no co-worker present to steady it so I left it leaning against the wall..." He goes on to

explain that the ladderwas unsteady and required someone to steady it (as was shown in the

video) and that no other equipment was provided to him.

8. The" ...observation that plaintiff himself had placed the ladder is of no import as plaintiffs

negligence is immaterial in a Labor Law § 240 (1) claim {see, e.g., Stolt v General Foods

Corp., 81 N.Y.2d 918. 920: Paperman v Turner Constr. Co., 203 AD2d 205: Robinson v

NAB Constr. Corp., suvra, at 87V Klein v. City ofNew York222 A.D.2d 351 (1 Dept. 1995).



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9. Defendants cite Noor v. CityofNew York 130A.D. 3d 536 (1 Dept2015), however that case

held that: "A worker's decision to use an A-frame ladder in the closed position is not a per se

reason to declare him the sole proximate cause of an accident {see Rico-Castro v Do & Co

NY. Catering. Inc.. 60 AD3d 749 r2d Dent 200911."

It went on to distinguish Naleapa v. South Hill Business Campus LLC 123 A.D. 3d 1190

(3 Dept. 2014) which was also cited by defendants, stating that: "Here, plaintiff gave a

specific reason whyhe usedthe ladder in the closed position." Plaintiffherein has explained

that it was a shakyladder and neededa secondset of hands,which he did not have.

THE SURVEILLANCE VIDEO IS ADMISSABLE AND UNDENIABLE

10. Defendants argue that "the surveillance video stills from Plaintiff should be disregarded".

They then go on to talk nonsense about chain of custody and authentication. Nobody in

defendants' camp is denying that it is their own video. Theymade it, they own it and wejust

happen to have a copyof it. If plaintiffs copy is in any way altered or inaccurate they needto

say so. Plaintiff recited that he has seen it and it shows his accident. The arguments about

chainof custody and authentication do not applywhenit is the parties own videorecording.

11. In making this motion plaintiff chose to create still shots for the court's convenience rather

than provide the full disc and expect the court to find a player and sit through the whole

video. We were confident that in this adversary proceeding the defendants' counsel would

raise any improper interpretation of events on our part and keep us honest. To be completely

fair and safe your affirmant provided a copy of our disc for defense coimsel (in addition to



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the earlierone that we provided to defendants' insurer). They have exactlythe same evidence

that we have and were free to cull out their own screen shots if there was any inaccuracy in

what plaintiff presented. There is not and they did not.

DEFENDANT'S OPPOSITION IS INADEQUATE AS IT CONTAINS NO SWORN

STATEMENT OF FACT OR EVIDENCE TO CONTROVERT THE MOTION

12. The very opposition papers cite to the fact that an attorney's affirmation without personal

knowledge has no probative value. Nevertheless that is their sole submission. They have

offered no proof in opposition. Instead they cite to Article 31 of the C.P.L.R. entitling them

'to permit an exhaustive reviewof the facts of the case before a decision on liability..." (Para

12). We must ask then "an exhaustive review of what?" Defendants have the ladder,

defendants control the accident site, defendants employ or control all of the witnesses and

defendants have the original video showing the whole event. The plaintiff has only his sworn

word and a copy of the video, both of which have already been provided to the defense.

Rather than stalling to engage in wasteful (if lucrative to outside counsel) discovery,

defendants were required to come forward with some glimmer of proof that could raise an

issue of fact, they chose not to and the plaintiff should prevail.

WHEREFORE, plaintiff respectfully requests that the within motion be granted in its

entirety, together with such other and further reliefas to this Court seems just and proper.

Dated: New York, New YorkJanuary 31, 2017

Thomas G. Cascione, Esq.



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ATTORNEY'S AFFIRMATION OF SERVICE BY MAIL

STATE OF NEW YORK:

ss.:

COUNTY OF NEW YORK:

KELLY L. MURTHA, an attorney duly admitted to practice law in the State of NewYork affirms the truth of the following under penalty ofpequry:

I am not a party to the action, am over the age ofeighteen (18) years and reside in Bronx,New York.On February 1,2017,1 servedthe withinREPLY AFFIRMATION by electronically filing onthe NYSCEF website and by depositinga true copy thereof in a post-paid wrapper, in an officialdepository imder the exclusive care and custodyof the U.S. Postal Servicewithin New YorkState, addressed to each of the following persons at the last known address set forth after eachname:

EUSTACE, MARQUEZ, EPSTEIN, PREZIOSO & YAPCHANYKAttention: Richard J. Freire, Esq.Attorneys for DefendantsGEORGE COMFORT & SONS, INC. and200 MADISON OWNER, LLCs/h/a 200 MADISON ASSOCIATES, L.P.55 Water Street, 29th FloorNew York, New York 10041(212) 612-4200

Dated: NEW YORK, NEW YORKFebruary 1,2017

Kelly L\9-—



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SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OFNEW YORK IndexNo. 152501/16

MARKNORTHUP,

Plaintiff,

-against-


Defendants.

REPLYAFFIRMATION

CASCIONE, PURCIGLIOTTI & GALLUZZI P.C.Attorneys for Plaintiff

20 Vesey Street, Suite 1100New York, New York 10007

(212) 964-9640

TO: EUSTACE, MARQUEZ, EPSTEIN, PREZIOSO & YAPCHANYKAttention: Richard J. Freire, Esq.Attorneys for DefendantsGEORGE COMFORT & SONS, INC. and200 MADISON OWNER, LLCs/h/a 200 MADISON ASSOCIATES, L.P.55 Water Street, 29th FloorNew York, New York 10041(212) 612-4200



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