Preview
INDEX NO. 117469/2008
FILED: NEW YORK COUNTY CLERK 0372572010
NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 03/25/2010
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
aoe: prow n nana nnn nn nnn nnn nnn nnn naan nnn nnn nnn nnn nnn nnn nnn nn nano nen,
XHEVAHIRE SINANAJ AND SELVI SINANOVIC
AS CO-ADMINISTRATORS OF THE ESTATE Index No.: 117469/2008
OF RAMADAN KURTAJ, DECEASED, & SELVI
SINANOVIC INDIVIDUALLY
AFFIRMATION OF
Plaintiffs, SUSAN M. KARTEN IN
FURTHER OPPOSITION
-against- TO LOMMA
DEFENDANTS’ MOTION
TO LIFT BANKRUPTCY
THE CITY OF NEW YORK, NEW YORK CITY STAY
DEPARTMENT OF BUILDINGS, MICHAEL CARBONE,
PATRICIA J. LANCASTER, ROBERT LIMANDRI, CITY OF
NEW YORK SCHOOL CONSTRUCTION AUTHORITY, Motion Scheduled For
CITY OF NEW YORK SCHOOL CONSTRUCTION FUND, Submission on April 9, 2010
NEW YORK CITY EDUCATIONAL CONSTRUCTION
FUND, NEW YORK CRANE & EQUIPMENT CORP.,
J.F. LOMMA, INC., TES INC., JF LOMA TRUCKING
AND RIGGING, JF LOMA RIGGING AND SPECIALIZED
SERVICES, JAMES F. LOMMA, BRADY MARINE REPAIR
CO., TESTWELL, INC., BRANCH RADIOGRAPHIC
LABORATORIES, INC. CRANE INSPECTION SERVICES,
LTD., SORBARA CONSTRUCTION CORP., 1765 FIRST
ASSOCIATES, LLC, LEON D. DEMATTEIS CONSTRUCTION
CORPORATION, MATTONE GROUP CONSTRUCTION CO.,
LTD., MATTONE GROUP LTD., MATTONE GROUP LLC,
HOWARD I. SHAPIRO & ASSOCIATES CONSULTING
ENGINEERS, P.C., NEW YORK RIGGING CORP., TOWER
RIGGING CONSULTANTS, INC., TOWER RIGGING, INC.,
UNIQUE RIGGING CORP., LUCIUS PITKIN, INC.,
MCLAREN ENGINEERING GROUP, M.G., MCLAREN, P.C.,
& “JOHN/JANE DOES” “1" THROUGH “10",
Defendants.
mance nc cnen en nneeennennnnneeeenennnenencncnennnnnnnnnenenenancecennnnnnnnnenennnneeXK
Susan M. Karten, an attorney duly admitted to practice in the Courts of this State affirms
the following to be true under penalty of perjury:
1 Iam a member of the law firm of SUSAN M. KARTEN & ASSOCIATES, LLP.,
counsel for the plaintiffs herein, and, as such, I am fully familiar with all of the pleadings and
proceedings set forth herein.
2 This affirmation is submitted in opposition to the motion submitted by defendants
New York Crane & Equipment Corp., J.F. Lomma, Inc., JF Loma Trucking and Rigging, JF
Loma Rigging and Specialized Services, and James F. Lomma (Collectively called the “Lomma
defendants). Said motion seeks an order from this Court:
a). Lifting the automatic bankruptcy stay as to the Lomma defendants’ cross-
claims against defendant Testwell, Inc., entered herein by this Court on
September 23, 2009 and
b). Granting such other, further and different relief as to this Court deem just and
proper.
3 Preliminarily, we note that in view of the fact that the underlying so-ordered
stipulation signed in Bankruptcy Court on March 3, 2010 is fundamentally flawed and this
application is untimely, this Court should deny such relief in its entirety.
Bankruptcy Sti lation of Marc! 2010
4 As this Court is aware, the “Lomma defendants” have never, as of this date, filed
an Answer in this case, let alone cross claims against Testwell, Inc.. Instead, the “Lomma
defendants” have chosen to file a motion to dismiss the plaintiffs complaint, which is presently
subjudice before this Court.
5 Therefore, it is incomprehensible how, having never filed cross claims against
Testwell, Inc., such a so ordered stipulation was submitted and unopposed in the Bankruptcy
Court. Certainly, counsel for Testwell, Inc., Mr. Jeffrey Bard, was aware that in the present
action, the “Lomma defendants” have no cross claims. Yet, both bankruptcy counsel for
Testwell, Inc., and insurance counsel in this case for Testwell, Inc., raised no issue with regard to
this so-ordered stipulation. Now silent on this motion, the Lomma defendants seek to submit a
fundamentally flawed stipulation to this Court.
6. The Bankruptcy Court stipulation effectively lifts the automatic stay with respect
to the Lomma defendants’ cross claims against Testwell, and permits them to prosecute their
ross-claims against Testwell at this time (See stipulation as Exhibit “A” to defendant’s motion
papers). There are no cross claims at this time, so how can they be permitted to prosecute same?
Untimely Filing
7 Unless the Lomma Defendants decide to withdraw their pre-answer motion
and file their answer and cross claims, this motion is fundamentally flawed.
8 Morever, the bankruptcy stipulation and motion to this Court is untimely and in
contravention of this Court’s order of January 14, 2010. (See Exhibit C attached to Defendant’s
motion papers). Despite the fact that the Lomma defendants were well aware of the filing of this
Court’s stay in September 2009, were present at the arguments before the Court when plaintiffs’
counsel moved to lift their stay in October 2009, and have received the prior applications brought
by co defendants to lift the stay as to their cross claims, the “Lomma defendants” still waited
until March 3, 2010, to have their purported stipulation signed by the Bankruptcy Judge and then
submitted said stipulation to this Court on the present motion on March 9, 2010.
9. This Court’s order of January 14, 2010, which was entered by this office on
January 20, 2010, (See annexed Notice of Entry as Exhibit “A”) makes abundantly clear that the
Lomma defendants are time barred in their efforts to lift any purported stay. More than thirty
days have elapsed since the entry of plaintiff's order, making this application untimely.
10, Wherefore, in view of the fundamentally flawed stipulation lifting the stay of
cross claims that do not exist, and the specific order of this Court dated January 14, 2010, and the
time requirements therein, as well as the numerous admonitions made by the Court in October
2009, regarding necessity to move to lift the bankruptcy stay and finally the untimely filing of
said flawed stipulation and motion, we believe the requested relief should be denied in all
respects.
Dated: New York , New York
March 25, 2010
Yours,
SUSAN M. TEN, Esq.
SUSAN M. KARTEN & ASSOCIATES, LLP
Attorney for Plaintiff
355 Lexington Avenue, Suite 1400
New York, New York, 10017
(212) 826-3800
TO:
All counsels via e-file
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
Xx
XHEVAHIRE SINANAJ AND SELVI SINANOVIC AS CO-
ADMINISTRATORS OF THE ESTATE OF RAMADAN
KURTAJ, DECEASED, & SELVI SINANOVIC,
INDIVIDUALLY
Plaintiffs
Index No.: 117469/08
-Vs- AFFIDAVIT OF SERVICE
BY E-FILING
THE CITY OF NEW YORK, NEW YORK CITY
DEPARTMENT OF BUILDINGS, MICHAEL
CARBONE, PATRICIA J. LANCASTER, ROBERT
LIMANDRI, CITY OF NEW YORK SCHOOL
CONSTRUCTION AUTHORITY, CITY OF NEW YORK
SCHOOL CONSTRUCTION FUND, NEW YORK
CITY EDUCATIONAL CONSTRUCTION FUND, NEW
YORK CRANE & EQUIPMENT CORP., J.F. LOMMA
INC., TES INC., JF LOMA TRUCKING AND RIGGING,
JF LOMA RIGGING AND SPECIALIZED SERVICES,
JAMES F. LOMMA, BRADY MARINE REPAIR CO.,
TESTWELL INC., BRANCH RADIOGRAPHIC
LABORATORIES, INC., CRANE INSPECTION SERVICES,
LTD, SORBARA CONSTRUCTION CORP., 1765 FIRST
ASSOCIATES, LLC. LEON D. DEMATTEIS CONSTRUCTION
CORPORATION, MATTONE GROUP CONSTRUCTION CO.
LTD, MATTONE GROUP LTD, MATTONE GROUP, LLC,
HOWARD I. SHAPIRO & ASSOCIATES CONSULTING
ENGINEERS, P.C., NEW YORK RIGGING CORP., TOWER
RIGGING CONSULTANTS, INC., TOWER RIGGING, INC.,,
UNIQUE RIGGING CORP., LUCIUS PITKIN, INC., MCLAREN
ENGINEERING GROUP, M.G., MCLAREN P.C., & “JOHN/JANE
DOES” “1 THROUGH “10",
Defendants,
Cynthia Schelmety, being duly sworn deposes and says:
1am not a party to the action, am over 18 years of age and reside in Kings County, New York.
On March 25, 2010, I caused to be served by e-filing the within AFFIRMATION OF SUSAN
M. KARTEN IN FURTHER OPPOSITION TO LOMMA DEFENDANTS’ MOTION TO LIFT
BANKRUPTCY STAY, to each of the parties and attorneys set forth after the name below.
Glenn J. Fuerth, Esq.
Attorneys for Defendant New York Crane & Equipment Corp.
Wilson, Elser, Moskowitz, Edelman & Dicker, LLP
150 East 42nd Street
New York, New York 10017
(212) 490-3000
(212) 490-3038
John Fabiani, Esq.
Steve Cohen, Esq.
Michael P. Tobin, Esq.
Andrew Wiener, Esq.
Attorneys for Defendant The City of New York and The New York City Department of Buildings,
Patricia Lancaster and Robert LiMandri
Fabini, Cohem & Hall, LLP
570 Lexington Avenue
New York, New York 10022
(212) 644-4420
(212) 207-8182
Mark D. Levi, Esq.
Attorneys for Defendant Leon D. DeMatties Construction Corporation
Smith Mazure Director Wilkins Young & Yagerman, P.C.
111 John Street, 20th Floor
New York, New York 10038
(212) 964-7400
(212) 374-1935
Barbara A. Sheehan, Esq.
Scott D. Clausen, Esq.
Attorneys for Defendant 1765 First Associates, LLC
Nicoletti Hornig & Sweeney
Wall Street Plaza
88 Pine Street, 7" Floor
New York, New York 10005
(212) 220-3830
(212) 220-3780
Raymond F. Slattery, Esq.
Attorneys for Defendant Sorbara Construction Corp.
Cartafalsa, Slattery, Turpin & Lenoff
One Liberty Plaza
165 Broadway, 28th Floor
New York, New York 10006
(212) 225-7700
(212) 225-7745
Chad Sjoquist, Esq.
Attorneys for Defendant New York Rigging Corp
Gallo, Vitucci, Klar, Pinter & Cogan LLP
90 Broad Street, 3rd Floor
New York, NY 10004
(212) 683-7100
(212) 683-5555
Jason Katz, Esq.
Attorneys for Defendant Branch Radiographic Laboratories, Inc.
Lewis Johs Avallone, Avila, LLP
425 Broad Hollow Road, Suite 400
Melville, New York 11747
(631) 755-0101
(631) 755-0117
Jack Babchik, Esq.
Marisa Devito, Esq.
Attorneys for Defendant Lucius Pitkin, Inc.
Babchik & Young, LLP
2000 East Post Road
White Plains, Road, New York 10601
(914) 470-0001
Charles J. Gaynor, Esq.
Attorneys for Defendants McLaren Engineering Group & M.G. McLaren, P.C.
Maloof, Lebowitz, Connahan & Oleske, p.C.
299 Broadway, suite 1610
New York, New York 10007
(212) 233-9604
(212) 233-3984
Edward Fogarty, Jr. Esq.
Attorneys for Defendant Metro Sewer
Litchfield Cavo, LLP
420 Lexington Avenue, Suite 2104
New York, New York 1017
(212) 434-0100
(212) 434-0105
Roy W. Breitenbach, Esq.
Salvatore Puccio, Esq.
Attorneys for Defendants Mattone Group Contruction Co., Ltd., Mattone Group Ltd., and
Mattone Group, LLC
Garfunkel, Wilk & Travis, P.C.
111 Great Neck Road
Great Neck, New York 11021
(516) 393-2200
(516) 466-5964
Richard W. Ashnault, Esq.
Attorneys for Defendant New York City School Construction Authority i/s/h/a/ City of New York
School Construction Authority
Cerussi & Spring, P.C.
One North Lexington Avenue
White Plains, New york 10601
(914) 948-1200
(914) 948-1579
Jeffery Bard, Esq.
John R. Frank, Esq.
Attorneys for Defendant Testwell, Inc.
Lawrence, Worden Rainis & Bard, P.C.
425 Broad Hollow Road, Suite 105E
Melville, NY 11747
(631) 694-0033
(631) 694-9331
Sacks and Sacks, LLP
Attorneys for Christopher S. Doran, Guiseppe Calabro, Daniel Oddo, and Robert Graves
150 Broadway, 4" Floor
New York, NY 10038
(212) 964-5570
Kevin J. O'Neill, LLP
Attorneys for Defendant Howard I. Shapiro & Associates Consulting Engineers, P.C.
Gogick, Byrne, & O’Neill, LLP
11 Broadway, Suite 1560
New York, NY 10004
(212) 422-9424
(212) 422-9429
Steve Steigerwald, Esq. and Robert Fumo, Esq.
Attorneys for Defendant Brady Marine Repair Co., Inc.
Law Office of James J. Toomey
485 Lexington Avenue, 7" Floor
New York, NY 10017-2360
(631) 501-3109
(917) 778-6659
(917) 778-7020(f)
David Smith Esq.
Attorneys for Plaintiffs Greater New York Mutual Insurance Company a/s/o First & 91% LLC
Gwertzman, Lefkowitz, Burman, Smith & Marcus
80 Broad Street
New York, NY 10004
(212) 968-1001
(212) 344-4140
Elizabeth Eilender, Esq.
Co-Attorneys for Plaintiff First & 91° LLC
Jaroslawicz & Jaros
225 Broadway, 24" Floor
New York, NY 10007-2601
(212) 227-2780
Allison M. Furman, Esq.
Co-Attorneys for Plaintiff First & 91" LLC
Goldberg, Weprin & Ustin, LLP
1501 Broadway, 22™ Floor
New York, New York 10036
(212) 221-5700
Robert G. Leino, Esq.
Attorneys for Plaintiffs Robert G. Leino, Louise M. Leino and Bridget E. Leino
354 East 91* Street, Apt 1101
New York, New York 10128
(646) 286-5476
Michael T. Blumenfeld, Esq,
Attorneys for Defendant Total Safety Consulting, LLC
Conway, Farrell, Curtin & Kelly, P.C.
48 Wall Street, 20" Floor
New York, New York 1000
(212) 993-9311
(212) 785-7229
Eliza D, Stahl, Esq.
Attorneys for Defendants Tower Rigging Consultants, Inc. And Tower Rigging, Inc.
The Law Office of Eliza D. Stahl
21 Dixon Avenue
Copiague, New York 11726
(631) 841-3088
(631) 841-3089
Jeffrey S. Shein, Esq.
Attorneys for Defendant New York City Educational Construction Fund s/h/a City of New York
School Construction Fund
The Law Offices of Jeffery S. Shein & Associates, P.C.
575 Underhill Boulevard, Suite [12
Syosset, New York 11791
(516) 922-6626
(516) 922-2797
Christian H. Gannon, Esq.
Attorneys for Defendant New York City Educational Construction Fund
Segal McCambridge Singer & Mahoney
830 Third Avenue
New York, New York 10022
(212) 651-7500
(212) 651-7499
Edward P. Kelly, Esq.
Michael G. O’Neill, Esq.
Theresa Wade, Esq.
Co-Attorneys for Plaintiffs Xhevahire Sinanaj and Selvi Sinanovic as Co-administrators
of the Estate of Ramadan Kurtaj, Deceased
Law Office of Michael O’Neill
30 Vesey Street, 3" Floor
(212) 581-0990
Bernadette Panzella, P.C.
Attorney for Plaintiff Donald Raymond Leo, Administrator of the Estate of his son, Donald
Christopher Leo, Deceased May 30, 2008
655 Avenue of the Americas, Suite 2E
New York, New York 10017
(212) 995-5353
Sworn to before methis
25" da March 7 OO
Cynthia Schelmety
A“ i]
Nota ib
ny
yA
SUPREME COURT STATE OF NEW YORK
COUNTY OF NEW YORK
- tee ennennnnn nnn ennnnnnee ene nennceeenneeeeennnecene =X,
XHEVAHIRE SINANAJ AND SELVI SINANOVIC AS CO-
ADMINISTRATORS OF THE ESTATE OF RAMADAN Index No.: 117469/08
KURTAJ, DECEASED, & SELVI SINANOVIC,
INDIVIDUALLY
Plaintiffs NOTICE OF ENTRY
vs.
THE CITY OF NEW YORK, NEW YORK CITY
DEPARTMENT OF BUILDINGS, MICHAEL
CARBONE, PATRICIA J. LANCASTER, ROBERT
LIMANDRI, CITY OF NEW YORK SCHOOL
CONSTRUCTION AUTHORITY, CITY OF NEW YORK
SCHOOL CONSTRUCTION FUND, NEW YORK
CITY EDUCATIONAL CONSTRUCTION FUND, NEW
YORK CRANE & EQUIPMENT CORP., J.F. LOMMA
INC., TES INC., JF LOMA TRUCKING AND RIGGING,
JF LOMA RIGGING AND SPECIALIZED SERVICES,
JAMES F. LOMMA, BRADY MARINE REPAIR CO.,
TESTWELL INC., BRANCH RADIOGRAPHIC
LABORATORIES, INC., CRANE INSPECTION SERVICES,
LTD, SORBARA CONSTRUCTION CORP., 1765 FIRST
ASSOCIATES, LLC. LEON D. DEMATTEIS CONSTRUCTION
CORPORATION, MATTONE GROUP CONSTRUCTION CO.
LTD, MATTONE GROUP LTD, MATTONE GROUP, LLC,
HOWARD I. SHAPIRO & ASSOCIATES CONSULTING
ENGINEERS, P.C., NEW YORK RIGGING CORP., TOWER
RIGGING CONSULTANTS, INC., TOWER RIGGING. INC.,
UNIQUE RIGGING CORP., LUCIUS PITKIN, INC., MCLAREN
ENGINEERING GROUP, M.G., MCLAREN P.C., & “JOHN/JANE
DOES” “1 THROUGH “10”,
Defendants
oot nn nn nee enn e cc eenennne nee e ene eneeennnceeene,
SIR
PLEASE TAKE NOTICE, that the within is a true copy of an Order of the Honorab
le Paul G
Feinman, Supreme Court of the State of New York, County of New York, dated January 14, 2010. and
entered in the Office of the Clerk of the within named Court on January 19, 2010.
Dated: New York. New York
January20. 2010 +f
CRAIG H. SNYDER
SUSAN M. KARTEN & ASSOCIATES, LLP
Attorneys for Plaintiff
355 Lexington Avenue, Suite 1-100
New York. New York 10017
(212) 826-3800
TO:
Edward P. Kelly, Esq.
Michael G. ONeill, Esq.
Theresa Wade, Esq.
Law Office of Michael O'Neill
30 Vesey Street, 3% Floor
(212) 581-0990
darrow@oneillaw.cor
kellylaw@optonline.net
Lwade@oneillaw.com
Co-Attorneys for Plaintiffs Xhevahire Sinanaj and Selvi Sinanovie as Co-administrators
of the Estate of Ramadan Kurtaj, Deceased
Bernadette Panzella, p.C.
Studio Legale
655 Avenue of the Americas, Suite 2E
New York, New York 10017
(212) 995-5353
bppc1001@yahoo.con
Attorney for Plaintiff Donald Raymond Leo, Administrator of the Estate of his son, Donald Christopher
Leo, Deceased May 30, 2008
Glenn J. Fuerth, Esq.
Wilson, Elser, Moskowitz, Edelman & Dicker, LLP
150 East 42nd Street
New York. New York 10017
(212) 490-3000
@ 12) 490-3038
G erth@wilsonelser.com
Attor for Defendant New York Crane & Equipment Corp.
John Fabiani, Esq.
Steve Cohen, Esq.
Michael P. Tobin, Esq.
Andrew Wiener, Esq.
Fabini, Cohem & Hall, LLP
570 Lexington Avenue
New York, New York 10022
(212) 644- 20
(212) 207-8182
fabianij@fellp.com
tobinm@fellp.cor
cohens@fellp.cor
Weinera@fellp.cor
Attor s for Defendant The City of New York and The New York City Department of Buildings.
Patricia Lancaster and Robert L.iMandri
Mark D. Levi, Esq.
Smith Mazure Director Wilkins Young & Yagerman, P.C.
111 John Street, 20th Floor
New York, New York 10038
(212) 964-7400
(212) 374-1935
mlevi@smithmazure.con
Attorneys for Defendant Leon D. DeMatties Construction Corporation
Barbara A. Sheehan, Esq.
Scott D. Clausen, Esq.
Nicoletti Hornig & Sweeney
Wall Street Plaza
88 Pine Street, 7" Floor
New York, New York 10005
(212) 220-3830
(212) 220-3780
sclausen@nicolettihornig.con
bsheehan@nicolettihorniz.com
Attorneys for Defedant 1765 First Associates, LLC
Raymond F. Slattery, Esq.
Cartafalsa, Slattery, Turpin & Lenoff
One Liberty Plaza
165 Broadway, 28th Floor
New York, New York 10006
(212) 225-7700
(212) 225-7745
fa tymond. slattery@zurichi om
Attorneys for Defendant Sorbara Construction Corp.
Chad Sjoquist, Esq.
Gallo. Vitucci, Klar, Pinter & Cogan LLP
90 Broad Street. 3rd Floor
New York. NY 10004
(212) 683-7100
(212) 683-5555
Attomeys for Defendant New York Rigging Corp
Carl M. Perri, Esq.
Clausen Miller, P.C.
One Chase Manhattan Plaza, 39" Floor
New York. New York 1005
(212) 805-3900
(212) 805-3939
eperri@ a 1.COU
Attorneys for Defendant Branch Radiographic Laboratories. Inc.
Jeffery Bard, Esq.
John R. Frank, Esq.
Lawrence, Worden Rainis & Bard, P.C.
425 Broad Hollow Road, Suite 10SE
Melville, NY 11747
(631) 694-0033
(631) 694-9331
jbard@I|wrlawyer.con
jfrank@Iwrlawyer.com
Attomeys for Defendant Testwell, Inc.
Sacks and Sacks, LLP.
150 Broadway, 4" Floor
New York, NY 10038
(212) 964-5570
devon@sacks-sa s.com
Attorneys for Christopher S. Doran, Guiseppe Calabro, Daniel Oddo. and Robert Graves
Kevin J. O'Neill, LLP
Gogick, Byrne, & O’Neill, LLP
11 Broadway, Suite 1560
New York, NY 10004
(212) 422-9424
(212) 422-9429
k 0} m
Attorneys for Defendant Howard I. Shapiro & Associates Consulting Engineers, P.C.
Steve Steigerwald, Esq. and Robert Fumo, Esq.
Law Office of James J. Toomey
485 Lexington Avenue. 7° Floor
New York. NY 10017-2360
(631) 501-3109
(917) 778-6659
(917) 778-7020(1)
ssteiger@travelers.con
rfumo@travelers.com
Attorneys for Defendant Brady Marine Repair Co., Inc
David Smith Esq.
Gwertzman, Lefkowitz, Burman, Smith & Marcus
80 Broad Street
New York, NY 10004
(212) 968-1001
(212) 344-4140
smith@gwertzmanlaw.com
Attormeys for PlaintiGreater New York Mutual Insurance Company a/s/o First & 91 LLC
Elizabeth Eilender. Lisq.
Jaroslawies & Jaros
225 Broadway, 24" Floor
New York, NY 10007-2601
12) 227-2780
gecil der @lawjaros.com
Co-Attorneys for Plaintiff First & 91" LLC
Allison M. Furman, Esq.
Goldberg, Weprin & Ustin, LLP
1501 Broadway, 22™ Floor
New York, New York 10036
(212) 221-5700
afurman@gwulaw.con
Co-Attorneys for Plaintiff First & 91 LLC
Robert G. Leino, Esq.
354 East 91* Street, Apt 1101
New York, New York 10128
(646) 286-5476
rgleino@leinolaw.cor
Attorneys for Plaintiffs Robert G. Leino, Louise M. Leino and Bridget E. Leino
Michael T. Blumenfeld. Esq,
Conway, Farrell, Curtin & Kelly, P.C.
48 Wall Street, 20" Floor
New York, New York 1000
(212) 993-9311
(212) 785-7229
mblumenfeld@conwayfarrell.com
Attorneys for Defendant Total Safety Consulting, LLC
Eliza D, Stahl, Esq.
The Law Office of Eliza D. Stahl
21 Dixon Avenue
Copiague, New York 11726
(631) 841-3088
(631) 841-3089
elizaesg.@verizon.net
Attorneys for Defendants Tower Rigging Consultants. Inc. And Tower Rigging. Inc.
Jeffrey S. . Esq.
The L Offices of Jeffery S. Shein & Associates. P.C.
575 Underhill Boulevard, Suite [12
Syosset, New York 11791
(516) 922-6626
(516) 9: 2797
shein@ in; andassociates.cor
Attorneys for Defendant New York City Educational Construction Fund s/h/a City of New York School
Construction Fund
Christian H. Gannon
Segal McCambridge Singer & Mahoney
830 Third Avenue
New York, New York 10022
(212) 651-7500
(212) 651-7499
cgannonsmst com
Attorneys for Defendant New York City Educational Construction Fund
*NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 01/19/20
SUPREME COURT OF THE STATE OF NEW YORK — NEW YORK COUNT
Y
PRESENT: HON. PAUL GEORGE FEINMAN PART _12 i
Justice
atad-
SIWA vay, X- INDEX NO. L469 for a
MOTION DATE ————_
Ve
MOTION SEQ. NO. —oe6 1
QAiTY GF WCW GR, er a,
MOTION CAL. NO.
The following papers, numbered 1 to were read on this motion to/for
| Papers numBeReo
Notice of Motion/Petition — Affidavits — Exhibits
Answering Affidavits — Exhibits (Memo),
Notice of Cross-Motion — Affidavits — Exhibits
Replying Affidavits (Reply Memo),
Cross-Motion: (] Yes [J] No
Upon the foregoing papers, it is ORDERED that this motion
te hone
14 AL GR BAR
Witeshivesasiae isin ORD
Dated: iy | Jo YY, _ v& JSC.
aw Check one:!" FINAL DISPOSITION 53% NON-FINAL DISPOSITION
og _| DO NOT POST i | REFERENCE
: | Preliminary Conf. : i Compliance Conf.
=5
SUPREME COURT OF THE STATE OF NEW YORK.
COUNTY OF NEW YORK: CIVIL TERM: PART 12
cere ene ne cece enn een nen neem enn n en nn nen een en en enn nner neeneenees,
XHEVAHIRE SINANAJ and SELVI SINANOVIC
AS CO-ADMINISTRATORS OF THE ESTATE OF
RAMADAN KURTAJ, DECEASED, & SELVI
SINANOVIC, INDIVIDUALLY,
Plaintiffs, Index Number 17469/2008
-against- Mot. Seq. No. 006
THE CITY OF NEW YORK, NEW YORK CITY, DECISION AND ORDER
DEPARTMENT OF BUILDINGS, MICHAEL
CARBONE, PATRICIA J. LANCASTER, ROBERT
LIMANDRI, CITY OF NEW YORK SCHOOL
CONSTRUCTION FUND, NEW YORK CITY
EDUCATIONAL CONSTRUCTION FUND, NEW
YORK CRANE & EQUIPMENT CORP., JAMES F.
LOMMA, LOMMA TRUCKING & RIGGING, J.F.
LOMMA INC., TES INC., JF LOMMA
TRUCKING & RIGGING, JF LOMMA RIGGING
AND SPECIALIZED SERVICES, JAMES F. LOMMA,
BRADY MARINE REPAIR CO., TESTWELL, INC.,
BRANCH RADIOGRAPHIC LABORATORIES, INC.,
CRANE INSPECTION SERVICES, LTD., SORBARA
CONSTRUCTION CORP., 1765 FIRST ASSOCIATES,
LLC, LEON D. DEMATTEIS CONSTRUCTION
CORPORATION, MATTONE GROUP CONSTRUCTION
CO. LTD., MATTONE GROUP LTD., MATTONE
GROUP LLC, HOWARD 1. SHAPIRO & ASSOCIATES
CONSULTING ENGINEERS, P.C., NEW YORK
RIGGING CORP. TOWER RIGGING CONSULTANTS,
INC., TOWER RIGGING, INC., UNIQUE RIGGING
CORP., LUCIUS PITKIN, INC., MCLAREN
ENGINEERING GROUP, M.G., MCLAREN, P.C., &
“JOHN/JANE DOES” “1” though “10,”
Defendants.
eset eee c ete cece ones cere scene seen nee neen en eneeeenecenenene
For the Plaintiffs. For Defendant Leon D. Demattcis Construction Corp.:
Michael G, O'Neill, Esq Smuth, Mazure, Director, Wilkins, Young & Yagerman, PC.
30 Vesey Street, 3 Floor By: Mark D. Levi, Esq
New York, New York 10007 111 John Street, 20 Floor
(212) $81-0990 New York, NY 10038
(212) 964-7400
Page | of 7
For Plaintiff Kurtaj: For Defendant Sorbara Construction Corp..
Susan M. Karten & Associates, LLP Cartafalsa, Slattery, Turpin & Lenoff
By: Susan M. Karten, Esq. By Raymond F. Slattery, Esq
355 Lexington Avenue 165 Broadway, 28 Floor
New York, NY 10017 New York, NY 10066
(212)826-3800 (212) 225-7700
For Defendant Testwell, tne.:
Lawrence, Worden, Rainis & Bard, PC.
By: Jeflrey Bard, Esq
225 Broad Hollow Road, Suite 105E.
Melville, NY 11747-4701
(631) 694-0033
Papers considered in review of this motion to restore:
Papers E-Filing Document Number
Order to Show Cause 108
Affirmation in Support and Annexed Exhibits 107
Affirmation in Partial Opposition 109
Affirmation with Regard to Order to Show Cause Ito
Affirmation in Opposition V2
Reply Affirmation in Further Support and Annexed Exhibits 113
—_ - aa
PAUL G. FEINMAN, J.:
Plaintiffs move, by order to show cause, to, among other things, vacate the stays issued
by this court, entered September 23, 2009 and September 25, 2009, and restore this matter, along
with certain motions which were sub judice al that time, to active status. Plaintiffs also seek an
expedited discovery schedule. Defendant Dematteis Construction Corp. partially opposes.
Defendant Testwell, Inc., the party whose voluntary bankruptcy resulted in the stay, opposes the
unless ceratin recovery limitations are placed on co-defendants. Defendant Sorbara Construction
Corp. opposes. For the reasons set forth below, the motion is granted in part and denied in part.
Defendant Testwell filed a voluntary petition for Chapter 11 Bankruptcy on May 13,
2009. By Orders entered September 23, 2009 and September 25, 2009, this court stayed this
matter, pursuant to 11 USC § 362 (a) (1), and marked off motions bearing sequence numbers
QOL, 002, 004, and 005 as stayed (Aff. in Supp., Ex. B). On October 13, 2009, the United States
Bankruptcy Court “so ordered” a stipulation between plamuffs and Testwell, which lifted the
Pave 2 of 7
stay as to plaintiffs and provided that “{rJecovery. . . shall be limited to the amount of coverage
provided by (Testwell’s] insurance policy and [p]laintiffs shall have no other claim in the
bankruptcy estate and forever waive the right to file a proof claim for any amount in excess of
the insurance coverage” (Aff. in Supp., Ex. C $4). Paragraph one of the so ordered stipulation
defines “[pJlaintiffs” as “The Estate of Ramadan Kurtaj, et. al.” (Aff. in Supp., Ex. C $1).
Consequently, on October 23, 2009, plaintiffs moved, by order to show cause to (1) vacate the
slays issued by this court, entered on September 23, 2009 and September 25, 2009 and restore
this matter to active status, (2) restore motions bearing sequence numbers 001 and 002 to the
calendar, (3) have the court direct that discovery be expedited, and (4) for a case management
order.
Here, plaintiffs have sufficiently demonstrated that they timely moved this court for
restoration within less than two weeks after the bankruptcy stay was lifted, which was
approximately two months after the matter was marked off the active calendar (Order to Show
Cause; Aff. in Supp., Exs. B, C). Plaintiffs also presented evidence that each of the defendants
vere put on notice of plaintiff's application to the bankruptcy court to lift the stay and that none
of the defendants sought to join in that application (Order to Show Cause; Aff. in Supp., Ex. C).
Plaintiffs could be prejudiced if this motion were denied because of defendants’ “lack of
diligence in seeking and or joining in plaintiff[s’] bankruptcy (cjourt applications for which they
were fully on notice” (Reply Aff. ] 11). Accordingly, those branches of plaintiffs’ motion
seeking to restore this matter and motions bearing sequence numbers 001, 002, 004 and 005 to
active status is granted.
Plaintiffs also ask that this court sever the defendants’ cross-claims to facilitate discovery
and prevent prejudice (Reply Aff. in Further Supp. 46). This court may sever claims “{i]n
Page 3 of 7
furtherance of convenience or to avoid prejudice” (CPLR 604; see CPLR 1010). Thus, this court
will sever all cross-claims against Testwell unless the cross-claimant has successfully lifted the
bankruptcy stay as it pertains to its cross-claims against Testwell and serves a copy of such an
order upon this court and all parties within 30 days of entry of this order. The court notes that the
parties were pul on notice of the court's intention to so proceed at oral argument on October 30,
2009, so thal by the time this 30 days elapse they will have had over three months to accomplish
what plaintiff managed to accomplish relatively quickly after the stay came to the court’s
attention.
Further, given this conditional severance, the complexity of this matter, and because
motions bearing sequence numbers 001,002, 004 and 005 are hereby restored to the calendar,
this court cannot find, at this time, that issuing an expedited discovery schedule is either called
for by the parties’ conduct, nor that it would “facilitate the resolution of [this] case{]”
(Brustowsky v Herbst, 4 AD3d 220, 221 [1st Dept 2004]; see 22 NYCRR 202.19 [b] [2] [i]), nor
that it would serve the interest of justice (see CPLR 3403 [a] [3]; Afarer ofN Y. County Diet
Drug Litig., 262 AD2d 132, 132 [Ist Dept 1999], Iv dismissed and denied 94 NY2d 895 [2000}).
The differentiated case management system currently employed by the Office of Court
Administration envisions three tracks of cases: expedited; standard and complex. Currently, this
action is deemed standard. While an argument could be made that the instant action should be
deemed complex, due to the large number of ancillary litigations, a determination to conduct
“expedited” discovery is not warranted. Such a determination is not a function of public or
media interest, nor frankly, simply because plaintiffs desire such an approach. Rather, it is a
function of analysis of balancing the prejudice to the parties and the potential effect on the
resolution of the case’s merits if the court takes the case off the standard (rack.
Page 4 of 7
Every plaintiff desires to have his or her case expedited. With literally over 700 cases in
its inventory, over a thousand motions made a year, it is simply impossible for the court to
accommodate every plaintiff's desire to have his or her case decided yesterday. Indeed, much of
the wheel-spinning in this action is due simply to a lack of cooperation among counsel and what
seems to the court to be inordinate effort to “short-circuit” the ordinary discovery process by
both sides of the lawsuit. As the court urged the parties at the oral argument of this motion, the
instant motion should have been resolved by stipulation. Litigants go in and out of bankruptcy
on a regular basis; litigants die and need to have representatives appointed. Cases are stayed and
stays lifted, all by the simple “so ordering” of a stipulation. The original order staying this action
specifically advised that counsel could restore it by stipulation. Of course, when counsel do not
cooperate, then motions are generated, causing unnecessary delay and expense to the litigants.
The litigants and their counsel chart their own course.
Defendants also seek various forms of relief. Defendant Dematteis “has no opposition to
vacating the stay" but asks this court to also “lift the stay in all 20 [related] cases pending before
this” court without formally cross-moving
for such relief (Aff. ‘in Partial Opp., (6). Defendant
Testwell “seek{s] clarification” because the so ordered stipulation seems to only limit Testwell’s 1
liability as to plaintiffs’ claims and not as to the cross-claims commenced by co-defendants (Aff.
with Regard to Order to Show Cause, at 3). Thus, Testwell “ha[s] no objection to the relief
sought” so long as “all claims, cross claims and counterclaims for contribution and
:
indemnification are limited to the available insurance proceeds of insurance maintained” (Aff
with Regard to Order to Show Cause, at 3). In essence, Testwell seeks a declaration of rights
which necessarily turns on a substantive analysis of the so-ordered stipulation. Defendant
Sorbara opposes the motion because “Sorbara has ci ass claim[{s] against Testwell for
Page 5 of 7
indemnification and contribution” and because Sorbara was not a party to the stipulation, and
they argue that the stay should be lifted “‘only if, plaintiffs] and all parties unconditionally agree
that Sorbara will not be required to pay any party any part of Testwell’s liability” (Aff. In Opp,
95, 9). Despite their requests for these various forms of relief, none of the defendants has
formally cross-moved.
Ifa party opposing a motion also affirmatively demands relief, that party must formally
cross-move to demand such relief (see CPLR 2215; see generally 197 Siegel's Practice Review,
Mere Mention of Request for Relief in Papers Opposing Main Motion Does No Satisfy “Cross-
Motion”, Cross Relief Denied, at 4 [May 2008]). Here, none of the defendants have filed cross-
motions for the various forms of relief sought and in “the absence of a notice of cross motion,”
this court is “without jurisdiction to grant the relief afforded to defendants” (Myung Chun v
North Am. Mtge. Co., 285 AD2d 42, 45 [1st Dept 2001]; see Siegel, NY Prac § 249, at 423 [4th
ed] (“when the opposing party wants both to oppose the main motion as well as obtain
affirmative relief of [his or] her own, [that opposing party) is to include a notice of
cross-motion”]). Therefore, this court declines to address those improper requests (see
Guggenheim v Guggenheim, 109 AD2d 1012, 1012 [3d Dept 1985} [“Itis not as a rule sufficient
to demand such relief in opposing affidavits or memoranda”’], quoting Siegel, Practice
Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C2215:1).
Accordingly, it is
ORDERED that plaintiffs’ motion to vacate the stay of this matter and restore it to active
status is granted to the extent that plaintiff's claims against the defendants are restored to active
status together; and it is further
Page 6 of 7
MaSSS
SSS SSS SSS
ORDERED that plaintiffs are awarded $100 costs pursuant to CPLR 8106 and CPLR
8202; and it is further
ORDERED that any cross-claims by any defendant against any other defendant other
than Testwell are restored to active status; and it is further
ORDERED that the Clerk of Trial Support and Clerk of Motion Support are directed to
restore motions bearing motion sequence numbers 001 , 002 and 004 to the Motion Submissions
Calendar, 60 Centre Street, Room 130 for February 1, 2010 at 9:30 a.m.; and it is further
ORDERED that the Clerk of Trial Support and Clerk of Motion Support are directed to
testore motion bearing sequence number 005 to active status and it is decided in accordance with
the separate decision and order of today’s date; and it is further
ORDERED that plaintiffs’ motion seeking to sever defendant Sorbara’s cross-claims
against defendant Testwell is granted, as are any other cross-claims against Testwell, unless
Sorbara ,or any other cross-claimant against Testwell, successfully lifts the bankruptcy stay as to
its cross-claims against Testwell and serves a copy of such an order upon this court and all
parties within 30 days of entry of this order, in which event the motion for severance shall be
deemed denied and it is further
ORDERED that plaintiffs’ motion is denied in all other respects except to the extent sct
forth in a separately issued Case Management Order; and it is further
ORDERED that plaintiffs shall serve a copy of this order on all parties and third-parties,
if any, and upon the Clerks of Trial Support and Motion Support.
This constitutes the decision and order of the curt.
Dated: January 14,2010
New York, New York
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INDEX NO. 117469/2008 FILED: NEW YORK COUNTY CLERK 0372572010 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 03/25/2010 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK aoe: prow n nana nnn nn nnn nnn nnn nnn naan nnn nnn nnn nnn nnn nnn nnn nn nano nen, XHEVAHIRE SINANAJ AND SELVI SINANOVIC AS CO-ADMINISTRATORS OF THE ESTATE Index No.: 117469/2008 OF RAMADAN KURTAJ, DECEASED, & SELVI SINANOVIC INDIVIDUALLY AFFIRMATION OF Plaintiffs, SUSAN M. KARTEN IN FURTHER OPPOSITION -against- TO LOMMA DEFENDANTS’ MOTION TO LIFT BANKRUPTCY THE CITY OF NEW YORK, NEW YORK CITY STAY DEPARTMENT OF BUILDINGS, MICHAEL CARBONE, PATRICIA J. LANCASTER, ROBERT LIMANDRI, CITY OF NEW YORK SCHOOL CONSTRUCTION AUTHORITY, Motion Scheduled For CITY OF NEW YORK SCHOOL CONSTRUCTION FUND, Submission on April 9, 2010 NEW YORK CITY EDUCATIONAL CONSTRUCTION FUND, NEW YORK CRANE & EQUIPMENT CORP., J.F. LOMMA, INC., TES INC., JF LOMA TRUCKING AND RIGGING, JF LOMA RIGGING AND SPECIALIZED SERVICES, JAMES F. LOMMA, BRADY MARINE REPAIR CO., TESTWELL, INC., BRANCH RADIOGRAPHIC LABORATORIES, INC. CRANE INSPECTION SERVICES, LTD., SORBARA CONSTRUCTION CORP., 1765 FIRST ASSOCIATES, LLC, LEON D. DEMATTEIS CONSTRUCTION CORPORATION, MATTONE GROUP CONSTRUCTION CO., LTD., MATTONE GROUP LTD., MATTONE GROUP LLC, HOWARD I. SHAPIRO & ASSOCIATES CONSULTING ENGINEERS, P.C., NEW YORK RIGGING CORP., TOWER RIGGING CONSULTANTS, INC., TOWER RIGGING, INC., UNIQUE RIGGING CORP., LUCIUS PITKIN, INC., MCLAREN ENGINEERING GROUP, M.G., MCLAREN, P.C., & “JOHN/JANE DOES” “1" THROUGH “10", Defendants. mance nc cnen en nneeennennnnneeeenennnenencncnennnnnnnnnenenenancecennnnnnnnnenennnneeXK Susan M. Karten, an attorney duly admitted to practice in the Courts of this State affirms the following to be true under penalty of perjury: 1 Iam a member of the law firm of SUSAN M. KARTEN & ASSOCIATES, LLP., counsel for the plaintiffs herein, and, as such, I am fully familiar with all of the pleadings and proceedings set forth herein. 2 This affirmation is submitted in opposition to the motion submitted by defendants New York Crane & Equipment Corp., J.F. Lomma, Inc., JF Loma Trucking and Rigging, JF Loma Rigging and Specialized Services, and James F. Lomma (Collectively called the “Lomma defendants). Said motion seeks an order from this Court: a). Lifting the automatic bankruptcy stay as to the Lomma defendants’ cross- claims against defendant Testwell, Inc., entered herein by this Court on September 23, 2009 and b). Granting such other, further and different relief as to this Court deem just and proper. 3 Preliminarily, we note that in view of the fact that the underlying so-ordered stipulation signed in Bankruptcy Court on March 3, 2010 is fundamentally flawed and this application is untimely, this Court should deny such relief in its entirety. Bankruptcy Sti lation of Marc! 2010 4 As this Court is aware, the “Lomma defendants” have never, as of this date, filed an Answer in this case, let alone cross claims against Testwell, Inc.. Instead, the “Lomma defendants” have chosen to file a motion to dismiss the plaintiffs complaint, which is presently subjudice before this Court. 5 Therefore, it is incomprehensible how, having never filed cross claims against Testwell, Inc., such a so ordered stipulation was submitted and unopposed in the Bankruptcy Court. Certainly, counsel for Testwell, Inc., Mr. Jeffrey Bard, was aware that in the present action, the “Lomma defendants” have no cross claims. Yet, both bankruptcy counsel for Testwell, Inc., and insurance counsel in this case for Testwell, Inc., raised no issue with regard to this so-ordered stipulation. Now silent on this motion, the Lomma defendants seek to submit a fundamentally flawed stipulation to this Court. 6. The Bankruptcy Court stipulation effectively lifts the automatic stay with respect to the Lomma defendants’ cross claims against Testwell, and permits them to prosecute their ross-claims against Testwell at this time (See stipulation as Exhibit “A” to defendant’s motion papers). There are no cross claims at this time, so how can they be permitted to prosecute same? Untimely Filing 7 Unless the Lomma Defendants decide to withdraw their pre-answer motion and file their answer and cross claims, this motion is fundamentally flawed. 8 Morever, the bankruptcy stipulation and motion to this Court is untimely and in contravention of this Court’s order of January 14, 2010. (See Exhibit C attached to Defendant’s motion papers). Despite the fact that the Lomma defendants were well aware of the filing of this Court’s stay in September 2009, were present at the arguments before the Court when plaintiffs’ counsel moved to lift their stay in October 2009, and have received the prior applications brought by co defendants to lift the stay as to their cross claims, the “Lomma defendants” still waited until March 3, 2010, to have their purported stipulation signed by the Bankruptcy Judge and then submitted said stipulation to this Court on the present motion on March 9, 2010. 9. This Court’s order of January 14, 2010, which was entered by this office on January 20, 2010, (See annexed Notice of Entry as Exhibit “A”) makes abundantly clear that the Lomma defendants are time barred in their efforts to lift any purported stay. More than thirty days have elapsed since the entry of plaintiff's order, making this application untimely. 10, Wherefore, in view of the fundamentally flawed stipulation lifting the stay of cross claims that do not exist, and the specific order of this Court dated January 14, 2010, and the time requirements therein, as well as the numerous admonitions made by the Court in October 2009, regarding necessity to move to lift the bankruptcy stay and finally the untimely filing of said flawed stipulation and motion, we believe the requested relief should be denied in all respects. Dated: New York , New York March 25, 2010 Yours, SUSAN M. TEN, Esq. SUSAN M. KARTEN & ASSOCIATES, LLP Attorney for Plaintiff 355 Lexington Avenue, Suite 1400 New York, New York, 10017 (212) 826-3800 TO: All counsels via e-file SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Xx XHEVAHIRE SINANAJ AND SELVI SINANOVIC AS CO- ADMINISTRATORS OF THE ESTATE OF RAMADAN KURTAJ, DECEASED, & SELVI SINANOVIC, INDIVIDUALLY Plaintiffs Index No.: 117469/08 -Vs- AFFIDAVIT OF SERVICE BY E-FILING THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF BUILDINGS, MICHAEL CARBONE, PATRICIA J. LANCASTER, ROBERT LIMANDRI, CITY OF NEW YORK SCHOOL CONSTRUCTION AUTHORITY, CITY OF NEW YORK SCHOOL CONSTRUCTION FUND, NEW YORK CITY EDUCATIONAL CONSTRUCTION FUND, NEW YORK CRANE & EQUIPMENT CORP., J.F. LOMMA INC., TES INC., JF LOMA TRUCKING AND RIGGING, JF LOMA RIGGING AND SPECIALIZED SERVICES, JAMES F. LOMMA, BRADY MARINE REPAIR CO., TESTWELL INC., BRANCH RADIOGRAPHIC LABORATORIES, INC., CRANE INSPECTION SERVICES, LTD, SORBARA CONSTRUCTION CORP., 1765 FIRST ASSOCIATES, LLC. LEON D. DEMATTEIS CONSTRUCTION CORPORATION, MATTONE GROUP CONSTRUCTION CO. LTD, MATTONE GROUP LTD, MATTONE GROUP, LLC, HOWARD I. SHAPIRO & ASSOCIATES CONSULTING ENGINEERS, P.C., NEW YORK RIGGING CORP., TOWER RIGGING CONSULTANTS, INC., TOWER RIGGING, INC.,, UNIQUE RIGGING CORP., LUCIUS PITKIN, INC., MCLAREN ENGINEERING GROUP, M.G., MCLAREN P.C., & “JOHN/JANE DOES” “1 THROUGH “10", Defendants, Cynthia Schelmety, being duly sworn deposes and says: 1am not a party to the action, am over 18 years of age and reside in Kings County, New York. On March 25, 2010, I caused to be served by e-filing the within AFFIRMATION OF SUSAN M. KARTEN IN FURTHER OPPOSITION TO LOMMA DEFENDANTS’ MOTION TO LIFT BANKRUPTCY STAY, to each of the parties and attorneys set forth after the name below. Glenn J. Fuerth, Esq. Attorneys for Defendant New York Crane & Equipment Corp. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP 150 East 42nd Street New York, New York 10017 (212) 490-3000 (212) 490-3038 John Fabiani, Esq. Steve Cohen, Esq. Michael P. Tobin, Esq. Andrew Wiener, Esq. Attorneys for Defendant The City of New York and The New York City Department of Buildings, Patricia Lancaster and Robert LiMandri Fabini, Cohem & Hall, LLP 570 Lexington Avenue New York, New York 10022 (212) 644-4420 (212) 207-8182 Mark D. Levi, Esq. Attorneys for Defendant Leon D. DeMatties Construction Corporation Smith Mazure Director Wilkins Young & Yagerman, P.C. 111 John Street, 20th Floor New York, New York 10038 (212) 964-7400 (212) 374-1935 Barbara A. Sheehan, Esq. Scott D. Clausen, Esq. Attorneys for Defendant 1765 First Associates, LLC Nicoletti Hornig & Sweeney Wall Street Plaza 88 Pine Street, 7" Floor New York, New York 10005 (212) 220-3830 (212) 220-3780 Raymond F. Slattery, Esq. Attorneys for Defendant Sorbara Construction Corp. Cartafalsa, Slattery, Turpin & Lenoff One Liberty Plaza 165 Broadway, 28th Floor New York, New York 10006 (212) 225-7700 (212) 225-7745 Chad Sjoquist, Esq. Attorneys for Defendant New York Rigging Corp Gallo, Vitucci, Klar, Pinter & Cogan LLP 90 Broad Street, 3rd Floor New York, NY 10004 (212) 683-7100 (212) 683-5555 Jason Katz, Esq. Attorneys for Defendant Branch Radiographic Laboratories, Inc. Lewis Johs Avallone, Avila, LLP 425 Broad Hollow Road, Suite 400 Melville, New York 11747 (631) 755-0101 (631) 755-0117 Jack Babchik, Esq. Marisa Devito, Esq. Attorneys for Defendant Lucius Pitkin, Inc. Babchik & Young, LLP 2000 East Post Road White Plains, Road, New York 10601 (914) 470-0001 Charles J. Gaynor, Esq. Attorneys for Defendants McLaren Engineering Group & M.G. McLaren, P.C. Maloof, Lebowitz, Connahan & Oleske, p.C. 299 Broadway, suite 1610 New York, New York 10007 (212) 233-9604 (212) 233-3984 Edward Fogarty, Jr. Esq. Attorneys for Defendant Metro Sewer Litchfield Cavo, LLP 420 Lexington Avenue, Suite 2104 New York, New York 1017 (212) 434-0100 (212) 434-0105 Roy W. Breitenbach, Esq. Salvatore Puccio, Esq. Attorneys for Defendants Mattone Group Contruction Co., Ltd., Mattone Group Ltd., and Mattone Group, LLC Garfunkel, Wilk & Travis, P.C. 111 Great Neck Road Great Neck, New York 11021 (516) 393-2200 (516) 466-5964 Richard W. Ashnault, Esq. Attorneys for Defendant New York City School Construction Authority i/s/h/a/ City of New York School Construction Authority Cerussi & Spring, P.C. One North Lexington Avenue White Plains, New york 10601 (914) 948-1200 (914) 948-1579 Jeffery Bard, Esq. John R. Frank, Esq. Attorneys for Defendant Testwell, Inc. Lawrence, Worden Rainis & Bard, P.C. 425 Broad Hollow Road, Suite 105E Melville, NY 11747 (631) 694-0033 (631) 694-9331 Sacks and Sacks, LLP Attorneys for Christopher S. Doran, Guiseppe Calabro, Daniel Oddo, and Robert Graves 150 Broadway, 4" Floor New York, NY 10038 (212) 964-5570 Kevin J. O'Neill, LLP Attorneys for Defendant Howard I. Shapiro & Associates Consulting Engineers, P.C. Gogick, Byrne, & O’Neill, LLP 11 Broadway, Suite 1560 New York, NY 10004 (212) 422-9424 (212) 422-9429 Steve Steigerwald, Esq. and Robert Fumo, Esq. Attorneys for Defendant Brady Marine Repair Co., Inc. Law Office of James J. Toomey 485 Lexington Avenue, 7" Floor New York, NY 10017-2360 (631) 501-3109 (917) 778-6659 (917) 778-7020(f) David Smith Esq. Attorneys for Plaintiffs Greater New York Mutual Insurance Company a/s/o First & 91% LLC Gwertzman, Lefkowitz, Burman, Smith & Marcus 80 Broad Street New York, NY 10004 (212) 968-1001 (212) 344-4140 Elizabeth Eilender, Esq. Co-Attorneys for Plaintiff First & 91° LLC Jaroslawicz & Jaros 225 Broadway, 24" Floor New York, NY 10007-2601 (212) 227-2780 Allison M. Furman, Esq. Co-Attorneys for Plaintiff First & 91" LLC Goldberg, Weprin & Ustin, LLP 1501 Broadway, 22™ Floor New York, New York 10036 (212) 221-5700 Robert G. Leino, Esq. Attorneys for Plaintiffs Robert G. Leino, Louise M. Leino and Bridget E. Leino 354 East 91* Street, Apt 1101 New York, New York 10128 (646) 286-5476 Michael T. Blumenfeld, Esq, Attorneys for Defendant Total Safety Consulting, LLC Conway, Farrell, Curtin & Kelly, P.C. 48 Wall Street, 20" Floor New York, New York 1000 (212) 993-9311 (212) 785-7229 Eliza D, Stahl, Esq. Attorneys for Defendants Tower Rigging Consultants, Inc. And Tower Rigging, Inc. The Law Office of Eliza D. Stahl 21 Dixon Avenue Copiague, New York 11726 (631) 841-3088 (631) 841-3089 Jeffrey S. Shein, Esq. Attorneys for Defendant New York City Educational Construction Fund s/h/a City of New York School Construction Fund The Law Offices of Jeffery S. Shein & Associates, P.C. 575 Underhill Boulevard, Suite [12 Syosset, New York 11791 (516) 922-6626 (516) 922-2797 Christian H. Gannon, Esq. Attorneys for Defendant New York City Educational Construction Fund Segal McCambridge Singer & Mahoney 830 Third Avenue New York, New York 10022 (212) 651-7500 (212) 651-7499 Edward P. Kelly, Esq. Michael G. O’Neill, Esq. Theresa Wade, Esq. Co-Attorneys for Plaintiffs Xhevahire Sinanaj and Selvi Sinanovic as Co-administrators of the Estate of Ramadan Kurtaj, Deceased Law Office of Michael O’Neill 30 Vesey Street, 3" Floor (212) 581-0990 Bernadette Panzella, P.C. Attorney for Plaintiff Donald Raymond Leo, Administrator of the Estate of his son, Donald Christopher Leo, Deceased May 30, 2008 655 Avenue of the Americas, Suite 2E New York, New York 10017 (212) 995-5353 Sworn to before methis 25" da March 7 OO Cynthia Schelmety A“ i] Nota ib ny yA SUPREME COURT STATE OF NEW YORK COUNTY OF NEW YORK - tee ennennnnn nnn ennnnnnee ene nennceeenneeeeennnecene =X, XHEVAHIRE SINANAJ AND SELVI SINANOVIC AS CO- ADMINISTRATORS OF THE ESTATE OF RAMADAN Index No.: 117469/08 KURTAJ, DECEASED, & SELVI SINANOVIC, INDIVIDUALLY Plaintiffs NOTICE OF ENTRY vs. THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF BUILDINGS, MICHAEL CARBONE, PATRICIA J. LANCASTER, ROBERT LIMANDRI, CITY OF NEW YORK SCHOOL CONSTRUCTION AUTHORITY, CITY OF NEW YORK SCHOOL CONSTRUCTION FUND, NEW YORK CITY EDUCATIONAL CONSTRUCTION FUND, NEW YORK CRANE & EQUIPMENT CORP., J.F. LOMMA INC., TES INC., JF LOMA TRUCKING AND RIGGING, JF LOMA RIGGING AND SPECIALIZED SERVICES, JAMES F. LOMMA, BRADY MARINE REPAIR CO., TESTWELL INC., BRANCH RADIOGRAPHIC LABORATORIES, INC., CRANE INSPECTION SERVICES, LTD, SORBARA CONSTRUCTION CORP., 1765 FIRST ASSOCIATES, LLC. LEON D. DEMATTEIS CONSTRUCTION CORPORATION, MATTONE GROUP CONSTRUCTION CO. LTD, MATTONE GROUP LTD, MATTONE GROUP, LLC, HOWARD I. SHAPIRO & ASSOCIATES CONSULTING ENGINEERS, P.C., NEW YORK RIGGING CORP., TOWER RIGGING CONSULTANTS, INC., TOWER RIGGING. INC., UNIQUE RIGGING CORP., LUCIUS PITKIN, INC., MCLAREN ENGINEERING GROUP, M.G., MCLAREN P.C., & “JOHN/JANE DOES” “1 THROUGH “10”, Defendants oot nn nn nee enn e cc eenennne nee e ene eneeennnceeene, SIR PLEASE TAKE NOTICE, that the within is a true copy of an Order of the Honorab le Paul G Feinman, Supreme Court of the State of New York, County of New York, dated January 14, 2010. and entered in the Office of the Clerk of the within named Court on January 19, 2010. Dated: New York. New York January20. 2010 +f CRAIG H. SNYDER SUSAN M. KARTEN & ASSOCIATES, LLP Attorneys for Plaintiff 355 Lexington Avenue, Suite 1-100 New York. New York 10017 (212) 826-3800 TO: Edward P. Kelly, Esq. Michael G. ONeill, Esq. Theresa Wade, Esq. Law Office of Michael O'Neill 30 Vesey Street, 3% Floor (212) 581-0990 darrow@oneillaw.cor kellylaw@optonline.net Lwade@oneillaw.com Co-Attorneys for Plaintiffs Xhevahire Sinanaj and Selvi Sinanovie as Co-administrators of the Estate of Ramadan Kurtaj, Deceased Bernadette Panzella, p.C. Studio Legale 655 Avenue of the Americas, Suite 2E New York, New York 10017 (212) 995-5353 bppc1001@yahoo.con Attorney for Plaintiff Donald Raymond Leo, Administrator of the Estate of his son, Donald Christopher Leo, Deceased May 30, 2008 Glenn J. Fuerth, Esq. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP 150 East 42nd Street New York. New York 10017 (212) 490-3000 @ 12) 490-3038 G erth@wilsonelser.com Attor for Defendant New York Crane & Equipment Corp. John Fabiani, Esq. Steve Cohen, Esq. Michael P. Tobin, Esq. Andrew Wiener, Esq. Fabini, Cohem & Hall, LLP 570 Lexington Avenue New York, New York 10022 (212) 644- 20 (212) 207-8182 fabianij@fellp.com tobinm@fellp.cor cohens@fellp.cor Weinera@fellp.cor Attor s for Defendant The City of New York and The New York City Department of Buildings. Patricia Lancaster and Robert L.iMandri Mark D. Levi, Esq. Smith Mazure Director Wilkins Young & Yagerman, P.C. 111 John Street, 20th Floor New York, New York 10038 (212) 964-7400 (212) 374-1935 mlevi@smithmazure.con Attorneys for Defendant Leon D. DeMatties Construction Corporation Barbara A. Sheehan, Esq. Scott D. Clausen, Esq. Nicoletti Hornig & Sweeney Wall Street Plaza 88 Pine Street, 7" Floor New York, New York 10005 (212) 220-3830 (212) 220-3780 sclausen@nicolettihornig.con bsheehan@nicolettihorniz.com Attorneys for Defedant 1765 First Associates, LLC Raymond F. Slattery, Esq. Cartafalsa, Slattery, Turpin & Lenoff One Liberty Plaza 165 Broadway, 28th Floor New York, New York 10006 (212) 225-7700 (212) 225-7745 fa tymond. slattery@zurichi om Attorneys for Defendant Sorbara Construction Corp. Chad Sjoquist, Esq. Gallo. Vitucci, Klar, Pinter & Cogan LLP 90 Broad Street. 3rd Floor New York. NY 10004 (212) 683-7100 (212) 683-5555 Attomeys for Defendant New York Rigging Corp Carl M. Perri, Esq. Clausen Miller, P.C. One Chase Manhattan Plaza, 39" Floor New York. New York 1005 (212) 805-3900 (212) 805-3939 eperri@ a 1.COU Attorneys for Defendant Branch Radiographic Laboratories. Inc. Jeffery Bard, Esq. John R. Frank, Esq. Lawrence, Worden Rainis & Bard, P.C. 425 Broad Hollow Road, Suite 10SE Melville, NY 11747 (631) 694-0033 (631) 694-9331 jbard@I|wrlawyer.con jfrank@Iwrlawyer.com Attomeys for Defendant Testwell, Inc. Sacks and Sacks, LLP. 150 Broadway, 4" Floor New York, NY 10038 (212) 964-5570 devon@sacks-sa s.com Attorneys for Christopher S. Doran, Guiseppe Calabro, Daniel Oddo. and Robert Graves Kevin J. O'Neill, LLP Gogick, Byrne, & O’Neill, LLP 11 Broadway, Suite 1560 New York, NY 10004 (212) 422-9424 (212) 422-9429 k 0} m Attorneys for Defendant Howard I. Shapiro & Associates Consulting Engineers, P.C. Steve Steigerwald, Esq. and Robert Fumo, Esq. Law Office of James J. Toomey 485 Lexington Avenue. 7° Floor New York. NY 10017-2360 (631) 501-3109 (917) 778-6659 (917) 778-7020(1) ssteiger@travelers.con rfumo@travelers.com Attorneys for Defendant Brady Marine Repair Co., Inc David Smith Esq. Gwertzman, Lefkowitz, Burman, Smith & Marcus 80 Broad Street New York, NY 10004 (212) 968-1001 (212) 344-4140 smith@gwertzmanlaw.com Attormeys for PlaintiGreater New York Mutual Insurance Company a/s/o First & 91 LLC Elizabeth Eilender. Lisq. Jaroslawies & Jaros 225 Broadway, 24" Floor New York, NY 10007-2601 12) 227-2780 gecil der @lawjaros.com Co-Attorneys for Plaintiff First & 91" LLC Allison M. Furman, Esq. Goldberg, Weprin & Ustin, LLP 1501 Broadway, 22™ Floor New York, New York 10036 (212) 221-5700 afurman@gwulaw.con Co-Attorneys for Plaintiff First & 91 LLC Robert G. Leino, Esq. 354 East 91* Street, Apt 1101 New York, New York 10128 (646) 286-5476 rgleino@leinolaw.cor Attorneys for Plaintiffs Robert G. Leino, Louise M. Leino and Bridget E. Leino Michael T. Blumenfeld. Esq, Conway, Farrell, Curtin & Kelly, P.C. 48 Wall Street, 20" Floor New York, New York 1000 (212) 993-9311 (212) 785-7229 mblumenfeld@conwayfarrell.com Attorneys for Defendant Total Safety Consulting, LLC Eliza D, Stahl, Esq. The Law Office of Eliza D. Stahl 21 Dixon Avenue Copiague, New York 11726 (631) 841-3088 (631) 841-3089 elizaesg.@verizon.net Attorneys for Defendants Tower Rigging Consultants. Inc. And Tower Rigging. Inc. Jeffrey S. . Esq. The L Offices of Jeffery S. Shein & Associates. P.C. 575 Underhill Boulevard, Suite [12 Syosset, New York 11791 (516) 922-6626 (516) 9: 2797 shein@ in; andassociates.cor Attorneys for Defendant New York City Educational Construction Fund s/h/a City of New York School Construction Fund Christian H. Gannon Segal McCambridge Singer & Mahoney 830 Third Avenue New York, New York 10022 (212) 651-7500 (212) 651-7499 cgannonsmst com Attorneys for Defendant New York City Educational Construction Fund *NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 01/19/20 SUPREME COURT OF THE STATE OF NEW YORK — NEW YORK COUNT Y PRESENT: HON. PAUL GEORGE FEINMAN PART _12 i Justice atad- SIWA vay, X- INDEX NO. L469 for a MOTION DATE ————_ Ve MOTION SEQ. NO. —oe6 1 QAiTY GF WCW GR, er a, MOTION CAL. NO. The following papers, numbered 1 to were read on this motion to/for | Papers numBeReo Notice of Motion/Petition — Affidavits — Exhibits Answering Affidavits — Exhibits (Memo), Notice of Cross-Motion — Affidavits — Exhibits Replying Affidavits (Reply Memo), Cross-Motion: (] Yes [J] No Upon the foregoing papers, it is ORDERED that this motion te hone 14 AL GR BAR Witeshivesasiae isin ORD Dated: iy | Jo YY, _ v& JSC. aw Check one:!" FINAL DISPOSITION 53% NON-FINAL DISPOSITION og _| DO NOT POST i | REFERENCE : | Preliminary Conf. : i Compliance Conf. =5 SUPREME COURT OF THE STATE OF NEW YORK. COUNTY OF NEW YORK: CIVIL TERM: PART 12 cere ene ne cece enn een nen neem enn n en nn nen een en en enn nner neeneenees, XHEVAHIRE SINANAJ and SELVI SINANOVIC AS CO-ADMINISTRATORS OF THE ESTATE OF RAMADAN KURTAJ, DECEASED, & SELVI SINANOVIC, INDIVIDUALLY, Plaintiffs, Index Number 17469/2008 -against- Mot. Seq. No. 006 THE CITY OF NEW YORK, NEW YORK CITY, DECISION AND ORDER DEPARTMENT OF BUILDINGS, MICHAEL CARBONE, PATRICIA J. LANCASTER, ROBERT LIMANDRI, CITY OF NEW YORK SCHOOL CONSTRUCTION FUND, NEW YORK CITY EDUCATIONAL CONSTRUCTION FUND, NEW YORK CRANE & EQUIPMENT CORP., JAMES F. LOMMA, LOMMA TRUCKING & RIGGING, J.F. LOMMA INC., TES INC., JF LOMMA TRUCKING & RIGGING, JF LOMMA RIGGING AND SPECIALIZED SERVICES, JAMES F. LOMMA, BRADY MARINE REPAIR CO., TESTWELL, INC., BRANCH RADIOGRAPHIC LABORATORIES, INC., CRANE INSPECTION SERVICES, LTD., SORBARA CONSTRUCTION CORP., 1765 FIRST ASSOCIATES, LLC, LEON D. DEMATTEIS CONSTRUCTION CORPORATION, MATTONE GROUP CONSTRUCTION CO. LTD., MATTONE GROUP LTD., MATTONE GROUP LLC, HOWARD 1. SHAPIRO & ASSOCIATES CONSULTING ENGINEERS, P.C., NEW YORK RIGGING CORP. TOWER RIGGING CONSULTANTS, INC., TOWER RIGGING, INC., UNIQUE RIGGING CORP., LUCIUS PITKIN, INC., MCLAREN ENGINEERING GROUP, M.G., MCLAREN, P.C., & “JOHN/JANE DOES” “1” though “10,” Defendants. eset eee c ete cece ones cere scene seen nee neen en eneeeenecenenene For the Plaintiffs. For Defendant Leon D. Demattcis Construction Corp.: Michael G, O'Neill, Esq Smuth, Mazure, Director, Wilkins, Young & Yagerman, PC. 30 Vesey Street, 3 Floor By: Mark D. Levi, Esq New York, New York 10007 111 John Street, 20 Floor (212) $81-0990 New York, NY 10038 (212) 964-7400 Page | of 7 For Plaintiff Kurtaj: For Defendant Sorbara Construction Corp.. Susan M. Karten & Associates, LLP Cartafalsa, Slattery, Turpin & Lenoff By: Susan M. Karten, Esq. By Raymond F. Slattery, Esq 355 Lexington Avenue 165 Broadway, 28 Floor New York, NY 10017 New York, NY 10066 (212)826-3800 (212) 225-7700 For Defendant Testwell, tne.: Lawrence, Worden, Rainis & Bard, PC. By: Jeflrey Bard, Esq 225 Broad Hollow Road, Suite 105E. Melville, NY 11747-4701 (631) 694-0033 Papers considered in review of this motion to restore: Papers E-Filing Document Number Order to Show Cause 108 Affirmation in Support and Annexed Exhibits 107 Affirmation in Partial Opposition 109 Affirmation with Regard to Order to Show Cause Ito Affirmation in Opposition V2 Reply Affirmation in Further Support and Annexed Exhibits 113 —_ - aa PAUL G. FEINMAN, J.: Plaintiffs move, by order to show cause, to, among other things, vacate the stays issued by this court, entered September 23, 2009 and September 25, 2009, and restore this matter, along with certain motions which were sub judice al that time, to active status. Plaintiffs also seek an expedited discovery schedule. Defendant Dematteis Construction Corp. partially opposes. Defendant Testwell, Inc., the party whose voluntary bankruptcy resulted in the stay, opposes the unless ceratin recovery limitations are placed on co-defendants. Defendant Sorbara Construction Corp. opposes. For the reasons set forth below, the motion is granted in part and denied in part. Defendant Testwell filed a voluntary petition for Chapter 11 Bankruptcy on May 13, 2009. By Orders entered September 23, 2009 and September 25, 2009, this court stayed this matter, pursuant to 11 USC § 362 (a) (1), and marked off motions bearing sequence numbers QOL, 002, 004, and 005 as stayed (Aff. in Supp., Ex. B). On October 13, 2009, the United States Bankruptcy Court “so ordered” a stipulation between plamuffs and Testwell, which lifted the Pave 2 of 7 stay as to plaintiffs and provided that “{rJecovery. . . shall be limited to the amount of coverage provided by (Testwell’s] insurance policy and [p]laintiffs shall have no other claim in the bankruptcy estate and forever waive the right to file a proof claim for any amount in excess of the insurance coverage” (Aff. in Supp., Ex. C $4). Paragraph one of the so ordered stipulation defines “[pJlaintiffs” as “The Estate of Ramadan Kurtaj, et. al.” (Aff. in Supp., Ex. C $1). Consequently, on October 23, 2009, plaintiffs moved, by order to show cause to (1) vacate the slays issued by this court, entered on September 23, 2009 and September 25, 2009 and restore this matter to active status, (2) restore motions bearing sequence numbers 001 and 002 to the calendar, (3) have the court direct that discovery be expedited, and (4) for a case management order. Here, plaintiffs have sufficiently demonstrated that they timely moved this court for restoration within less than two weeks after the bankruptcy stay was lifted, which was approximately two months after the matter was marked off the active calendar (Order to Show Cause; Aff. in Supp., Exs. B, C). Plaintiffs also presented evidence that each of the defendants vere put on notice of plaintiff's application to the bankruptcy court to lift the stay and that none of the defendants sought to join in that application (Order to Show Cause; Aff. in Supp., Ex. C). Plaintiffs could be prejudiced if this motion were denied because of defendants’ “lack of diligence in seeking and or joining in plaintiff[s’] bankruptcy (cjourt applications for which they were fully on notice” (Reply Aff. ] 11). Accordingly, those branches of plaintiffs’ motion seeking to restore this matter and motions bearing sequence numbers 001, 002, 004 and 005 to active status is granted. Plaintiffs also ask that this court sever the defendants’ cross-claims to facilitate discovery and prevent prejudice (Reply Aff. in Further Supp. 46). This court may sever claims “{i]n Page 3 of 7 furtherance of convenience or to avoid prejudice” (CPLR 604; see CPLR 1010). Thus, this court will sever all cross-claims against Testwell unless the cross-claimant has successfully lifted the bankruptcy stay as it pertains to its cross-claims against Testwell and serves a copy of such an order upon this court and all parties within 30 days of entry of this order. The court notes that the parties were pul on notice of the court's intention to so proceed at oral argument on October 30, 2009, so thal by the time this 30 days elapse they will have had over three months to accomplish what plaintiff managed to accomplish relatively quickly after the stay came to the court’s attention. Further, given this conditional severance, the complexity of this matter, and because motions bearing sequence numbers 001,002, 004 and 005 are hereby restored to the calendar, this court cannot find, at this time, that issuing an expedited discovery schedule is either called for by the parties’ conduct, nor that it would “facilitate the resolution of [this] case{]” (Brustowsky v Herbst, 4 AD3d 220, 221 [1st Dept 2004]; see 22 NYCRR 202.19 [b] [2] [i]), nor that it would serve the interest of justice (see CPLR 3403 [a] [3]; Afarer ofN Y. County Diet Drug Litig., 262 AD2d 132, 132 [Ist Dept 1999], Iv dismissed and denied 94 NY2d 895 [2000}). The differentiated case management system currently employed by the Office of Court Administration envisions three tracks of cases: expedited; standard and complex. Currently, this action is deemed standard. While an argument could be made that the instant action should be deemed complex, due to the large number of ancillary litigations, a determination to conduct “expedited” discovery is not warranted. Such a determination is not a function of public or media interest, nor frankly, simply because plaintiffs desire such an approach. Rather, it is a function of analysis of balancing the prejudice to the parties and the potential effect on the resolution of the case’s merits if the court takes the case off the standard (rack. Page 4 of 7 Every plaintiff desires to have his or her case expedited. With literally over 700 cases in its inventory, over a thousand motions made a year, it is simply impossible for the court to accommodate every plaintiff's desire to have his or her case decided yesterday. Indeed, much of the wheel-spinning in this action is due simply to a lack of cooperation among counsel and what seems to the court to be inordinate effort to “short-circuit” the ordinary discovery process by both sides of the lawsuit. As the court urged the parties at the oral argument of this motion, the instant motion should have been resolved by stipulation. Litigants go in and out of bankruptcy on a regular basis; litigants die and need to have representatives appointed. Cases are stayed and stays lifted, all by the simple “so ordering” of a stipulation. The original order staying this action specifically advised that counsel could restore it by stipulation. Of course, when counsel do not cooperate, then motions are generated, causing unnecessary delay and expense to the litigants. The litigants and their counsel chart their own course. Defendants also seek various forms of relief. Defendant Dematteis “has no opposition to vacating the stay" but asks this court to also “lift the stay in all 20 [related] cases pending before this” court without formally cross-moving for such relief (Aff. ‘in Partial Opp., (6). Defendant Testwell “seek{s] clarification” because the so ordered stipulation seems to only limit Testwell’s 1 liability as to plaintiffs’ claims and not as to the cross-claims commenced by co-defendants (Aff. with Regard to Order to Show Cause, at 3). Thus, Testwell “ha[s] no objection to the relief sought” so long as “all claims, cross claims and counterclaims for contribution and : indemnification are limited to the available insurance proceeds of insurance maintained” (Aff with Regard to Order to Show Cause, at 3). In essence, Testwell seeks a declaration of rights which necessarily turns on a substantive analysis of the so-ordered stipulation. Defendant Sorbara opposes the motion because “Sorbara has ci ass claim[{s] against Testwell for Page 5 of 7 indemnification and contribution” and because Sorbara was not a party to the stipulation, and they argue that the stay should be lifted “‘only if, plaintiffs] and all parties unconditionally agree that Sorbara will not be required to pay any party any part of Testwell’s liability” (Aff. In Opp, 95, 9). Despite their requests for these various forms of relief, none of the defendants has formally cross-moved. Ifa party opposing a motion also affirmatively demands relief, that party must formally cross-move to demand such relief (see CPLR 2215; see generally 197 Siegel's Practice Review, Mere Mention of Request for Relief in Papers Opposing Main Motion Does No Satisfy “Cross- Motion”, Cross Relief Denied, at 4 [May 2008]). Here, none of the defendants have filed cross- motions for the various forms of relief sought and in “the absence of a notice of cross motion,” this court is “without jurisdiction to grant the relief afforded to defendants” (Myung Chun v North Am. Mtge. Co., 285 AD2d 42, 45 [1st Dept 2001]; see Siegel, NY Prac § 249, at 423 [4th ed] (“when the opposing party wants both to oppose the main motion as well as obtain affirmative relief of [his or] her own, [that opposing party) is to include a notice of cross-motion”]). Therefore, this court declines to address those improper requests (see Guggenheim v Guggenheim, 109 AD2d 1012, 1012 [3d Dept 1985} [“Itis not as a rule sufficient to demand such relief in opposing affidavits or memoranda”’], quoting Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C2215:1). Accordingly, it is ORDERED that plaintiffs’ motion to vacate the stay of this matter and restore it to active status is granted to the extent that plaintiff's claims against the defendants are restored to active status together; and it is further Page 6 of 7 MaSSS SSS SSS SSS ORDERED that plaintiffs are awarded $100 costs pursuant to CPLR 8106 and CPLR 8202; and it is further ORDERED that any cross-claims by any defendant against any other defendant other than Testwell are restored to active status; and it is further ORDERED that the Clerk of Trial Support and Clerk of Motion Support are directed to restore motions bearing motion sequence numbers 001 , 002 and 004 to the Motion Submissions Calendar, 60 Centre Street, Room 130 for February 1, 2010 at 9:30 a.m.; and it is further ORDERED that the Clerk of Trial Support and Clerk of Motion Support are directed to testore motion bearing sequence number 005 to active status and it is decided in accordance with the separate decision and order of today’s date; and it is further ORDERED that plaintiffs’ motion seeking to sever defendant Sorbara’s cross-claims against defendant Testwell is granted, as are any other cross-claims against Testwell, unless Sorbara ,or any other cross-claimant against Testwell, successfully lifts the bankruptcy stay as to its cross-claims against Testwell and serves a copy of such an order upon this court and all parties within 30 days of entry of this order, in which event the motion for severance shall be deemed denied and it is further ORDERED that plaintiffs’ motion is denied in all other respects except to the extent sct forth in a separately issued Case Management Order; and it is further ORDERED that plaintiffs shall serve a copy of this order on all parties and third-parties, if any, and upon the Clerks of Trial Support and Motion Support. 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