FILED: QUEENS COUNTY CLERK 09/25/2017 04:06 PM
`FILED: OUEENS COUNTY CLERK 09E2017 04:06 PM
`
`NYSCEF DOC. NO. 28
`NYSCEF DOC. NO. 28
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`INDEX NO. 709963/2016
`INDEX NO~ 709963/2016
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`RaCaIVaD VYSCEF: 09/25/2017
`RECEIVED NYSCEF: 09/25/2017
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`SUPREME COURT OF THE STATE OF NEW YORK
`
`COUNTY OF QUEENS
`ROMA RAFAEL CASTILLO and CHRISTINA GARCIA-
`
`RODRIGUEZ CASTILLO,
`
`Index No. 709963/16
`
`v.
`
`Plaintiffs,
`
`AFFIRMATION IN
`OPPOSITION
`
`66lF REALTY, LLC and BIG APPLE DESIGNERS, INC,
`
` Defendants.
`
`MEGAN K. FOSTER, an attorney duly admitted to practice law in the Courts of the State of
`
`New York, hereby affirms the truth of the following statements under penalty of perjury:
`
`1.
`
`I am an associate with the law firm of CLARK & FOX, attorneys for Defendant 661E
`
`REALTY LLC (hereafter “661F Realty”) in the above captioned action, and as such, I am fully
`
`familiar with the facts and circumstances heretofore had herein.
`
`2. This Affirmation is submitted in opposition to Plaintiffs’ motion for an Order (I)
`
`compelling defendant
`
`to produce Court—ordered discovery and appear for a Court-ordered
`
`examination before trial, and (2) for such other and further relief as the court may deem just and
`
`proper.
`
`STATEMENT OF FACTS
`
`3. This is an action for personal injuries allegedly sustained by Plaintiff, Roma Rafael
`
`Castillo, on or about June 30, 2016, inside the premises located at 661 Flushing Avenue, Brooklyn,
`
`New York.
`
`4. On or about August 19, 20l6, Plaintiffs commenced this action against 661F Realty LLC
`
`and Co—defendant BIG APPLE DESIGNERS, INC. (“BIG APPLE”). A copy of the Summons
`
`and Verified Complaint is attached hereto as Exhibit “A.”
`
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`FILED: QUEENS COUNTY CLERK 09/25/2017 04:06 PM
`FILED: OUEENS COUNTY CLERK 09E2017 04:06 PM
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`NYSCEF DOC. NO. 28
`NYSCEF DOC. NO. 28
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`INDEX NO. 709963/2016
`INDEX NO~ 709963/2016
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`RaCaIVaD VYSCEF: 09/25/2017
`RECEIVED NYSCEF: 09/25/2017
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`
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`5 .
`
`issue was joined by service of an Verified Answer to Plaintiff s Verified Complaint by Co—
`
`defendant Big Apple on or about November 18, 2016.
`
`6.
`
`Issue was joined by service of an Verified Answer to Plaintiffs Verified Complaint by
`
`661 F Realty on or about November 30, 2016. A copy of 66 1F Realty’s Verified Answer is attached
`
`hereto as Exhibit “B.”
`
`THIS COURT SHOULD DISMISS PLAINTIFFS’ MOTION TO COMPEL DEFENDANT
`
`AS 661E REALTY HAS COMPLIED WITH COURT-ORDERED DISCOVERY
`
`7. To the extent that Plaintiff" s motion is directed at 661F Realty (as the motion neglects to
`
`identify which defendant(s) allegedly failed to comply), 661F Realty requests that this Court
`
`dismiss Plaintiffs’ motion to compel defendant in its entirety as against 661F Realty.
`
`8. Defendant 661F Realty submits that it has provided the allegedly outstanding discovery. A
`
`copy of 661F Realty’s Response to Plaintiff’ 5 Demand for a Verified Bill of Particulars as to
`
`Affirmative Defenses is annexed hereto as Exhibit “C.” A copy of 661F’ss Response to Plaintiffs
`
`Combined Demands is annexed hereto as Exhibit “D.” A copy of 661F’s Responses to Plaintiffs
`
`Notice for Discovery and Inspection is annexed hereto as Exhibit “E.”
`
`9. With respect to the directives in the January 12, 2017 Preliminary Conference Order
`
`requiring “deposition of plaintiff to be held on April 12, 2017”. Please be advised that this office
`
`adjourned Plaintiff s deposition as Defendant was still awaiting receipt of Plaintiff’s complete
`
`medical records. Thereafter the parties attempted to find mutually convenient dates to reschedule
`
`Plaintiff S deposition but were unable to do so prior to the June 12, 2017 Compliance Conference
`
`in this matter.
`
`10. On July 12, 2017, the parties appeared before Hon. Joseph J. Esposito in the Compliance
`
`Settlement Conference Part. On that date, all parties entered into a Compliance Conference Order
`
`directing that all parties not yet deposed shall appear for deposition(s) on October ll, 2017.
`
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`FILED: QUEENS COUNTY CLERK 09/25/2017 04:06 PM
`FILED: OUEENS COUNTY CLERK 09E2017 04:06 PM
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`NYSCEF DOC. NO. 28
`NYSCEF DOC. NO. 28
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`INDEX NO. 709963/2016
`INDEX NO~ 709963/2016
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`RaCaIVaD uYSCEF: 09/25/2017
`RECEIVED NYSCEF: 09/25/2017
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`
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`Defendant 66113 Realty has always been Willing to forward with depositions on that date. A copy
`
`of the July 12, 2017 Compliance Conference Order is attached hereto as Exhibit “F.”
`
`THIS COURT SHOULD DISMISS PLAINTIFF’S MOTION TO COMPEL AS
`
`PLAINTIFF ’8 “GOOD FAITH AFFIRMATION” IS DEFECTIVE
`
`11.111 additional to the deficiencies discussed above, Plaintiff’s motion to compel must be
`
`denied because it is procedurally defective.
`
`12. Plaintiff‘s “Good Faith Affirmation” is defective in that it does not indicate the time, place
`
`and nature of the consultation and the issues discussed as required pursuant to 22 NYCRR
`
`202.7(c). A copy of Plaintiff’s defective Good Faith Affirmation is annexed hereto as Exhibit
`
`“G.”
`
`13. Based on the foregoing, Piaintiffs’ motion is frivolous and moot and must be dismissed.
`
`WHEREFORE, Defendant 66lF Realty, LLC, respectfuiiy requests that this Court deny
`
`Piaintiffs’ motion to compei in its entirety as against 661F Realty, LLC, and such other and further
`
`relief as this Court may deem just and proper.
`
`Dated:
`
`New York, New York
`September 25, 2017
`
`Respectfully submitted
`
`g
`
`o
`
`W]W 6?M)
`
`BY:
`
`.
`
`egan K. Foster
`
`3 of 80
`3 of 80
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`

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`FILED: QUEENS COUNTY CLERK 09/25/2017 04:06 PM
`FILED:
`OUEENS COUNTY CLERK 09E2017 04:06 PM
`NYSC 3F DOC. NO. 28
`NYSCEF DOC. NO. 28
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`IND
`EX NO.
`709963/2016
`INDEX NO. 709963/2016
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` VYSC
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` flIV flD
` 3F:
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`09/25/2017
`RECEIVED NYSCEF: 09/25/2017
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`EXHIBIT A
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`4 of 80
`4 of 80
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`FILED: QUEENS COUNTY CLERK 09/25/2017 04:06 PM
`FILED: UEENS COUNTY CLERK 09E2017 04:06 PM
`NYSCEF DOC. NO. 28
`'Y' LEBG. MEElS COUNTY CLERK 08m2016 06:00 Pt
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`NYSCEF DOC. no.
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`INDEX NO. 709963/2016
`INDEX NO. 709963/2016
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`R«.c «.IifiNDEmiEQEFEOQJQEé/Sfléflfliifil 7
`RECEIVED NYSCEF: 09/25/2017
`RECEIVED NYSCEF: 08/19/2016
`
`SUPREME COURT OF THE STATE OF NEW YORK
`
`COUNTY OF QUEENS
`------------------------------------------------------------------------------X
`ROMA RAFAEL CASTILLO and
`
`CHRISTINA GARClAeRODRIGUEZ CASTILLO,
`
`Plaintiff,
`
`-against-
`
`661E REALTY, LLC., and BIG APPLE DESIGNERS, INC,
`Defendants.
`
`..............................................................................x
`
`Index No:
`
`SUMMONS
`
`Plaintiff designates Queens
`County as the place of trial.
`
`The basis of venue is:
`
`Plaintiff’s Residence
`28-05 83rd Street
`
`Astoria, NY 11102
`
`
`
`
`
`You are hereby summoned to answer the compiaint in this action, and to serve a copy of
`your answer, or, if the complaint is not served with this summons, to serve a notice of appearance
`on the plaintiff‘s attorneys within twenty days after the service of this summons, exclusive of the
`day of service, where service is made by delivery upon you personally within the state, or, within
`30 days after completion of service where service is made in any other manner.
`In case of your
`failure to appear or answer, judgment will be taken against you by default for the relief demanded
`in the complaint.
`
`
`HWITZER 8: ASSOCIATES/EC.JJJJJ
`
`
`
`RY SEMEL—WEiNSTElN, ESQ.
`Attorneys for Plaintiffs
`820 2nd Avenue, 10th Floor
`New York, New York 10017
`(212) 683-3800
`Our File No. SMSC16—029
`
`Dated:
`
`New York, New York
`
`August 15, 2016
`
`By:
`
`TO:
`
`661F REALTY, LLC
`
`661 FLUSHING AVENUE
`
`BROOKLYN, NEW YORK, 11211
`
`BIG APPLE DESIGNERS INC
`
`694- MYRTLE AVE #438
`
`BROOKLYN, NEW YORK, 11205
`
`1 of 13
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`FILED: QUEENS COUNTY CLERK 09/25/2017 04:06 PM
`FILED: OUEENS COUNTY CLERK 09E2017 04:06 PM
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`YSCEF DOC. NO. 28
`NYSCEF DOC. NO. 28
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`INDEX NO. 709963/2016
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`__
`__
`INDEX NO~ 709963/2016
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`RaCaIVaD VYSCEF: 09/25/2017
`RECEIVED NYSCEF: 09/25/2017
`
`SUPREME COURT OF THE STATE OF NEW YORK
`
`COUNTY OF QUEENS
`
`ROMA RAFAEL CASTILLO and
`
`CHRISTINA GARCiA-RODRIGUEZ CASTILLO,
`
`Plaintiff,
`
`-against-
`
`661}? REALTY, LLC., and BIG APPLE DESIGNERS, lNC.,
`
`..............................................................................x
`
`Defendants.
`
`Index N04
`
`i
`
`Plaintiff, by his attorneys, WILLIAM SCHWITZER 8L ASSOCIATES, P.C., complaining of the
`
`Defendants, respectfully alleges, upon information and belief, as follows:
`
`1
`*
`
`AS AND FOR A FIRST CAUSE OF ACTION
`Qfl EEHALF 0F ROMA RAFAEL CASTILLQ
`
`1.
`
`At the time of the commencement of this action, Plaintiff was a resident of the
`
`County of Queens, State of New York.
`
`2.
`
`That at all
`
`times hereinafter alleged, and upon information and belief,
`
`the
`
`defendant, 661F REALTY, LLC., was a domestic corporation organized and existing under and
`
`by virtue of the laws of the State of New York.
`
`3.
`
`That at all times hereinafter alleged, and upon information and belief, the
`
`defendant, 661F REALTY, LLC., was a foreign corporation authorized to do business under
`
`and by virtue of the laws of the State of New York.
`
`4.
`
`That at all
`
`times hereinafter alleged, and upon information and belief, the
`
`defendant, 661F REALTY, LLC., maintained a principal place of business in the County of
`
`201513
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`FILED: QUEENS COUNTY CLERK 09/25/2017 04:06 PM
`FILED: OUEENS COUNTY CLERK 09E2017 04:06 PM
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`yscar DOC. NO. 28
`NYSCEF DOC. NO. 28
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`INDEX NO. 709963/2016
`INDEX NO~ ”9963/2016
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`RnCnIVnD NYSCEF: 09/25/2017
`RECEIVED NYSCEF: 09/25/2017
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`
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`Kings, City and State of New York.
`
`5.
`
`That at ali times hereinafter alleged, and upon information and belief on Bronx,
`
`the defendant, 661F REALTY, LLC., owned the premises known as 661 Flushing Avenue,
`
`County of Kings, City and State of New York.
`
`6.
`
`That at all times hereinafter alleged, and upon information and belief on
`
`June 30, 2016, the defendant, 661F REALTY, LLC., managed the premises known as 661
`
`Flushing Avenue, County of Kings, City and State of New York.
`
`7.
`
`That at ali times hereinafter alleged, and upon information and beiief on
`
`June 30, 2016, the defendant, 661F REALTY, LLC., leased the premises known as 661 Flushing
`
`Avenue, County of Kings, City and State of New York.
`
`8.
`
`That at all times hereinafter alleged, and upon information and belief on
`
`lune 30, 2016, the defendant, 661F REALTY, LLC., maintained the premises known as 661
`
`Flushing Avenue, County of Kings, City and State of New York.
`
`9.
`
`That at ail times hereinafter alleged, and upon information and belief on
`
`June 30, 2016, the defendant, 661F REALTY, LLC., operated the premises known as 661
`
`Flushing Avenue, County of Kings, City and State of New York.
`
`10.
`
`That at all times hereinafter alieged, and upon information and beiief on
`
`june 30, 2016, the defendant, 661F REALTY, LLC., supervised the premises known as 661
`
`Fiushing Avenue, County of Kings, City and State of New York.
`
`11.
`
`That at all times hereinafter alleged, and upon information and belief, prior to
`
`lune 30, 2016,
`
`the defendant, 661F REALTY, LLC., entered into an agreement and/or
`
`arrangement to provide and perform certain work, labor and/or services at the premises
`
`located at 661 Flushing Avenue, County of Kings, City and State ofNew York,
`
`30f 13
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`INDEX NO. 709963/2016
`FILED: QUEENS COUNTY CLERK 09/25/2017 04:06 PM
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`FILED: OUEENS COUNTY CLERK 09E2017 04:06 PM...__....w
`
`YSCI
`
`
`
`
`3F DOC. NO. 28
`RaCaIVaD VYSCEF: 09/25/2017
`NYSCEF DOC. NO. 28
`RECEIVED NYSCEF: 09/25/2017
`
`12.
`
`That at ail times hereinafter aileged, and upon information and belief, prior to
`
`June 30, 2016, the defendant, 661F REALTY, LLC., entered into a contract for certain work,
`
`labor and/or services to be performed at the premises located at 661 Flushing Avenue, County
`
`of Kings, City and State of New York.
`
`13.
`
`That at ali times hereinafter aiieged, and upon information and belief on June 30,
`
`2016, the defendant, 661F REALTY, LLC., was performing certain work, labor and/or services
`
`at the premises located at 661 Fiushing Avenue, County of Kings, City and State of New York.
`
`14.
`
`That at all times hereinafter alleged, and upon information and belief on
`
`June 30, 2016, the defendant 661i" REALTY, LLC., was performing certain work, labor and/or
`
`services at the aforesaid iocation and directed, supervised and controlled all of the work
`
`and/or services performed in and about the premises located at 661 Flushing Avenue, County
`
`of Kings, City and State of New York.
`
`15. That on or about june 30, 2016, defendant, 661B REALTY, LLC., was the project
`
`manager for work, labor and/or services performed at the premises located at 661 Flushing
`
`Avenue, County of Kings, City and State of New York.
`
`16.
`
`That on June 30, 2016, and upon information and belief, the defendant, 661F
`
`REALTY, LLC., was the general contractor at the premises located at 661 Flushing Avenue,
`
`County of Kings, City and State of New York.
`
`17.
`
`That at all times hereinafter alleged, and upon information and belief, prior
`
`to iune 30, 2016, the defendant, 661F REALTY, LLC., hired various entities to provide and
`
`perform certain work, labor and/or services at the premises iocated at 661 Flushing Avenue,
`
`County of Kings, City and State of New York.
`
`
`
`
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`FILED: QUEENS COUNTY CLERK 09/25/2017 04:06 PM
`FILED: OUEENS COUNTY CLERK 09E2017 04:06 PM
`
`YSCI3F DOC. NO. 28
`NYSCEF DOC. NO. 28
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`INDEX NO. 709963/2016
`INDEX NO~ 709963/2016
`
`
`
`
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`RaCaIVaD uYSCEF: 09/25/2017
`RECEIVED NYSCEF: 09/25/2017
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`
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`18.
`
`That at ali
`
`times hereinafter aileged, and upon information and belief, the
`
`defendant, BIG APPLE DESIGNERS, INC, was a domestic corporation organized and existing
`
`under and by virtue ofthe laws of the State of New York.
`
`19.
`
`That at all
`
`times hereinafter alleged, and upon information and belief, the
`
`defendant, BIG APPLE DESIGNERS, INC., was a foreign corporation authorized to do business
`
`under and by virtue of the laws of the State of New York.
`
`20.
`
`That at all
`
`times hereinafter alleged, and upon information and belief,
`
`the
`
`defendant, BIG APPLE DESIGNERS, INC, maintained a principai place of business in the
`
`County of Kings, City and State of New York.
`
`21.
`
`That at all times hereinafter alieged, and upon information and beiief on June
`
`30, 2016, the defendant, BIG APPLE DESIGNERS, ENC, owned the premises known as 661
`
`Flushing Avenue, County of Kings, City and State of New York.
`
`22.
`
`That at all times hereinafter alleged, and upon information and belief on June
`
`30, 2016, the defendant, BIG APPLE DESIGNERS, INC, managed the premises known as 661
`
`Flushing Avenue, County of Kings, City and State of New York.
`
`23.
`
`That at all times hereinafter alleged, and upon information and belief on June
`
`30, 2016, the defendant, BIG APPLE DESIGNERS, INC., leased the premises known as 661
`
`Flushing Avenue, County of Kings, City and State of New York.
`
`24.
`
`That at all times hereinafter alleged, and upon information and belief on
`
`June 30, 2016, the defendant, BIG APPLE DESIGNERS, INC, maintained the premises known
`
`as 661 Flushing Avenue, County of Kings, City and State of New York.
`
`9 of 80
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`FILED: QUEENS COUNTY CLERK 09/25/2017 04:06 PM
`FILED:
`OUEENS COUNTY CLERK 09E2017 04:06 PM
`
`3F DOC. NO. 28
`NYSCEF DOC. NO. 28
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`INDEX NO. 709963/2016
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`INDEXjO' 709963/2016
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`RaCaIVaD NYSCEF: 09/25/2017
`RECEIVED NYSCEF: 09/25/2017
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`
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`25.
`
`That at all times hereinafter alleged, and upon information and belief on June 30,
`
`2016, the defendant, BIG APPLE DESIGNERS, INC, operated the premises known as 661
`
`Flushing Avenue, County of Kings, City and State of New York.
`
`26.
`
`That at all times hereinafter alleged, and upon information and belief on
`
`June 30, 2016, the defendant, BIG APPLE DESIGNERS, INC., supervised the premises known as
`
`661 Flushing Avenue, County of Kings, City and State of New York.
`
`27.
`
`That at all times hereinafter alleged, and upon information and belief, prior
`
`to June 30, 2016, the defendant, BIG APPLE DESIGNERS, INC, entered into an agreement
`
`and/or arrangement to provide and perform certain work, labor and/or services at the
`
`premises located at 661 Flushing Avenue, County of Kings, City and State of New York.
`
`28.
`
`That at all times hereinafter alleged, and upon information and belief, prior
`
`to June 30, 2016, the defendant, BIG APPLE DESIGNERS, INC., entered into a contract for
`
`certain work, labor and/or services to be performed at the premises located at 661 Flushing
`
`Avenue, County of Kings, City and State of New York.
`
`29.
`
`That at all times hereinafter alleged, and upon information and belief on
`
`June 30, 2016, the defendant, BIG APPLE” DESIGNERS, INC., was performing certain work,
`
`labor and/or services at the premises located at 661 Flushing Avenue, County of Kings, City
`
`and State of New York.
`
`30.
`
`That at all times hereinafter alleged, and upon information and belief on
`
`june 30, 2016, the defendant BIG APPLE DESIGNERS, INC, was performing certain work,
`
`labor and/or services at the aforesaid location and directed, supervised and controlled all of
`
`the work and/or services performed in and about the premises located at 661 Flushing
`
`Avenue, County of Kings, City and State of New York.
`
`10 of 80
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`FILED: QUEENS COUNTY CLERK 09/25/2017 04:06 PM
`FILED:
`OUEENS COUNTY CLERK 09E2017 04:06 PM
`
`3F DOC. NO. 28
`NYSCEF DOC. NO. 28
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`INDEX NO. 709963/2016
`INDEX NO~ 709963/2016
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`'"“"R«CZEV«D nYSCEF: 09/25/2017
`RECEIVED NYSCEF: 09/25/2017
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`31.
`
`That on or about june 30, 2016, defendant, BIG APPLE DESIGNERS, ENC” was
`
`the project manager for work, labor and/or services performed at the premises located at 661
`
`Flushing Avenue, County of Kings, City and State of New York.
`
`32.
`
`That on june 30, 2016, and upon information and belief, the defendant,
`
`BIG APPLE DESIGNERS, INC., was the general contractor at the premises located at 661
`
`Flushing Avenue, County of Kings, City and State of New York.
`
`33.
`
`That at all times hereinafter alleged, and upon information and belief, prior
`
`to june 30, 2016, the defendant, BIG APPLE DESIGNERS,
`
`iNC., hired various entities to
`
`provide and perform certain work, labor and/or services at the premises located at 661
`
`Flushing Avenue, County of Kings, City and State of New York.
`
`34.
`
`That on or about june 30, 2016, certain work, labor, services and demolition
`
`work was being performed at the aforesaid premises located at 661 Flushing Avenue, County
`
`of Kings, City and State of New York.
`
`35.
`
`That on june 30, 2016, the plaintiff, ROMA RAFAEL CASTILLO, was lawfully on
`
`the premises located at 661 Flushing Avenue, County of Kings, City and State of New York.
`
`36. That on lune 30, 2016, the plaintiff, ROMA RAFAEL CASTILLO, was injured as a
`
`result of a height related accident/ overhead hazard / falling objects.
`
`37.
`
`That on or aboutjune 30, 2016, the plaintiff ROMA RAFAEL CASTILLO, was on the
`
`aforesaid premises, and was caused to be injured as a result of the Defendants‘ failure to properly
`
`secure overhead hazards / falling objects.
`
`38.
`
`That on or about june 30, 2016, the plaintiff ROMA RAFAEL CASTILLO, was
`
`caused to be injured as a result of Defendants' failure to provide a safe work place and adequate
`
`protection.
`
`70f 13
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`11 of 80
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`

`

`FILED: QUEENS COUNTY CLERK 09/25/2017 04:06 PM
`FILED: OUEENS COUNTY CLERK 09E2017 04:06 PM
`
`'YscsF DOC. NO. 28
`NYSCEF DOC. NO. 28
`
`
`INDEX NO. 709963/2016
`INDEX NO~ 709963/2016
`
`
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`
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`RaCaIVaD uYSCEF: 0§7§E72017
`RECEIVED NYSCEF: 09/25/2017
`
`
`
`
`
`39.
`
`The defendants herein were negligent, reckless and careless in that they violated
`
`their duties to persons on the aforesaid premises and to this plaintiff in particular,
`
`in
`
`knowingly permitting, suffering and allowing the aforesaid premises to he, become and remain
`
`in a defective, unsafe and dangerous condition, in knowingly permitting, suffering and allowing
`
`plaintiff to work in an unsafe work place; and were further negligent in failing to take suitable
`
`precautions for the safety of persons lawfully on the aforesaid premises.
`
`40.
`
`The aforesaid accident and the injuries resulting therefrom were due solely and
`
`wholly as a result of the careless and negligent manner in which the defendants owned,
`
`maintained, controlled and performed construction work on the aforesaid premises, without
`
`the plaintiff in any way contributing thereto.
`
`41.
`
`That by reason of the foregoing and the negligence of the defendants, the
`
`plaintiff, ROMA RAFAEL CASTILLO, was severely injured, bruised and wounded, suffered, still
`
`suffers and will continue to suffer for some time physical pain and bodily injuries and became
`
`sick, sore, lame and disabled and so remained for a considerable length of time.
`
`42.
`
`That by reason of the foregoing, the plaintiff, ROMA RAFAEL CASTILLO, was
`
`compelled to and did necessarily require medical aid and attention, and did necessarily pay
`
`and become liable therefore for medicines and upon information and belief, the plaintiff,
`
`ROMA RAFAEL CASTILLO, will necessarily incur similar expenses.
`
`4-3.
`
`That by reason of the foregoing, the plaintiff, ROMA RAFAEL CASTILLO, has
`
`been unable to attend to his usual occupation in the manner required.
`
`44.
`
`One or more of the exceptions of §1602 of the Civil Practice Law and Rules
`
`applies to the within action.
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`80f13
`12 of 80
`12 of 80
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`

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`FILED: QUEENS COUNTY CLERK 09/25/2017 04:06 PM
`FILED:
`OUEENS COUNTY CLERK 09E2017 04:06 PM
`NYSCI
`3F DOC. NO. 28
`NYSCEF DOC. NO. 28
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`INDEX NO. 709963/2016
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`INDEX N0. 709963/20f
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`
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`RaCaIVaD VYSCEF: 09/25/2017
`RECEIVED NYSCEF: 09/25/2017
`
`i
`
`45.
`
`That as a result of the foregoing, the plaintiff, ROMA RAFAEL CASTILLO, has
`
`been damaged in a sum which exceeds the jurisdictionai limits of all lower courts.
`
`AS AN!) FQR A SEQ!!!) [MESS 0F ACTIQE
`
`46.
`
`Plaintiff,
`
`repeats and realieges each and every allegation contained in
`
`paragraphs 1 through 45 inclusive, with the same force and effect as though more fully set
`
`forth at iength herein.
`
`47.
`
`That the defendants violated Sections 200, 240, 240(1), and 241(6) of the New
`
`York Labor. Law.
`
`48.
`
`That the defendants failed to provide Plaintiff with a safe place to work.
`
`49.
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`That the defendants violated the Industrial Code of the State of New York.
`
`50.
`
`That as a result of the foregoing, the plaintiff, ROMA RAFAEL CASTILLO, has
`
`been damaged in a sum which exceeds the jurisdictional limits of all lower courts.
`
`E TH
`
`51.
`
`Plaintiff, CHRISTINA GARCIA-RODRIGUEZ CASTILLO, repeats and realieges each
`
`and every allegation contained in paragraphs 1 through 50 inclusive, with the same force and
`
`effect as though more fuily set forth at length herein.
`
`52. That at ail of the times hereinafter mentioned, the piaintiff, CHRISTINA GARCIA-
`
`RODRIGUEZ CASTILLO, was and still is the wife of the plaintiff, ROMA RAFAEL CASTILLO, and
`
`resided with and cohabitated with the plaintiff, ROMA RAFAEL CASTILLO.
`
`90f 13
`13 of 80
`13 of 80
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`

`

`FILED: QUEENS COUNTY CLERK 09/25/2017 04:06 PM
`FILED: OUEENS COUNTY CLERK 09E2017 o4___:___06 PM
`
`YSCEF DOC. NO. 28
`NYSCEF DOC. NO. 28
`
`INDEX NO. 709963/2016
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`INDEX NO~ ”9963/2016
`
`
`
`
`
`RaCaIVaD uYSCEF: 09/25/2017
`RECEIVED NYSCEF: 09/25/2017
`
`58.
`
`That in consequence of the injuries by the plaintiff, ROMA RAFAEL CASTILLO, as
`
`aforesaid, the plaintiff, CHRISTINA GARCIA-RODRIGUEZ CASTILLO, incurred expenses for
`
`medical, hospitai, and x-ray aid and attention in an effort to cure the said, ROMA RAFAEL
`
`CASTILLO, of the said injuries, and necessarily paid diverse sums of money for medical,
`
`hospital and x-ray aid and attention, and for medicines, and this plaintiff necessarily incurred
`
`obligations and extended monies for the care of the said ROMA RAFAEL CASTILLO, and for the
`
`performance of the househoid duties usually performed by this said ROMA RAFAEL CASTILLO
`
`and the plaintiff, CHRISTINA GARCIA~RODRIGUEZ CASTILLO, was deprived of
`
`the
`
`companionship and consortium of the plaintiff, ROMA RAFAEL CASTiLLO, for some time.
`
`59.
`
`That as a result of the foregoing, the plaintiff, CHRISTINA GARCIA—RODRIGUEZ
`
`CASTILLO, has been damaged in a sum which exceeds the jurisdictional limits of aii lower
`
`courts.
`
`WHEREFORE, plaintiff‘s ROMA RAFAEL CASTILLO and CHRISTINA GARCIA-
`
`RODRIGUEZ CASTILLO, demands judgment against the Defendants for the First Cause of Action
`
`in excess of the jurisdictional amounts of the lower Courts, for the Second Cause of Action in
`
`excess of the jurisdictional amounts of the lower Courts, for the Third Cause of Action in excess
`
`of the jurisdictional amounts of the iower Courts, ail
`
`together with the costs and
`
`disbursements of this action.
`
`Dated: New York, New York
`August 15, 2016
`
`Yours, etc,
`WI
`ITZ RELAS
`
`C/
`
`Cl
`
`ES, RC.
`
`J,
`
`
`14 of 80
`
`
`
`

`

`FILED: QUEENS COUNTY CLERK 09/25/2017 04:06 PM
`FILED: OUEENS COUNTY CLERK 09E2017 04:06 PM
`
`YSCEF DOC. NO. 28
`NYSCEF DOC. NO. 28
`
`INDEX NO. 709963/2016
`INDEX NO' 709963/2016
`
`
`
`
`
`RaCaIVaD VYSCEF: 09/25/2017
`RECEIVED NYSCEF: 09/25/2017
`
`Attorneys for Plaintiff
`820 2nd Avenue, 10th Floor
`New York, New York 10017
`[212) 683-3800
`Our File No. SMSC16~029
`
`ll of 13
`15 of 80
`15 of 80
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`

`

`FILED: QUEENS COUNTY CLERK 09/25/2017 04:06 PM
`FILED: OUEENS COUNTY CLERK 09E2017 04:06 PM
`
`YSCEF DOC. NO. 28
`NYSCEF DOC. NO. 28
`
`INDEX NO. 709963/2016
`INDEX NO~ 709963/2016
`
`
`
`
`
`RaCaIVaD VYSCEF: 09/25/2017
`RECEIVED NYSCEF: 09/25/2017
`
`
`
`ATTORNEYS EERIFICA [HEN
`
`BARRY SEMEL—WEINSTEIN, ESQ, an attorney duly admitted to practice in the Courts of
`
`the State of New York, hereby affirms the following to be true under the penalty of perjury:
`
`That I am associated with the firm of WILLIAM SCHWITZER & ASSOCIATES, P.C,, the
`
`attorney for the plaintiffs in the within action and as such, I am fully familiar with the facts and
`
`circumstances surrounding this matter based upon my review of the contents of the file
`
`maintained by this office.
`
`That i have read the foregoing SUMMONE AM! COMPLAINT and know the contents
`
`thereof; that the same is true to my own knowledge except as to the matters therein stated to
`
`be alleged upon information and belief; and, as to those matters, I believe them to be true.
`That the reason this verification is made by your affirmant and not by the plaintiffs is
`
`that the plaintiffs do not reside within the county in which my office is maintained.
`
`That the grounds for your affirmant’s belief as to all matters not stated upon my own
`
`knowledge are as follows: facts, investigations, reports, records, and documents contained in
`
`plaintiffs’ file maintained by your affirmant's office.
`
`Dated: New York, New York
`
`August 15, 2016 BARRY SEMEL—WEINSTEIN, ESQ.
`
`
`
`
`
`12 of l3
`16 of 80
`16 of 80
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`

`

`FILED: QUEENS COUNTY CLERK 09/25/2017 04:06 PM
`FILED: OUEENS COUNTY CLERK 09E2017 04:06 PM
`YSCI
`3F DOC; NO. 28
`NYSCEF DOC. NO. 28
`
`INDEX NO. 709963/2016
`INDEX NO~ 709963/2016
`
`
`
`
`
`RECEIVED EYECEF: 09/25/2017
`RECEIVED NYSCEF: 09/25/2017
`
`
`
`Index No:
`
`SUPREME COURT OF THE STATE OF NEW YORK
`
`COUNTY OF QUEENS
`
`
`ROMA RAFAEL CASTILLO and
`
`CHRISTINA GARCIA-RODRIGUEZ CASTILLO,
`
`Plaintiff,
`
`-against-
`
`661F REALTY, LLC., and BIG APPLE DESIGNERS, IN (3.,
`
`Defendants.
`
`w
`
`SUMMONS AND VERIFIED COMPLAINTmm
`
`WILLIAM SCHWITZER &ASSOCIATES, P.C.
`Attorneysfor Plaintijfls)
`820 2"” AVENUE, 10TH FLOOR
`NEW YORK NY 10017
`
`212-683u3800
`
`W
`
`To:
`
`Attorney(s) for
`
`
`Service of a copy of the within
`Dated:
`
`is hereby admitted.
`.........................
`
`Attorney(s) for
`
`PLEASE TAKE NOTICE
`NOTmEOFENTRY
`
`that the within is a {certified} true cepy of an Order entered in the office of the Clerk of the
`within named Court
`
`on the __M clay of
`
`. 20m.
`
`NOTICE OF SETTLEMENT
`
`Cl
`
`Dated:
`
`That an Order of which the within is a true copy wiil be presented to the Honorabie Justice
`
`day of
`
`
`
`, one of the justices of the within named Court, on the
`__.____. 20—.
`
`
`
`13 of 13
`17 of 80
`17 of 80
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`

`

`FILED: QUEENS COUNTY CLERK 09/25/2017 04:06 PM
`FILED: OUEENS COUNTY CLERK 09E2017 04:06 PM
`
`NYSCEF DOC. NO. 28
`NYSCEF DOC. NO. 28
`
`INDEX NO. 709963/2016
`INDEX NO~ 709963/2016
`
`
`
`
`
`
`RaCaIVaD VYSCEF: 09/25/2017
`RECEIVED NYSCEF: 09/25/2017
`
`E
`
`
`
`EXHiBiT B
`
`18 of 80
`18 of 80
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`

`

`i
`
`
`
`FILED: QUEENS COUNTY CLERK 09/25/2017 04:06 PM
`FILED: OUEENS COUNTY CLERK 09E2017 04:06 PM
`NYSCEF DOC. NO. 28
`“MW'63 COUNTY CLERK llmzoie 03:22 9
`
`NYSCEF DOC. NO.
`
`
`
`
`INDEX NO. 709963/2016
`
`INDEX NO. 709963/2016
`
`
`
`
`RECEIVED NYSCEF: 09/25/2017
`3F7=0 9(a%/3%621%1 7
`
`R‘C‘Im‘EWfi-i
`
`RECEIVED NYSCEF: 11/30/2016
`
`SUPREME COURT OF THE STATE OF NEW YORK
`
`COUNTY OF QUEENS
`
`
`ROMA RAFAEL CASTILLO AND
`CHRISTINA GARCIA~RODR1GUEZ
`
`Index No. 709963/16
`
`CASTILLO,
`
`V
`
`Piaintiff,
`
`VERIFIED ANSWER
`
`661F REALTY, LLC AND BIG APPLE
`DESIGNERS, INC,
`
`Defendants.
`
`Defendant, 661F Realty, LLC, by its attorneys, CLARK & FOX, as and for its
`
`Answer to plaintiff‘s Verified Complaint alleges, upon information and belief, as follows:
`
`AS AND FOR A FIRST CAUSE OF
`
`ACTION ON BEHALF OF RMA RAFAEL CASTILLO
`
`1.
`
`Denies knowledge or information sufficient to form a beiief as to the truth
`
`of each and, every allegation set forth in paragraphs “1”, “4”, “7”, “11”, “12”, “13”, “17”,
`
`“1s”, “19”, “20”, “21”, “22”, “23”, “24”, “25”, “26”, “27”, “28”, “29”, “30”, “31”, “32”,
`
`“33”, “34”, “35” and “36” of the Verified Complaint.
`
`2.
`
`3.
`
`Admits the allegations set forth in paragraph “2” of the Verified Complaint.
`
`Denies each and every allegation set forth in paragraphs “3”, “14”, “15”,
`
`“16”, “37”, “3 8”, “39”, “40”, “41”, “42”, “43” and “45” ofthe Verified Complaint.
`
`4.
`
`Denies in the form alleged each and every allegation set forth in paragraph
`
`“5” of the Verified Complaint except admits that 661F Realty, LLC., owned the premises
`
`known as 661 Flushing Avenue, County of Kings, City and State of New York at all
`
`relevant times.
`
`lof 1e
`19 of 80
`19 of 80
`
`

`

`FILED: QUEENS COUNTY CLERK 09/25/2017 04:06 PM
`FILED:
`OUEENS COUNTY CLERK 09 E 2017 04:06 PM
`NYSC
`3F DOC. NO. 28
`NYSCEF DOC. NO. 28
`
`709963/2016
`INDEX NO. 709963/2016
`INDEX N0.
`
`
`
`
`
`R«c«rv«o VYSCEF:
`09/25/2017
`RECEIVED NYSCEF: 09/25/2017
`
`
`
`5.
`
`Denies in the form alleged each and every allegation set forth in paragraph
`
`“6”, “8”, “9” and “10” of the Verified Complaint and refers all questions of law to the
`
`Court.
`
`6.
`
`Denies each and every allegation set forth in paragraphs “44” ofthe Verified
`
`Complaint and refers all questions of law to the Court.
`
`AS AND FOR A SECOND CAUSE OF ACTION
`
`7. Repeats, reiterates and realleges each and every response from Paragraph “1”
`
`through “45”, inclusive, of the Verified Complaint in answer to paragraph “46”of the
`
`Verified Complaint, with the same force and effect as if fully set forth herein.
`
`8. Denies each and ever}r allegation set forth in paragraphs “47”, “48”, “49” and
`
`“50”ofthe Verified Complaint.
`
`AS AND FOR THE THIRD CAUSE OF ACTION
`
`9. Repeats, reiterates and realleges each and every response from Paragraph “1”
`
`through “50”, inclusive, of the Verified Complaint in answer to paragraph “51”of the
`
`Verified Complaint, with the same force and effect as if fully set forth herein.
`
`10. Denies knowledge or information sufficient to form a belief as to the truth of each
`
`and every allegation set forth in paragraph “52” of the Verified Complaint.
`
`ll. Denies each and every allegation set forth in paragraphs “53 [sic] 58” and “54 [siol
`
`59” of the Verified Complaint.
`
`AFFIRMATIVE DEFENSES
`
`AS AND FOR A FIRST AFFIRMATIVE DEFENSE
`
`That if the accident, injuries and damages occurred as alleged by plaintiff in his
`
`Complaint, said injured and/or damages were, in Whole or in part, attributable to the
`
`2 of 10
`20 of 80
`20 of 80
`
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`

`

`FILED: QUEENS COUNTY CLERK 09/25/2017 04:06 PM
`FILED:
`OUEENS COUNTY CLERK 09E2017 04:06 PM
`NYSCI
`3F DOC. NO. 28
`NYSCEF DOC. NO. 28
`
`709963/2016
`INDEX NO. 709963/2016
`
`INDEX NO.
`RnCfiIVfiD \IYSCI
`
`
`
`3F:
`09/25/2017
`RECEIVED NYSCEF: 09/25/2017
`
`culpable conduct of the plaintiff including, but not limited to, negligence, carelessness,
`
`recidessnew and/or assumption of risk.
`
`By reason of the foregoing, answering defendant(s) demands that any damages
`
`recovered or any judgment recovered by plaintiff against said defendant(s) be reduced
`
`accordingly, pursuant to the common law and CPLR § 1411, in the proportion which the
`
`culpable conduct attributable to plaintiff bears to the culpable conduct, if any, of said
`
`defendant(s).
`
`AS AND FOR A SECOND AFFIRMA’I‘IVE DEFENSE
`
`That if the injuries and/or damages aid the risks incident to the situation mentioned
`
`in the Complaint were open, obvious and apparent, and were known and assumed by the
`
`plaintiff, then planitiff’s claims are barred by virtue of his assumption ofthe risks hereof.
`
`AS AND FOR A ”II-11R!) AFFIRMATIVE DEFENSE
`
`In the event plaintiff recovers a verdict or judgment against this answering
`defendant, then said verdict or judgment must be reduced pursuant to CPLR 45456:) by
`
`those amounts which have been, or will, with reasonable certainty, rep