Kiss v. Clinton Green North, LLC et al

Filing 170

ORDER denying 168 Letter Motion for Local Rule 37.2 Conference. Application DENIED. No circumstances warrant changing the prior ruling. With or without such a motion, AvalonBay represents that it will have to establish that the Master Agreement is valid and enforceable. The adjudication of that issue will be law of the case. At that time, AvalonBay may renew its request to seek summary judgment on the issue of contractual indemnification by Judy Painting. (Signed by Judge Lorna G. Schofield on 1/15/2020) (rj)

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 1/15/20

Application DENIED. No circumstances warrant changing the
prior ruling. With or without such a motion, AvalonBay
represents that it will have to establish that the Master
Agreement is valid and enforceable. The adjudication of that
issue will be law of the case. At that time, AvalonBay may
renew its request to seek summary judgment on the issue of
contractual indemnification by Judy Painting.

VIACM/ECF

The Honorable Loma G. Schofield
United States District Court for the
Southern District of New York
500 Pearl Street, Room 640
New York, New York 10007
Re:

Dated: January 15, 2020
New York, New York

Kiss v. Clinton Green North, LLC, et al.
Docket No. 17 Civ. 10029 (LGS)
Newman Myers Ref. No.: NABV 22303

Dear Judge Schofield:
We represent Defendants Clinton Green North, LLC, Dermot Clinton Green, LLC and
AvalonBay Communities, Inc. and Third-Party Plaintiff Clinton Green North, LLC (collectively
"AvalonBay") in the above-referenced matter. Per the instructions from Y our Chambers we are
seeking permission to file a Cross-Motion for Summary Judgment in this matter.
By way of background, pursuant to the Court's Brief Scheduling Order, [Dkt. #159], on
January 10th Third-Party Defendant, Judy Painting Corp. ("Judy Painting") filed its Motion for
Summary Judgment, in which it argued that AvalonBay's contractual indemnification claim
against Judy Painting must be dismissed because the Operational Master Services Agreement
(the "Master Agreement") between the parties is not valid and is unenforceable. [Dkt. # 166 at
pp. 21-25]. To address this, AvalonBay must establish that the Master Agreement is valid and
enforceable - the very arguments that AvalonBay would make if it filed a Cross-Motion for
Summary Judgment. As the Court will recall, AvalonBay previously requested permission to
file a Motion for Summary Judgment seeking contractual indemnification from Judy Painting
[Dkt. # 163]. The Court allowed Judy Painting to file an Opposition, [Dkt. # 164], wherein
Judy Painting argued that AvalonBay's request was untimely. In its Order dated December 16,
2019, the Court agreed with Judy Painting that AvalonBay's request was untimely and on that
basis denied AvalonBay's request to file a Motion for Summary Judgment for contractual
indemnification. [Dkt. # 165].

NEWMAN MYERS KREINES GROSS PIARRIS, P.C.
AvalonBay respectfully submits that by arguing that the Master Agreement is not
valid and unenforceable, Judy Painting has "opened the door" for AvalonBay to renew its
request and waived any argument that such a motion is "untimely".
I spoke with Your Chambers yesterday about this matter seeking guidance as to
how to proceed and was instructed to contact Judy Painting's counsel to see if she would
consent to AvalonBay's Cross-Motion. Attached as Exhibit A hereto is an email from
Bolam Kim, Judy Painting's counsel, indicating that "Unfortunately, I do not have
authority from my carrier to consent to a cross-motion." In light of this, AvalonBay
respectfully requests that the Court grant it permission to file a Cross-Motion for
Summaiy Judgment on its contractual indemnification claim against Judy Painting.
Permitting a Cross-Motion would also serve the interests of judicial economy. If the
Cross-Motion is granted, such a ruling would obviate the related coverage action against
Judy Painting and its insurer. Merchants Mutual, since any potential statutory and
vicarious liability to Plaintiff would be passed through contractual indemnity to Judy
Painting, which in turn, will be covered by its insurer, Merchants Mutual.
Avalon Bay does not expect that the cun-ent twenty-five (25) page limit for its
Opposition to Judy Painting's Motion for Summary Judgment will be exceeded if the
Com-t permits it to include a Cross-Motion for Summary Judgment. Additionally,
AvalonBay's Cross-Motion will be filed on the original return date for its Opposition February
Per the deadlines set forth in the Court's Briefing Schedule Order,
AvalonBay proposes that Judy Painting's Opposition to the proposed Cross-Motion
would be due by March 6"^ and AvalonBay's Reply would be due by March 13"^.
Respectfully submitted.
GROSS HARRIS, RC.

Timothy B. Parlin
TBP
VIACM/ECF
Counsel in the Underlying Action:

Holly Ostrov Ronai, Esq.
Timothy Lavin, Esq.
Attorneys for Plaintiff
Ronai & Ronai, LLP
34 Adee Street
Port Chester, New York 10573

NEWMAN MYERS KKEINES GROSS HARRIS, P.C.

Bolam Kim, Esq.
Attorneys for Defendant^ Third-Party Defendant Judy Painting Corp.
Wood Smith Harming & Berman LLP
685 Third Avenue
New York, New York 10017
Joseph A. Ruta, Esq.
Attorneys for Third-Party Defendant Z & Z Services, Inc.
Ruta, Soulios & Stratis LLP
211 East 43'''' Street
24'h Floor
New York, NY 10017

Exhibit A

Tim Parlin
From:
Sent:
To:
Cc:
Subject:

Bolam Kim <[e-mail]>
Monday, January 13, 2020 6:14 PM
Tim Parlin
Tracy J. Abatemarco
Kiss - Cross-Motion

Hi Tim:
I received your voicemail about your cross-motion. Unfortunately, I do not have authority from my carrier to consent to
a cross-motion. Thanl<you.
Best,
Bolam

Bolam Kim
Senior Counsel | Wood, Smith, iHenning & Berman LLP
685 3rd Avenue, 18th Floor | New York, NY 10017
bkimcawshblaw.com | T [phone] | M [phone]

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