At a Part 2 of the Supreme Court of the State
`of New York, held in and for the County of
`Kings, at the Courthouse thereof, located at
`360 Adams Street, Brooklyn, New York
`11201, on the _ day of August, 2017
`
`P R E S E N T: Hon. Gloria M. Dabiri, J.S.C.
`
`_______________________________________________________________x
`
`JENNIFER LEE and RICHARD LEE,
`
`Plaintiffs,
`
`— against —
`BROOKLYN BOULDERS, LLC,
`
`Defendant,
`
`ORDER TO SHOW CAUSE
`
`WITH T.R.O.
`
`Index No. 503080/2013E
`
`I
`
`1
`I
`
`_______________________________________________________________ x
`
`Upon reading and filing the annexed affirmation of Nicholas Hurzeler, sworn to on
`
`August 16, 2017, and the emergency affirmation ofNicholas Hurzeler sworn to on August 16, 2017,
`
`the exhibits annexed thereto; and good and sufficient reason appearing therefor, it is hereby:
`
`ORDERED that Plaintiffs, or their attorneys, Show cause before the Hon. Gloria M.
`
`Dabiri, in Part 2 of this Court, at the Courthouse, 360 Adams Street, Brooklyn, New York 1 1201 on
`
`August
`
`, 2017, at 9:30 am, why an order should not be granted:
`
`(1)
`
`In accordance with CPLR § 2201 , staying the entry ofj udgment until a decision and
`
`order are rendered on the Defendant’s pending post-trial motion for a new trial,
`
`remittitur, and other relief, and until the decision and order is entered with the
`
`County Clerk; and
`
`(2)
`
`For such other and further relief as the Court deems just and proper; and
`
`48244569335811
`
`1
`
`

`

`It is further ORDERED, that effective from the date of this Order, and pursuant to CPLR §§
`
`6301 and 6313, Defendant is granted a Temporary Restraining Order (“TRO”) staying the entry or
`
`execution of judgment pending the hearing and determination of this motion; and
`
`LET service of a copy of this order and the papers upon which it is granted, upon the
`
`attorneys for all parties in the above-captioned action, by
`
`, on or before
`
`, 2017, be deemed good and sufficient service.
`
`ENTER :
`
`J.S.C.
`
`4824-8693-3581.1
`
`2
`
`

`

`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
`____________________________________________________________________X
`
`JENNIFER LEE and RICHARD LEE,
`
`-against—
`
`BROOKLYN BOULDERS, LLC,
`
`Plaintiffs,
`
`Defendant.
`
`_____________________________________________________________________X
`
`Index No. 503080/2013E
`
`AFFIRMATION IN SUPPORT
`
`NICHOLAS HURZELER, an attorney admitted to practice law in the State of New York
`
`hereby affirms the truth of the following under the penalties of perjury:
`
`1.
`
`I am a member of LEWIS BRISBOIS BISGAARD & SMITH, counsel for Defendant
`
`Brooklyn Boulders, LLC, in this action, and I am fully familiar with the facts and circumstances of
`
`this matter based on my review of this firm’s file kept for the defense of the claims, and having
`
`personally prepared the post—trial motion that is pending as of this writing.
`
`2.
`
`I respectfully submit this affirmation in support of Defendant’s motion for an Order:
`
`(a)
`
`In accordance with CPLR § 2201, staying the entry of judgment until a
`
`decision and order are rendered on the Defendant’s pending motion for a new
`
`trial, remittitur, and other relief, and until the decision and order is entered
`
`with the County Clerk; and
`
`(b)
`
`in accordance with CPLR §§ 6301 and 6313, granting a Temporary
`
`Restraining Order (“TRO”) staying the entry or execution of judgment
`
`pending the hearing and determination of this motion; and
`
`(c)
`
`For such other and further relief as the Court deems just and proper.
`
`4824-8693-3531.1
`
`3
`
`

`

`Statement of Relevant Facts
`
`3.
`
`Plaintiff filed this action to recover damages for personal injuries allegedly sustained
`
`in an accident on March 15, 2013, at the Brooklyn Boulders rock climbing gym located at 575
`
`Degraw Street in Brooklyn.
`
`4.
`
`This case was tried and resulted in a verdict in Plaintiff’s favor in the sum of $1.25
`
`million on January 27, 2017. The jury awarded $750,000 for past pain and suffering, and $500,000
`
`for future pain and suffering. A copy of the verdict sheet is annexed Within Exhibit “1 .”
`
`5.
`
`Immediately after the verdict, defense counsel Jim Whalen made an oral application,
`
`on the record, to stay the entry ofjudgment pending the Defendant’s post-trial motion (see relevant
`
`portion of trial transcript dated January 27, 2017, Exhibit “2” at p. 83):1
`
`MR. WHALEN; Your Honor, I would like to reserve a motion to stay the judgment
`for 45 days and make a written motion to the court.
`
`MR. CARMAN:
`
`I have no objection, Judge.
`
`THE COURT: Granted.
`
`6.
`
`By notice of motion dated March 10, 2017, Defendant timely moved, within 45 days,
`
`for a new trial or alternatively, to reduce the amount of the verdict as excessive compensation for
`
`Plaintiff’ s injuries.
`
`7.
`
`Defendant’s motion also seeks a stay, under CPLR §§ 2201, 6301, and 6313, of the
`
`entry or execution of any judgment on the jury verdict pending the hearing and determination of the
`
`motion.
`
`8.
`
`Plaintiff opposed the motion, Defendant filed a reply, and the motion was orally
`
`argued before this Court on May 19, 2017.
`
`1 Only the transcript cover and page 83 are annexed, but the entire transcript was E-Filed on August 3, 2017, and can
`be easily accessed on the E-Filing system.
`
`4824-8693-3581.1
`
`4
`
`

`

`9.
`
`After oral argument, the motion was marked submitted for decision. A decision on
`
`the motion remains pending as of this writing.
`
`10.
`
`Although the decision remains pending, Plaintiff has repeatedly attempted to enter
`
`judgment on the verdict.
`
`11.
`
`On or about May 1, 2017, Plaintiff attempted to enter judgment with the County
`
`Clerk. The judgment was rejected and returned for correction.
`
`12.
`
`On or about July 20, 2017, Plaintiff served a “Proposed Judgment With Notice of
`
`Settlement” (Exhibit “1”).
`
`13.
`
`The Notice states that Plaintiff would appear on August 4, 2017, in this Court and
`
`request that the Court sign the judgment.
`
`14.
`
`Defense counsel E-Filed an affirmation in opposition to the Notice to Enter Judgment
`
`(Exhibit “3”)(without exhibits).
`
`15.
`
`Defense counsel Bianca Nicoletti appeared in this Court on August 4, 2017, in
`
`opposition to the “Proposed Judgment With Notice of Settlement.”
`
`16.
`
`Plaintiff’s counsel did not appear. Defense counsel inquired about the proposed
`
`judgment. The Part Clerk replied that the matter was not on the Court’s calendar, and that the Court
`
`had no intention of taking any action with respect to the proposed judgment.
`
`17.
`
`Thereafter, Nicoletti called Plaintiff‘ s counsel’s office and was told that counsel Still
`
`intends to enter judgment.
`
`18.
`
`Accordingly, upon information and belief, Plaintiff‘ s counsel will make additional
`
`efforts to enter judgment in the near future, even though the decision on the post-trial motion
`
`remains outstanding.
`
`19.
`
`In compliance with Uniform Rule 202.7(f), annexed as Exhibit “4” is a copy of E-
`
`4824-8693-5811
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`5
`
`

`

`Filed correspondence alerting Plaintiff’s counsel that the undersigned would appear in the Ex Parte
`
`Office ofthe Supreme Court, Kings County on August 18, 2017, at 10 AM.
`
`Point 1
`
`A TRO and Stay Are Warranted Because Plaintiff Will Not be Prejudiced
`by 21 Stay of the Entry of Judgment, Defendant Will be Prejudiced Without 3 Stay,
`and as a Matter of Judicial Economy, Judgment Should Not Be Entered
`Until After the Post-Trial Motion Is Decided
`
`20.
`
`Under CPLR § 6313, the court may issue a temporary restraining order where
`
`“irreparable injury, loss or damages will result unless the [non-movant] is restrained before a hearing
`
`can be had.” The moving party must demonstrate: (a) a likelihood of success on the merits; (b) an
`
`irreparable injury absent the injunction; and (c) a balancing of the equities in its favor. Aetna Ins.
`
`Co. v. Capesso, 75 N.Y.2d 860 (1990); Iron Mtn. info. Mgt., Inc. v Pullman, 41 A.D.3d 636 (2d
`
`Dept. 2007); Gerstner v. Katz, 38 A.D.3d 835 (2d Dept. 2007).
`
`2].
`
`
`The purpose of a preliminary injunction is to preserve the status quo. Ruiz v.
`
`Melony, 26 A.D.3d 485 (2006).
`
`22.
`
`Here, this Court should grant a TRO, and a stay of entry of the judgment pending the
`
`outcome of the motion under CPLR § 2201, because: (a) Defendant can show a likelihood of success
`
`on the merits because the judgment should not be entered until the post-trial motion is decided; (b)
`
`Defendant will be irreparably harmed if a judgment is entered; (c) the parties and the Court will
`
`sustain prejudice if the within motion is denied, thus the “balance ofthe equities” weighs in favor of
`
`the Defendant; and (d) the “status quo” can only be preserved by issuing a stay.
`
`23.
`
`First, the instant motion is likely to be granted because entering judgment at this stage
`
`of the proceedings is premature, and would create unnecessary, logistical and procedural difficulties
`
`for the parties and the Court. Thus, Plaintiffs attempt to enter judgment should be stayed. Indeed,
`
`for that reason, this Court already granted a stay immediately after the verdict (Exhibit “2”).
`
`4824-8693-3581.1
`
`6
`
`

`

`24.
`
`It is not only unnecessary to enter judgment at this stage of the proceedings, but
`
`counterproductive.
`
`If the Court grants Defendant’s post—trial motion in any respect (for all the
`
`reasons discussed in that motion and reply), then any judgment entered will have to be vacated in
`
`order to accurately reflect the decision on the post-trial motion. Any alteration ofthe verdict by this
`
`Court in its decision will alter the Plaintiff’ 5 right to enter j udgment, and require a different judgment
`
`to be entered that conforms with the decision on the post-trial motion.
`
`25.
`
`It would be much simpler and easier to simply file a judgment after the decision on
`
`the post-trial motion is rendered, that conforms with the decision.
`
`26.
`
`Thus, a stay is necessary to avoid unnecessary and awkward motion practice to vacate
`
`any judgment entered in advance of the post—trial motion decision.
`
`27.
`
`Plaintiff may assert that the post-trial motion should be denied in every respect, but
`
`has no way of knowing whether that is necessarily the outcome, particularly as Defendant has moved
`
`for several different forms of relief, and in the alternative.
`
`28.
`
`lmportantly, Defendant will be irreparably harmed if a judgment is entered. Plaintiff
`
`may then attempt to execute the judgment and seize assets from the Defendant, requiring more
`
`motion practice and attorney’s fees, even though the post—trial motion remains pending.
`
`29.
`
`The parties and the Court will be prejudiced as a result of such unnecessary motion
`
`practice.
`
`In addition to judgment enforcement efforts, Defendant will be prejudiced because it
`
`cannot appeal from the judgment and post a bond. The judgment will not be a final one because it
`
`will not accurately reflect the decision on the post-trial motion. Defendant cannot appeal from a
`
`judgment that is not final and will be replaced by a different judgment after the post-trial motion is
`
`decided.
`
`30.
`
`Defendant will be obligated to file a notice of appeal from the judgment, then
`
`4324—3693-5811
`
`7
`
`

`

`withdraw the notice of appeal and file another notice of appeal from the second judgment.
`
`Defendant will incur substantial costs associated with purchasing the appeal bond, only to have that
`
`bond become unnecessary and useless in the event that the post—trial motion is granted.
`
`3 l .
`
`By contrast, Plaintiff will not sustain any prejudice if compelled to wait until after the
`
`post-trial motion is decided before entering judgment.
`
`32.
`
`This is the case because interest accumulates at the same statutory rate regardless of
`
`whether judgment is entered or not. See CPLR §§ 5003 and 5004.
`
`33.
`
`Thus,
`
`it makes no difference to the Plaintiff Whether legally or financially that
`
`judgment be entered at this stage of the proceedings.
`
`34.
`
`Finally, the “status quo” can only be preserved by staying Plaintiff’s effort to enter a
`
`judgment. Ruiz v. Melony, m.
`
`35.
`
`Since all the elements of CPLR § 6313 are met,
`
`this Court should grant the
`
`Defendant’s application for a TRO. Plaintiff’s attempts to enter judgment at this stage are
`
`unnecessary, prejudicial, and would create wholly unnecessary and awkward procedural problems,
`
`which can be readily avoided by simply staying the entry of judgment until after the post-trial
`
`motion is decided.
`
`Point 2
`
`After the Return Date the Court Should Grant Defendant’s Motion to Stay
`The Entgy of Judgment Until the Post Trial Motion Is Decided
`
`36.
`
`Under CPLR § 2201, a stay of proceedings should be granted upon such terms as may
`
`be just. This Court is vested with discretion, under § 2201, to stay enforcement of Plaintiff‘s
`
`proposed judgment pending the outcome of the pending post-trial motion. Levy v. Renck, 137
`
`A.D.2d 464 (1 st Dept. 1988); Alec Peters Assocs. v. Roberts, 249 A.D.2d 219, 220 (1st Dept. 1998).
`
`37.
`
`Here, for all the reasons discussed above in Point 1 with respect to the TRO relief,
`
`4824-8693-3581.1
`
`8
`
`

`

`this Court should grant the Defendant’s motion after the return date for the same reasons, and stay
`
`execution of the judgment pending this Court’s decision and order on the post—trial motion that
`
`remains pending as of this writing.
`
`38.
`
`Indeed, avoiding unnecessary and prejudicial procedural difficulties was the whole
`
`purpose of the oral application on the record after the verdict, and it is unclear why, and for what
`
`purpose, Plaintiff is seeking to enter judgment before the post-trial motion is decided.
`
`39.
`
`Entering judgment now serves no purpose and will not accomplish anything.
`
`It
`
`would not in any way affect the rate of interest on the verdict. Entering judgment should properly be
`
`done after this Court decides the post-trial motion.
`
`WHEREFORE, Defendant respectfully requests that the instant motion be granted in all
`
`respects, together with such other and further relief as the Court deems just and proper.
`
`Dated: New York, New York
`
`August 16, 2017
`
`Yours, etc,
`
`LEWIS BRISBOIS ISGA
`
`& SMITH LLP
`
`By“
`
`Nicholas Hurzeler
`
`Bianca Nicoletti
`
`,
`
`Attorneys for Defendant
`7'7 Water Street, Suite 2100
`
`New York, New York 10005
`
`(212) 232-1300
`File No. 28408.195
`
`4824-8693-3581}
`
`9
`
`

`

`TO:
`
`Carman, Callahan & Ingham, LLP
`Attorneys for Plaintiff
`266 Main Street
`
`Farmingdale, New York 11735
`(516) 249-3450
`
`4824-8693-358 l .1
`
`10
`
`

`

`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
`____________________________________________________________________X
`
`JENNIFER LEE and RICHARD LEE,
`
`—against-
`
`BROOKLYN BOULDERS, LLC,
`
`Plaintiffs,
`
`Defendant.
`
`.....................................................................X
`
`Index No. 503080/2013E
`
`EMERGENCY
`
`AFFIRMATION AND
`STATEMENT OF
`COMPLIANCE WITH
`UNIFORM RULE 202.7 i1!
`
`NICHOLAS HURZELER, and BIANCA NICOLETTI, two attorneys admitted to practice
`
`law in the State of New York, affirm, the truth of the following under the penalties of perjury:
`
`1.
`
`We are members of LEWIS BRISBOIS BISGAARD & SMITH, counsel for
`
`Defendant, Brooklyn Boulders, LLC, in this action, and we are fully familiar with the facts and
`
`circumstances of this case based on our review of this firm’s file kept for the defense of the claims.
`
`2.
`
`We respectfully submit this affirmation in support of Defendant’s motion for an
`
`Order:
`
`(a)
`
`Pursuant to CPLR 2201, staying the entry ofj udgment based upon the trial
`
`verdict in this action, pending the decision on the Defendant’s pending
`
`motion for a new trial, remittitur, and other relief, and until the decision and
`
`order is entered with the County Clerk; and
`
`(b)
`
`pursuant to CPLR 6301 and 6313, granting a Temporary Restraining Order
`
`(“TRO”) staying the entry or execution of judgment based upon the trial
`
`verdict pending the hearing and determination of the instant motion; and
`
`(b)
`
`For such other and further relief as the Court deems just and proper.
`
`3.
`
`Defendant has complied with Uniform Rule 202.7(f). Annexed hereto as Exhibit “4”
`
`is a copy of E—Filed correspondence, alerting Plaintiff’s counsel that the undersigned would appear
`
`4324—3693-3531i
`
`l 1
`
`

`

`in the Ex Parte Office ofthe Supreme Court, Kings County on August 18, 2017, at 10 AM.
`
`4.
`
`We submit this motion on an emergency basis because, and as discussed in the
`
`accompanying affirmation in support, Plaintiff is currently making efforts to enter judgment. If a
`
`judgment is entered, the Defendant will be irreparably harmed and will sustain prejudice. Under the
`
`circumstances of this case, a judgment should only be entered after the post-trial motion is decided.
`
`5.
`
`This motion was brought on an emergency basis because, based on the Plaintiff s
`
`ongoing efforts to enter judgment, a motion without a Temporary Restraining Order would have no
`
`immediate effect. Such a motion would have no impact on Plaintiff’s efforts to enter judgment while
`
`the motion is pending.
`
`6.
`
`Indeed, Defendant already requested stay relief in the pending post-trial motion but
`
`Plaintiff has taken the position that without T.R.O. language, she is free to enter judgment.
`
`7.
`
`As noted in the accompanying affirmation in support, after defense counsel Bianca
`
`Nicoletti appeared in Court on August 4, 2017, she called Plaintiff’s counsel’s office and was told by
`
`a secretary for Plaintiff‘s counsel, Jim Carman, that his office would continue efforts to enter
`
`judgment in the immediate near future.
`
`8.
`
`Thus, under the circumstances Defendant was left with no option but to file the
`
`instant motion on an emergency basis and apply for a T.R.O. to stay the execution of judgment
`
`pending the outcome of the order to show cause and post-trial motion.
`
`4824—3593—5811
`
`12
`
`

`

`WHEREFORE, Defendant reSpectfully submits that the instant motion was properly
`
`brought on an emergency basis and that Defendant has complied in all reSpects with Uniform Rule
`
`202.7(0.
`
`Dated: New York, New York
`
`August 16, 2017'
`
`Yours, etc.,
`
`LEWIS BRISBOIS BEGAARD & SMITH LLP
`By: %/'
`
`'
`
`olas Hurze r
`
`B 2
`
`(
`Bianca Nicoletti
`
`‘o w ‘
`
`Attorneys for Defendant
`77 Water Street, Suite 2100
`
`New York, New York 10005
`
`(212) 232-1300
`File No. 28408.195
`
`TO:
`
`Carman, Callahan & Ingham, LLP
`Attorneys for Plaintiff
`266 Main Street
`
`Farmingdale, New York 1 1735
`(516) 249-3450
`
`4824-3693-3531 ,1
`
`13
`
`