FILED: KINGS COUNTY CLERK 09/07/2017 03:36 PM
`FILED: KINGS COUNTY CLERK 09m2017 03:36 PM
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`NYSCEF DOC. NO. 119
`NYSCEF DOC. NO. 119
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`INDEX NO. 503080/2013
`INDEX NO~ 503080/2013
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`R«.C«.IV«.D \lYSCEF: 09/07/2017
`RECEIVED NYSCEF: 09/07/2017
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`SUPREME COURT OF THE STATE OF NEW YORK
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`COUNTY OF KINGS
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`BEE};EIEEQEEEEEEXEBZEE:"""""""""""X
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`Plaintiffs,
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`Index No. 503080/ 13
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`-against—
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`Affirmation in Opposition
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`BROOKLYN BOULDERS, LLC
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`Returnable: September 8, 2017
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`Defendant.
`____________________________________________________________________X
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`James M. Carman, an attorney duly admitted to practice law in the Courts of the State of
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`New York, hereby affirms the following upon information and belief and with knowledge of the
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`penalties for perjury:
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`1.
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`I am a member of the law firm of CARMAN, CALLAHAN & INGHAM, LLP,
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`attorneys for Plaintiffs, Jennifer and Richard Lee, in connection with the above-captioned matter.
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`As such, I am fully familiar with the facts and circumstances of this case based upon a review of the
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`file maintained in our office and a study of the applicable law.
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`2.
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`This Affirmation is submitted in opposition to Defendant’s Order to Show Cause
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`staying the entry ofjudgment until a decision and order are rendered on the Defendant’s post-trial
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`motion for a new trial, remittitur, and other relief, and until the decision and order is entered with
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`the County Clerk. This Affirmation is further submitted in opposition to Defendant’s application
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`for an Order staying the entry or execution ofjudgment pending the hearing of this motion.
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`3.
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`This is an action for serious personal injuries sustained by Plaintiff Jennifer Lee on
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`March 15, 2013 at Defendant’s rock climbing facility. The trial of this action started on January 24,
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`2017 and concluded on January 27, 2017. After deliberation, the jury returned a verdict in favor of
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`FILED: KINGS COUNTY CLERK 09/07/2017 03:36 PM
`FILED: KINGS COUNTY CLERK 09m2017 03:36 PM
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`NYSCEF DOC. NO. 119
`NYSCEF DOC. NO. 119
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`INDEX NO. 503080/2013
`INDEX NO- 503080/2013
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`RMCMIVMD YSCEF: 09/07/2017
`RECEIVED NYSCEF: 09/07/2017
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`Plaintiffs in the total amount of $ 1 ,250,000. 52 Exhibit “1” to the Affirmation of Nicholas
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`Hurzeler dated August 16, 2017
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`4.
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`As referenced by Defendant’s counsel in Defendant’s Affirmation in Support of its
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`Order to Show Cause, after the verdict was read, counsel for Defendant requested permission “to
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`reserve a motion to stay the judgment for 45 days and make a written motion to the court.” E
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`Exhibit “2” to Hurzeler Aff. Your Affirmant had no objection to Defendant’s request. Your
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`Affirmant, however, only agreed to a 45 day stay of the entry of the judgment and did not agree to a
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`stay of the entry of the judgment for a period of time beyond 45 days.
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`5.
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`In accordance with the agreement made in Court on January 27, 2017, Plaintiffs
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`served a Proposed Judgment with Notice of Settlement on July 20, 2017, well after the 45 day
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`period.
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`6.
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`During the course of discovery, Plaintiffs were advised that Defendant maintains
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`applicable insurance coverage in the amount of $1,000,000. Your Affirmant is unaware of any other
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`applicable insurance available to Defendant to satisfy the verdict and judgment.
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`7.
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`The $1,250,000 verdict exceeds Defendant’s available insurance coverage by
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`$250,000. Given the significant risk that Defendant may transfer or deplete its available assets to
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`avoid payment of its $250,000 liability, it is necessary for Plaintiff to enter judgment as soon as
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`possible.
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`A Temporary Restraining Order or Preliminag: Injunction is Not Warranted
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`8.
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`As set forth above, the jury returned a verdict for Plaintiffs in the amount of
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`$1,250,000 - $250,000 above the $1,000,000 coverage available to Defendant. Accordingly, there
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`is a significant risk to Plaintiffs that any further delay in the entry of the judgment may result in an
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`inability to collect from Defendant the $250,000 in excess of the $1,000,000 insurance coverage.
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`FILED: KINGS COUNTY CLERK 09/07/2017 03:36 PM
`FILED: KINGS COUNTY CLERK 09m2017 03:36 PM
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`NYSCEF DOC. NO. 119
`NYSCEF DOC. NO. 119
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`INDEX NO. 503080/2013
`INDEX NO~ 503080/2013
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`R«.C«.IV«.D \IYSCEF: 09/07/2017
`RECEIVED NYSCEF: 09/07/2017
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`As a bond or undertaking has not been filed, entering judgment as soon as possible is necessary to
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`protect Plaintiffs’ interests. In light of the significant and continuing prejudice to Plaintiffs caused
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`by the delay in entering judgment against Defendant, an injunction staying the entry ofjudgment
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`against Defendant should not be issued.
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`9.
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`Pursuant to CPLR §6301, a court may issue a preliminary injunction where the
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`moving party demonstrated the likelihood of success on the merits, irreparable injury absent the
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`injunction, and balancing of the equities in its favor. k Related Properties, Inc. v. Town Bd. Of
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`Town/Village of Harrison, 22 A.D.3d 587, 590 (2nd Dep’t 2005). However, a preliminary injunction
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`is considered a “drastic remedy which should be issued cautiously” because it “prevents litigants
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`from taking actions that they would otherwise be legally entitled to take”. E.
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`10.
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`Defendant argues that it will sufier “irreparable harm” because it may incur
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`additional litigation expenses should Plaintiffs enter a judgment prior to a decision on Defendant’s
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`post-verdict motion to set aside and/or reduce the verdict. Economic loss, however, does not
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`constitute irreparable harm. DiFabio v. Omnipoint Comm’s Inc. 66 A.D.3d 635, 637 (2nd Dep’t
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`2009).
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`11.
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`In addition, Defendant’s claim that a “balancing of equities” favors an injunction
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`staying entry of a judgment appears to rely on the possibility of “awkward” and “unnecessary”
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`motion practice. It is respectfully submitted that this claim of inconvenience should not trump
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`Plaintiffs’ efforts to enter a judgment necessary to protect the $250,000 unsecured debt. While it is
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`true that additional motion practice may be necessary should this Court grant Defendant’s motion,
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`Plaintiffs are willing to engage in such motion practice rather than risk the real possibility of being
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`unable to recover that portion of the verdict in excess of insurance coverage if they are not
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`permitted to enter a judgment.
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`FILED: KINGS COUNTY CLERK 09/07/2017 03:36 PM
`FILED: KINGS COUNTY CLERK 09m2017 03:36 PM
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`NYSCEF DOC. NO. 119
`NYSCEF DOC. NO. 119
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`INDEX NO. 503080/2013
`INDEX NO- 503080/2013
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`RMCMIVMD YSCEF: 09/07/2017
`RECEIVED NYSCEF: 09/07/2017
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`12.
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`As Defendant’s motion for injunctive relief does not establish irreparable harm and
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`its claim of inconvenient motion practice should not outweigh Plaintiffs’ right to enter judgment.
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`Defendant’s application must be denied in its entirety.
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`Defendant Should be Reguired to Post an Undertaking
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`13.
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`“Because preliminary injunctions prevent the litigants from taking actions that they
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`are otherwise legally entitled to take .
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`.
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`. they should be issued cautiously and in accordance with
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`appropriate procedural safeguards. Uniformed Firefighters Association of Greater New York v. City
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`of New York, 79 N.Y.2d 236, 241 (1992). Where, as here, a litigant requests the issuance of
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`preliminary injunction pursuant to CPLR 6301 , the procedural safeguards found in CPLR §6312(b)
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`(requiring the posting of an undertaking) and CPLR §6315 (establishing a procedure for assessment
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`of “damages sustained .
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`.
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`. by reason of the preliminary injunction”) must be utilized.
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`14.
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`Pursuant to CPLR §6312(b), an undertaking is mandatory prior to the granting of a
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`preliminary injunction and the requirement cannot be waived by the court. & Rourke Developers
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`Inc. v. Cottrell-Hajeck Inc., 285 A.D.2d 805 (3rd Dep’t 2001). Accordingly, should this Court
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`determine that a preliminary injunction staying the entry ofjudgment against Defendant is
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`warranted, Plaintiffs respectfully request that the Court also order Defendant to post an undertaking
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`in the amount necessary to protect the plaintiffs’ interest in “all damages and costs which may be
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`sustained by reason of the injunction”. Such an order will protect Plaintiffs from the risk inherent
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`in delaying entry ofjudgment against Defendant and will maintain the status quo until a decision is
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`rendered on Defendant’s post-trial motion.
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`FILED: KINGS COUNTY CLERK 09/07/2017 03:36 PM
`FILED: KINGS COUNTY CLERK 09m2017 03:36 PM
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`NYSCEF DOC. NO. 119
`NYSCEF DOC. NO. 119
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`INDEX NO. 503080/2013
`INDEX NO- 503080/2013
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`RMCMIVMD YSCEF: 09/07/2017
`RECEIVED NYSCEF: 09/07/2017
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`A Stay is not Warranted
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`15.
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`Pursuant to CPLR §2201, a court can only grant a stay “in a proper case.” As noted
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`in the Practice Commentaries for CPLR 2201 (“A Proper Case for a Stay”):
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`“[a] stay of an action can easily be a drastic remedy, on the simple basis that
`justice delayed is justice denied. It should therefore be refused unless the
`proponent shows good cause for granting it. Nothing but good cause would
`make for a ‘proper case.’ Some excellent reason would have to be
`demonstrated before a judge is asked to bring to a halt a litigant's quest for a
`day in court.” Practice Commentary C2201 :7
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`16.
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`Here, Defendant has not demonstrated a good cause for denying Plaintiffs’ right to
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`enter a judgment pursuant to the verdict rendered by the jury approximately 7 months ago. As set
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`forth above, the verdict exceeds the coverage available to Defendant and thus, there is a continued
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`and real risk that Plaintiffs will be unable to recover against the defendant the amount of the verdict
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`that is in excess of the $1,000,000 coverage. The only way for Plaintiffs to mitigate the risk of
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`being unable to recover the $250,000 in excess of insurance coverage, is with the entry of a
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`judgment against Defendant and to attach assets of the defendant that will equal the value of the
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`unsecured verdict.
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`17.
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`Since the granting of a stay under CPLR §2201 is within its discretion, the court may
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`condition the stay “upon such terms as may be just.” & Ilton v. Stage Street Realty Corp., 212
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`A.D.2d 760, (2d Dep't 1995) (holding that the lower court properly granted stay of foreclosure sale
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`on the condition that defendant pay the plaintiff $7,500.00 to defray part of her legal expenses).
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`Accordingly, should the Court determine that a stay of the entry of Plaintiffs’ judgment is
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`warranted, Plaintiffs respectfully request that the Court condition the stay upon the posting of an
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`undertaking.
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`18.
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`At the present time, it is unknown when a decision on Defendant’s motion to set
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`aside the verdict will be rendered. Plaintiffs do know that they face the potential inability to
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`FILED: KINGS COUNTY CLERK 09/07/2017 03:36 PM
`FILED: KINGS COUNTY CLERK 09m2017 03:36 PM
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`NYSCEF DOC. NO. 119
`NYSCEF DOC. NO. 119
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`INDEX NO. 503080/2013
`INDEX NO~ 503080/2013
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`R«.C«.IV«.D \lYSCEF: 09/07/2017
`RECEIVED NYSCEF: 09/07/2017
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`recover the full $1,250,000 verdict rendered by the jury if they are unable to enter a judgment
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`against Defendant in a timely manner. With respect to recovering the full amount of damages
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`awarded to Plaintiffs by the jury, time and delay will benefit Defendant while the prompt entry of
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`judgment will help mitigate the risk that Plaintiffs will be unable to recover the full monetary
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`damages awarded to Plaintiffs. In short, the risk in staying entry of the judgment is assumed solely
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`by Plaintiffs and without any security. Defendant’s application would have that risk remain
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`exclusively with the plaintiffs for an undermined period of time without any showing that the
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`defendant will satisfy the judgment when the application challenging the jury’s verdict is denied.
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`19.
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`Should the Court determine that the entry of the judgment against Defendant should
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`be stayed until the determination of Defendant’s motion to set aside the verdict, Plaintiffs request
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`the Court order Defendant to post an undertaking in an amount equal to the valued of the judgment
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`plus interest and costs and that the same remain in place until such time as a determination of the
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`motion to set aside the verdict is received by Plaintiffs or the filing of a Notice ofAppeal by
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`Defendant and the posting of undertaking in conjunction with the appeal, pursuant to CPLR
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`§55 19 (a).
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`WHEREFORE, it is respectfully requested that Defendant’s motion be denied in its
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`entirety, and that this Court grant such other and further relief as it deems just and proper
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`Dated: Farmingdale, New York
`September 7, 2017
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`James
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`FILED: KINGS COUNTY CLERK 09/07/2017 03:36 PM
`FILED: KINGS COUNTY CLERK 09m2017 03:36 PM
`NYSCI
`3F DOC. NO. 119
`NYSCEF DOC. NO. 119
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`IND
`EX NO .
`503080/2013
`INDEX NO. 503080/2013
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` YSCEF:
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` MIVMD
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`09/07/2017
`RECEIVED NYSCEF: 09/07/2017
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`AFFIDAVIT OF SERVICE
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`STATE OF NEW YORK)
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`58.:
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`COUNTY OF NASSAU )
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`Sherry Moreno, being duly sworn, deposes and says:
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`I am not a party to the action, am over 18 years of age and reside in the State of New York.
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`On September 7, 2017, I served a true copy of the annexed Affirmation in Opposition to
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`Defendant’s Order to Show Causel by placing the same in a sealed envelope, with postage prepaid
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`thereon, addressed to the last known addresses of the addressees indicated below and depositing
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`same in an official depository of the United States Postal Service upon:
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`Lewis Brisbois, Bisgaard & Smith, LLP
`Attorneys for Defendant
`77 Water Street, Suite 2100
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`New York, New York 10005
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`She
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`1'10
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`Sworn to before me this
`/ day of September, 2017
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` Notary Pub 1c
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`JOANNE STRAUSS
`NOTARY PUBLIC. State of New York
`NO. 01STG19688F6
`Qualified in Sultouk County
`Commissuon Expires November 24. 2091‘-7
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