that all parties shall respond to outstanding discovery

days of completion of Plaintiff's deposition; IMEs to be conducted within sixty

days of designation; reports to be exchanged within

that all parties shall serve post- deposition demands within of examination(s).

for Plaintiffs Attorneys 1444 Clove Road Island, NY 10301 Staten E920am2 sta2s5595

However, in light of the Onardian Ad Litem's indication that he is unable to reasonably cornmunicate with the Plaintiff, no further hearing is necessary, and the parties with an application pursuant to Article 81 of the Mental Hygiene Law of the State are directed to proceed of New York without delay.

guardian ad litem, due to plaintiff's purportedly medically diagnosed traumatic brain injury which resulted in cognitive deficits of impairment in memory, decision making, concentration, emotional regulation, comprehension, and vocal his expression, including lack of memory regarding the accident and his inability to provide fegal testimony.

In support of the motion, they assert that plaintiff was engaged in an enumerated activity protected under Labor Law § 240 (1), when he was performing construction/demolition work on a roof that collapsed causing him to fall approximately feet to the ground and sustain injuries.

When Mr. Serednitskiy went over to investigate, he observed plaintiff on the floor, "wearing all of his protective gear" and that "the part of the roof that collapsed was wide enough for him to fit through it"

Finally, in anticipation of defendants' opposition, p[aintiffs assert that this motion cannot be considered "premature" pursuant to CPLR 3212 (0, because the facts are not 9 of

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Trial Term, Part p of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, locsted at Civic Center, Borough of Brooklyn, City and State of New York, on to" Z/lbrt * *f/e,U, 2023 Cal.

Hon.

6t Qrur/1< The following papers numbered I to Notice of Motion - Order and Attdavits (Atnrmations) Ann Answering Affi davit (Affi rmation) Reply Affi davit (Affi rmation) Affidavit (Affirmation) Cause xhibits Pleadings- E Stipulations - Minutes Filed Papers

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Trial Term, Part p of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, locsted at Civic Center, Borough of Brooklyn, City and State of New York, on to" Z/lbrt * *f/e,U, 2023 Cal.

Hon.

6t Qrur/1< The following papers numbered I to Notice of Motion - Order and Attdavits (Atnrmations) Ann Answering Affi davit (Affi rmation) Reply Affi davit (Affi rmation) Affidavit (Affirmation) Cause xhibits Pleadings- E Stipulations - Minutes Filed Papers

rJ DeAt eQ kftert& t7 t< drfthf4w,l qt nooy' 49 For Clerks use only t\?

Trial Term, Part p of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, locsted at Civic Center, Borough of Brooklyn, City and State of New York, on to" Z/lbrt * *f/e,U, 2023 Cal.

Hon.

6t Qrur/1< The following papers numbered I to Notice of Motion - Order and Attdavits (Atnrmations) Ann Answering Affi davit (Affi rmation) Reply Affi davit (Affi rmation) Affidavit (Affirmation) Cause xhibits Pleadings- E Stipulations - Minutes Filed Papers

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ROSS V. CARPENTER, an attorney duly admitted to the practice of law in the Courts of the State of New York, affirms the following to be true under the penalties of perjury:

GSC, does however, respectfully oppose Plaintiff’s demands to vacate this Court’s February 1, 2023 Order (NYSCEF Doc. 433) and enter summary judgment in Plaintiff’s favor.

20) on August 11, 2023 and Wilson Elser Moskowitz Edelman & Dicker filed a Consent to Change Attorney, assuming representation of Bordone on September 25, 2023.

The Court held “the three affidavits [of Ariza, Dopsaj and Serednitskiy] are insufficient to establish plaintiff’s prima facie right to summary judgment….” (NYSCEF Doc. 433 at pg.

TO: Subin Associates 150 Broadway, 23rd Floor New York, NY 10038 Attorney for Plaintiffs, Abbos Abbosov and Albina Abbosov Lewis Brisbois Bisgaard & Smith, LLP 77 Water Street, Suite 2100 New York, NY 10005 Prior Counsel for Defendant/Second Third-Party Plaintiff, Bordone Contracting LLC Wilson Elser Moskowitz Edelman & Dicker 1133 Westchester Avenue White Plains, NY 10604 Attorney for Defendant/Second Third-Party Plaintiff, Bordone Contracting LLC Litchfield Cavo, LLP 420 Lexington Avenue Suite 2104 New York, NY 10170 Attorney for Defendants/Third Party Plaintiffs, Wildflower LTD, LLC and WF Industrial I LLC Lewis Johs Avallone Aviles, LLP 61 Broadway, Suite 2000 New York, NY 10006 Attorney for Defendant, South Bay Engineering, PLLC

STEPHEN R. MACHO, an attorney admitted to practice in the Courts of the State of New York affirms the truth of the following, upon information and belief and based upon the records maintained in the office of LEWIS JOHS AVALLONE AVILES LLP, under the penalties of perjury:

I am an associate of the firm Lewis Johs Avallone Aviles LLP, attorneys for defendant SOUTHBAY ENGINEERING, PLLC (“SOUTHBAY”) in the above-referenced matter and thus, I am fully familiar with the facts and circumstances as stated herein.

Additionally, as Wilson Elser Moskowitz Edelman & Dicker filed a Consent to Change Attorney, assuming representation of Bordone on September 25, 2023, SOUTHBAY respectfully asks that in the interests of justice the Court provide Bordone’s new counsel additional time to, at the very least, respond to Plaintiff’s request for summary judgment.

However, Judge Landicino’s February 1, 2023, decision denying summary judgment was certainly based on more than just the affidavits of Mr. Bordone and Mr. Mazzurco.

Specifically, the Court held “the three affidavits [of Ariza, Dopsaj and Serednitskiy] are insufficient to establish plaintiff’s prima facie right to summary judgment….” (NYSCEF Doc. 433 at pg.

------------------------------------------------------------------------x On September 29, 2021, this Court issued a Decision and Order wherein it held that sufficient evidence had been presented that the Plaintiff Abbos Abbosov should have a guardian ad /item appointed on his behalf.

It is hereby ORDERED that Dominick Dale, Esq., 7002 Nansen Street, Forest Hills, NY 11375, is appointed guardian ad lilem for Plaintiff Abbos Abbosov; and it is further ORDERED that Dominick Dale, Esq., shall file a copy of his written consent and the affidavit of Plaintiff Abbos Abbosov, as required by CPLR § 1202( c ), together with a copy of this order with notice of entry upon the Fiduciary Clerk; and it is further

ORDERED that pursuant to CPLR §1201, the guardian ad !item shall appear for and protect Plaintiff Abbos Abbosov's interests in this action, and that the Court may award reasonable compensation for the services performed by a guardian ad /item after the guardian ad lit em has filed an affidavit showing the services rendered pursuant to CPLR § 1204; and it is further ORDERED that any appointee shall comply with Section 35-a of the Judiciary Law and Parts 36 and 26 of the Rules of the Chief Judge.

The Notice of Appointment and Certification of Compliance, form UCS-872 and the Statement of Approval of Compensation, form UCS-875 shall be filed with the Office of the Fiduciary Clerk at 360 Adams Street, Brooklyn, :-Jew York; and it is further ORDERED that movant Plaintiffs shall serve a copy of this order with notice of entry upon the Clerk of the Court and upon the Clerk of the Trial Support Office.

Movant Plaintiffs shall forthwith serve a copy of this order on the guardian ad !item and all other appearing parties.

The Plaintiffs further argue that these injuries have resulted in a circumstance where Mr. Abbosov "suffers from permanent cognitive and memory deficits due to his TBI [Traumatic Brain Injury] and he remains permanently incapable of protecting his rights or his person from harm in the instant action."

Defendants Bordone Contracting, LLC, South Bay Engineering, PLLC, Wildflower Ltd. LLC and WF Industrial I, LLC (hereinafter referred to individually or collectively as the "Defendants") oppose the 1 Although the Notice of Motion specifies the aforesaid relief, the Affirmation in Support at Paragraph 23 indicates the request for even broader powers as follows: "A. Power to retain counsel or direct present counsel to represent the Guardian and/or AIP in respect to the proceedings of such guardian; B.

The Defendants argue that Plaintiff Abbos Abbosov is not so injured in that he is incapacitated and as a result a guardian ad !item should not be appointed and he should be required to testify at a deposition.

CPLR 1201 provides in pertinent part that: "A person shall appear by his guardian ad litem if he is an infant and has no guardian of his property, parent, or other person or agency having legal custody, or adult spouse with whom he resides, or if he is an infant, person judicially declared to be incompetent, or a conservatee as defined in section 77.01 of the mental hygiene law and the court so directs because of a conflict of interest or for other cause, or if he is an adult incapable of adequately prosecuting or defending his rights" (Emphasis added).

Turning to the merits of the Plaintiffs' application for the appointment of a guardian ad !item, the Court finds that sufficient evidence has been presented that the Plaintiff Abbos Abbosov should have a guardian ad !item appointed on his behalf because he is alleged to be "incapable of adequately prosecuting or defending his rights."