FILED: NEW YORK COUNTY CLERK 10/27/2020 10:08 AM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 159080/2020
`
`RECEIVED NYSCEF: 10/27/2020
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`
`
`WESCO INSURANCE COMPANY, as
`subrogee of Eastside 46 LLC and 312 East
`106th Street LLC,
`
`
`Plaintiff,
`
`
`
`
`
`Index No.
`
`Purchased: _____ /_____ /2020
`
`
`
`/2020
`
`-against-
`
`SUMMONS
`
`
`308-310 REALTY LLC; C&J CON-
`STRUCTION AND PAINTING LLC; and
`A&T ENGINEERING P.C.,
`
`Defendants.
`
`
`Plaintiff designates New York County as
`the place of trial. The basis of venue is
`Plaintiff’s place of business, where the
`action arose, and place of injury to Plain-
`tiff’s insured’s property.
`
`
`
`To the above-named Defendant(s):
`
`
`
`YOU ARE HEREBY SUMMONED to answer the Complaint in this action and
`
`to serve a copy of your Answer on the Plaintiff's attorney within twenty (20) 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 thirty (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.
`
`
`
`D’ARCY JOHNSON DAY, P.C.
`
`Dated: New York, New York
` October 26, 2020
`
`
`
`
`
`
`
`
`
`
`
`
` By: /s/ Peter W. Smith
` Peter W. Smith
`1501 Broadway, 12th Floor
`New York, New York 10036
`(212) 799-1470
`PSMITH@DJDLAWYERS.COM
`
`Attorneys for Plaintiff,
`Wesco Insurance Company
`Wesco Insurance Company, as subro-
`gee of Eastside 46 LLC and 312 East
`106th Street LLC
`
`
`
`
`
`
`
`1 of 10
`
`
`NYSCEF DOC. NO. 1
`
`INDEX NO. 159080/2020
`
`RECEIVED NYSCEF: 10/27/2020
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`
`
`WESCO INSURANCE COMPANY, as
`subrogee of Eastside 46 LLC and 312 East
`106th Street LLC,
`
`
`Plaintiff,
`
`
`
`
`
`Index No.
`
`Purchased: _____ /_____ /2020
`
`
`
`/2020
`
`-against-
`
`SUMMONS
`
`
`308-310 REALTY LLC; C&J CON-
`STRUCTION AND PAINTING LLC; and
`A&T ENGINEERING P.C.,
`
`Defendants.
`
`
`Plaintiff designates New York County as
`the place of trial. The basis of venue is
`Plaintiff’s place of business, where the
`action arose, and place of injury to Plain-
`tiff’s insured’s property.
`
`
`
`To the above-named Defendant(s):
`
`
`
`YOU ARE HEREBY SUMMONED to answer the Complaint in this action and
`
`to serve a copy of your Answer on the Plaintiff's attorney within twenty (20) 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 thirty (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.
`
`
`
`D’ARCY JOHNSON DAY, P.C.
`
`Dated: New York, New York
` October 26, 2020
`
`
`
`
`
`
`
`
`
`
`
`
` By: /s/ Peter W. Smith
` Peter W. Smith
`1501 Broadway, 12th Floor
`New York, New York 10036
`(212) 799-1470
`PSMITH@DJDLAWYERS.COM
`
`Attorneys for Plaintiff,
`Wesco Insurance Company
`Wesco Insurance Company, as subro-
`gee of Eastside 46 LLC and 312 East
`106th Street LLC
`
`
`
`
`
`
`
`1 of 10
`
`
`
`FILED: NEW YORK COUNTY CLERK 10/27/2020 10:08 AM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 159080/2020
`
`RECEIVED NYSCEF: 10/27/2020
`
`
`
`
`
`
`DEFENDANTS’ ADDRESSES:
`
`308-310 Realty LLC
`35-37 86th Street
`Jackson Heights, New York 11372
`
`
`C&J Construction and Painting LLC
`4419 3rd Avenue B
`Bronx, New York 10457
`
`
`A&T Engineering, P.C.
`4610 61st Street, Apt. 11C
`Woodside, New York 11377
`
`
`
`
`
`
`2
`
`2 of 10
`
`
`
`FILED: NEW YORK COUNTY CLERK 10/27/2020 10:08 AM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 159080/2020
`
`RECEIVED NYSCEF: 10/27/2020
`
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`
`
`Index No.
`
`
`
`
`
`
`
`/2020
`
`COMPLAINT
`
`WESCO INSURANCE COMPANY, as
`subrogee of Eastside 46 LLC and 312 East
`106th Street LLC,
`
`
`-against-
`
`Plaintiff,
`
`
`308-310 REALTY LLC; C&J CON-
`STRUCTION AND PAINTING LLC; and
`A&T ENGINEERING P.C.,
`
`Defendants.
`
`
`
`
`Plaintiff, Wesco Insurance Company, as subrogee of Eastside 46 LLC and 312
`
`East 106th Street LLC (“Wesco”), by its attorneys, D’Arcy Johnson Day P.C., alleges the
`
`following for its Complaint:
`
`PARTIES
`
`1.
`
`Wesco is a corporation organized and existing under the laws of the State
`
`of Delaware and authorized to transact business in the State of New York with its prin-
`
`cipal place of business at 59 Maiden Lane, 6th Floor, New York, New York 10038.1
`
`2.
`
`On information and belief, Defendant 308-310 Realty LLC (“Realty”) is a
`
`domestic limited liability company, organized and existing by virtue of the laws of the
`
`State of New York. Realty maintains its principal place of business at 35-37 86th Street,
`
`Jackson Heights, New York 11372.
`
`3.
`
`On information and belief, Realty is engaged in the real estate business.
`
`
`1 Unless otherwise stated, allegations herein are made regarding all times relevant to this action and believed to be
`true at all times relevant to this action.
`
`
`
`3 of 10
`
`
`
`FILED: NEW YORK COUNTY CLERK 10/27/2020 10:08 AM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 159080/2020
`
`RECEIVED NYSCEF: 10/27/2020
`
`4.
`
`Defendant C&J Construction and Painting LLC (“CJCP”) is a domestic lim-
`
`ited liability company, organized and existing by virtue of the laws of the State of New
`
`York. CJCP maintains its principal place of business at 4419 3rd Avenue B, Bronx, New
`
`York 10457.
`
`5.
`
`On information and belief, CJCP is engaged in the business of general con-
`
`tracting and construction.
`
`6.
`
`Defendant A&T Engineering, P.C. (“ATE”) is a domestic corporation, or-
`
`ganized and existing by virtue of the laws of the State of New York. ATE maintains its
`
`principal place of business at 4610 61st Street, Apt. 11C, Woodside, New York 11377.
`
`7.
`
`On information and belief, ATE is engaged in the business of providing
`
`professional engineering and demolition design services.
`
`FACTUAL ALLEGATIONS COMMON TO ALL COUNTS
`
`8. Wesco insured Eastside 46 LLC and 312 East 106th Street LLC (the “In-
`
`sureds”).
`
`9.
`
`The Insureds managed and owned the property, building, and improve-
`
`ments located at 312 East 106th Street, New York (the “Property”).
`
`10. Wesco issued an insurance policy to the Insureds, insuring them as the
`
`owners and/or managers of the Property against property damages, loss, and related
`
`expenses (the “Policy”). The coverage of the Policy was effective during all relevant
`
`times.
`
`11.
`
`The building on the Property has six stories plus a basement and contains
`
`twenty-eight units (the “Building”).
`
`12.
`
`The Property shares its western property line with the eastern property
`
`line of 308-310 East 106th Street, New York, New York (“Adjacent Property”).
`
`
`
`2
`
`4 of 10
`
`
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`FILED: NEW YORK COUNTY CLERK 10/27/2020 10:08 AM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 159080/2020
`
`RECEIVED NYSCEF: 10/27/2020
`
`13. On information and belief, the wall on the western side of the Building is
`
`adjacent to a construction site where an eight-story and basement building is being con-
`
`structed at the Adjacent Property (the “Adjacent Building”).
`
`14. On information and belief, Realty owns the Adjacent Property and Adja-
`
`cent Building.
`
`15.
`
`On information and belief, Realty engaged the other Defendants to con-
`
`struct and develop the Adjacent Building.
`
`16. On information and belief, construction on the Adjacent Property started
`
`around July 2017.
`
`17. New York City Department of Buildings (“DOB”) records indicate that
`
`permits were issued on August 7, 2017, to ATE for work at the Adjacent Building.
`
`18. DOB records indicate that permits were issued on October 5, 2017, to
`
`CJCP for general contracting work at the Adjacent Building.
`
`19. On information and belief, prior to and around April 2018, the Defendants
`
`were performing construction work at the Adjacent Property (the “Work”).
`
`20. On information and belief, Realty caused and directed the Work to occur
`
`by virtue of retaining or engaging the other Defendants to perform, design, plan, in-
`
`spect, and supervise the Work.
`
`21. On information and belief, contrary to the applicable codes, regulations,
`
`and laws, the Defendants did not obtain the Insureds’ consent prior to performing the
`
`Work.
`
`22. On information and belief, the Work was illegal in that it was undertaken
`
`in violation of numerous New York City Building Codes.
`
`
`
`3
`
`5 of 10
`
`
`
`FILED: NEW YORK COUNTY CLERK 10/27/2020 10:08 AM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 159080/2020
`
`RECEIVED NYSCEF: 10/27/2020
`
`23. On information and belief, the Work should have included safeguards to
`
`protect the foundation of the Insureds’ Building.
`
`24. On information and belief, on April 18, 2018, the Insureds’ Building shook
`
`and the exterior brick wall, which shares the property line with the Adjacent Building,
`
`severely cracked (the “Incident”).
`
`25. On information and belief, the Incident was caused by the Work at the Ad-
`
`jacent Building, which did not include protection of the Insured’s Building and Property.
`
`26.
`
`The failure to protect the Building at the Property caused the Incident and
`
`the resulting damage to the Building, including multiple severe cracks of the brick work,
`
`exterior walls, and the exterior façade along with cracks of interior walls and ceilings of
`
`apartments within the Building (the “Damage”).
`
`27.
`
`A Full Stop Work Order was issued at the Adjacent Building on April 18,
`
`2018, for a "failure to safeguard all persons and property affected by construction" in
`
`response to a complaint concerning damage to an "adjacent building." (the “Stop Work
`
`Order”).
`
`28. On April 18, 2018, the DOB issued a partial vacate order for apartments 6,
`
`7, 11, 12, 16, 17, 21, 22, 26 and 27 in the Building.
`
`29.
`
`The April 18, 2018 DOB partial vacate order of the Building was issued be-
`
`cause of the Incident and the Damage.
`
`30. DOB records also show that at least four (4) stop work orders had been
`
`served at the Adjacent Property, along with a total of twelve (12) violations, including
`
`violation number 35323170R on April 24, 2018, for "failure to safeguard all persons and
`
`property affected by construction operations. There are multiple cracks in the facade
`
`
`
`4
`
`6 of 10
`
`
`
`FILED: NEW YORK COUNTY CLERK 10/27/2020 10:08 AM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 159080/2020
`
`RECEIVED NYSCEF: 10/27/2020
`
`and several apartments at [the Building] due to construction activities at the [Adjacent
`
`Property.]"
`
`31.
`
`The Work at the Adjacent Property before and about the time of the Inci-
`
`dent was not adequately supervised and controlled.
`
`32.
`
`The Work at the Adjacent Property before and about the time of the Inci-
`
`dent caused the Damage.
`
`33.
`
`An inspection of the Property and Building on April 26, 2018, revealed the
`
`Damage.
`
`34.
`
`35.
`
`36.
`
`The Damage was caused by Work at the Adjacent Property.
`
`The Damage occurred because the Work did not protect the Building.
`
`To date, Wesco has paid $643,111.45 under the Policy to the Insureds
`
`and/or on behalf of the Insureds as a direct result of the Defendants’ acts and omissions
`
`alleged herein, and the payments are ongoing.
`
`37. Wesco is subrogated to all claims of the Insureds against the Defendants
`
`related to the Damage and the Work.
`
`38. Based on the allegations contained herein, the Defendants are liable to
`
`Wesco in an amount to be determined at trial not less than $643,111.45.
`
`AS AND FOR A FIRST CAUSE OF ACTION
`(Negligence Against All Defendants)
`
`39. Wesco repeats, re-alleges, and incorporates the foregoing paragraphs.
`
`40.
`
`41.
`
`The Defendants caused or undertook the Work.
`
`The Defendants breached their duty to the Insureds to provide adequate
`
`support and take other measures, as dictated by the applicable building codes, laws, and
`
`regulations, to prevent damage to the Building during the Work.
`
`
`
`5
`
`7 of 10
`
`
`
`FILED: NEW YORK COUNTY CLERK 10/27/2020 10:08 AM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 159080/2020
`
`RECEIVED NYSCEF: 10/27/2020
`
`42.
`
`43.
`
`The Damage was foreseeable.
`
`The Defendants were negligent and failed to exercise reasonable care in
`
`the performance, design, planning, supervision, monitoring, and/or inspection of the
`
`Work.
`
`44.
`
`The recklessness, negligent, and gross negligent acts and omissions of the
`
`Defendants described above were the direct and proximate cause of the Damage, which
`
`resulted in Wesco’s payment to the Insureds and/or paid on behalf of the Insureds un-
`
`der the Policy.
`
`45. Wesco is subrogated to all claims of the Insureds against the Defendants
`
`related to the Damage and the Work.
`
`46. Defendants are obligated to reimburse Wesco for the amounts that Wesco
`
`has paid to the Insured and/or paid on behalf of the Insured under the Policy for claims
`
`related to the Damage.
`
`47.
`
`By reason of the foregoing, the Defendants are liable to Wesco in an
`
`amount to be determined at trial not less than $643,111.45.
`
`AS AND FOR A SECOND CAUSE OF ACTION
`(Strict Liability Against All Defendants: NYC Building Code § 28-3309)
`
`48. Wesco repeats, re-alleges, and incorporates the foregoing paragraphs.
`
`49.
`
`The Defendants caused or undertook the Work.
`
`50. Defendants’ actions and omissions in the Work and other construction ac-
`
`tivity at the Property caused substantial damage to the Property and the Building.
`
`51.
`
`The Damage is the direct and proximate result of Defendants’ actions and
`
`omissions in the Work and other construction activity at the Property.
`
`
`
`6
`
`8 of 10
`
`
`
`FILED: NEW YORK COUNTY CLERK 10/27/2020 10:08 AM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 159080/2020
`
`RECEIVED NYSCEF: 10/27/2020
`
`52. Defendants’ liability to Wesco is absolute pursuant to New York City
`
`Building Code § 28-3309 and common law.
`
`53. Wesco is subrogated to all claims of the Insureds against the Defendants
`
`related to the Damage and the Work.
`
`54. Defendants are obligated to reimburse Wesco for the amounts that Wesco
`
`has paid to the Insured and/or paid on behalf of the Insured under the Policy for claims
`
`related to the Damage.
`
`55.
`
`By reason of the foregoing, the Defendants are strictly liable to Wesco in
`
`an amount to be determined at trial not less than $643,111.45.
`
`
`
`WHEREFORE, Wesco demands judgment against Defendants, jointly and sev-
`
`erally, in an amount to be determined at trial, but not less than $643,111.45, with inter-
`
`est, the costs and disbursements of this action, together with such other and further re-
`
`lief as the Court deems proper.
`
`
`
`
`
`
`
`
`
`Dated: New York, New York
`
` October 26, 2020
`
`
`
`
`
`
`
`
`
`
`
`D’ARCY JOHNSON DAY, P.C.
`
`By:
`
`
`
`
`
`
`
`
`/s/ Peter W. Smith
`Peter W. Smith
`1501 Broadway, 12th Floor
`New York, New York 10036
`(212) 799-1470
`PSMITH@DJDLAWYERS.COM
`
`Attorneys for Plaintiff,
`Wesco Insurance Company, as subro-
`gee of Eastside 46 LLC and 312 East
`106th Street LLC
`
`
`
`7
`
`9 of 10
`
`
`
`
`
`FILED: NEW YORK COUNTY CLERK 10/27/2020 10:08 AM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 159080/2020
`
`RECEIVED NYSCEF: 10/27/2020
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`
`
`WESCO INSURANCE COMPANY, as
`subrogee of Eastside 46 LLC and 312 East
`106th Street LLC,
`
`
`
`Index No. ________ / 2020
`
`
`
`
`-against-
`
`Plaintiff,
`
`
`
`
`
`308-310 REALTY LLC; C&J CON-
`STRUCTION AND PAINTING LLC; and
`A&T ENGINEERING P.C.,
`
`Defendants.
`
`
`
`
`
`
`
`
`
`SUMMONS AND COMPLAINT
`
`
`
`
`D’A R C Y J O H N S O N D A Y P . C .
`PETER W. SMITH, ESQ.
`1501 BROADWAY, 12TH FLOOR
`NEW YORK, NEW YORK 10036
`PSMITH@DJDLAWYERS.COM
`(212) 799-1470
`
`Attorneys for Plaintiff,
`Wesco Insurance Company, as subrogee of
`Eastside 46 LLC and 312 East 106th Street LLC
`
`
`The undersigned hereby certifies that the annexed documents are not frivolous as defined in subsection
`(c) of section 130-1.1 of the Rules of the Chief Administrator of the Courts.
`
`
`
`
` /s/ Peter W. Smith
`Peter W. Smith
`
`
`
`
`
`
`
`
`
`
`
`
`10 of 10
`
`
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