Opinion
15562/2010.
Decided February 25, 2011.
The defendant's motion for summary judgment in a negligence action against an electrical contractor who maintained traffic signals for a municipality is denied. Compare Laap v Francis , 54 AD3d 1006 [2nd Dept. 2008] [affirming denial of motion so as to allow further discovery] with Sneed v City of New York, 25 Misc 3d 126 [A], 2009 WL 3297498 [App T 2nd Dept. 2009] [granting summary judgment motion].
There have been no EBTs in this action and no significant discovery. The reply affirmation of Daniel J. McCarey, Esq., makes clear that defendant has provided the records for only 30 days prior to the accident. McCarey Reply Affirmation, para. 11. More discovery is needed as to whether Welsbach knew of the dangerous condition. See, Laap, 54 AD3d 1006, supra.
One final matter is worthy of comment. On the return date of the motion, the Court denied an opportunity for plaintiff's attorney, Souren A. Israelyan, Esq., to submit a sur-reply affirmation. Mr. Israelyan wanted to do so to address what he discerned was a personal attack on him contained in Mr. McCarey's reply. In reviewing the reply affirmation of Mr. McCarey, the Court agrees that Mr. McCarey's references, [at paras. 27-32, pp. 7-8], quoting excerpts of Mr. Israelyan's defense of Welsbach in other past litigations, when Mr. Israelyan was associated at the same defense law firm, London Fischer, LLP, were improper. Mr. Israelyan, while employed at London Fischer, LLP, owed to Welsbach a duty of loyalty. To quote from Mr. Israelyan's past affirmations when he defended Welsbach is improper and inappropriate, although a sign of Mr. McCarey's dogged pursuit of his client's interests and ingenuity. This Court thus ignored the allegations of paras. 27-32 of the reply affirmation
The foregoing constitutes the decision, order, and opinion of the Court.