FILED: NEW YORK COUNTY CLERK 03/02/2021 11:11 AM
`
`NYSCEF DOC. NO. 14
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`INDEX NO. 159080/2020
`
`
`
`
`
`
`SE: 03/02/2021
`RECEIVED NYSCEF: 03/02/2021
`
`EXHIBITA
`
`EXHIBIT
`
`A
`
`

`

`FILED: NEW YORK COUNTY CLERK 03/02/2021 11:11 AM
`FILED: NEW YORK COUNTY CLERK 10/27/2020 10:08 AM
`NYSCEF DOC. NO. 14
`NYSCEF DOC. NO. 1
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`INDEX NO. 159080/2020
`INDEX NO. 159080/2020
`
`RECEIVED NYSCEF: 03/02/2021
`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 03/02/2021 11:11 AM
`FILED: NEW YORK COUNTY CLERK 10/27/2020 10:08 AM
`NYSCEF DOC. NO. 14
`NYSCEF DOC. NO. 1
`
`INDEX NO. 159080/2020
`INDEX NO. 159080/2020
`
`RECEIVED NYSCEF: 03/02/2021
`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
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`2 of 10
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`

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`FILED: NEW YORK COUNTY CLERK 03/02/2021 11:11 AM
`FILED: NEW YORK COUNTY CLERK 10/27/2020 10:08 AM
`NYSCEF DOC. NO. 14
`NYSCEF DOC. NO. 1
`
`INDEX NO. 159080/2020
`INDEX NO. 159080/2020
`
`RECEIVED NYSCEF: 03/02/2021
`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
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`FILED: NEW YORK COUNTY CLERK 03/02/2021 11:11 AM
`FILED: NEW YORK COUNTY CLERK 10/27/2020 10:08 AM
`NYSCEF DOC. NO. 14
`NYSCEF DOC. NO. 1
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`INDEX NO. 159080/2020
`INDEX NO. 159080/2020
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`RECEIVED NYSCEF: 03/02/2021
`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 03/02/2021 11:11 AM
`FILED: NEW YORK COUNTY CLERK 10/27/2020 10:08 AM
`NYSCEF DOC. NO. 14
`NYSCEF DOC. NO. 1
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`INDEX NO. 159080/2020
`INDEX NO. 159080/2020
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`RECEIVED NYSCEF: 03/02/2021
`RECEIVED NYSCEF: 10/27/2020
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`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
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`

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`FILED: NEW YORK COUNTY CLERK 03/02/2021 11:11 AM
`FILED: NEW YORK COUNTY CLERK 10/27/2020 10:08 AM
`NYSCEF DOC. NO. 14
`NYSCEF DOC. NO. 1
`
`INDEX NO. 159080/2020
`INDEX NO. 159080/2020
`
`RECEIVED NYSCEF: 03/02/2021
`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
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`

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`FILED: NEW YORK COUNTY CLERK 03/02/2021 11:11 AM
`FILED: NEW YORK COUNTY CLERK 10/27/2020 10:08 AM
`NYSCEF DOC. NO. 14
`NYSCEF DOC. NO. 1
`
`INDEX NO. 159080/2020
`INDEX NO. 159080/2020
`
`RECEIVED NYSCEF: 03/02/2021
`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
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`

`

`FILED: NEW YORK COUNTY CLERK 03/02/2021 11:11 AM
`FILED: NEW YORK COUNTY CLERK 10/27/2020 10:08 AM
`NYSCEF DOC. NO. 14
`NYSCEF DOC. NO. 1
`
`INDEX NO. 159080/2020
`INDEX NO. 159080/2020
`
`RECEIVED NYSCEF: 03/02/2021
`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
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`

`

`FILED: NEW YORK COUNTY CLERK 03/02/2021 11:11 AM
`FILED: NEW YORK COUNTY CLERK 10/27/2020 10:08 AM
`NYSCEF DOC. NO. 14
`NYSCEF DOC. NO. 1
`
`INDEX NO. 159080/2020
`INDEX NO. 159080/2020
`
`RECEIVED NYSCEF: 03/02/2021
`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 03/02/2021 11:11 AM
`FILED: NEW YORK COUNTY CLERK 10/27/2020 10:08 AM
`NYSCEF DOC. NO. 14
`NYSCEF DOC. NO. 1
`
`INDEX NO. 159080/2020
`INDEX NO. 159080/2020
`
`RECEIVED NYSCEF: 03/02/2021
`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
`
`

`

`FILED: NEW YORK COUNTY CLERK 03/02/2021 11:11 AM
`FILED: NEW YORK COUNTY CLERK 01/14/2021 12:59 PM
`NYSCEF DOC. NO. 14
`NYSCEF DOC. NO. 5
`
`INDEX NO. 159080/2020
`INDEX NO. 159080/2020
`
`RECEIVED NYSCEF: 03/02/2021
`RECEIVED NYSCEF: 01/14/2021
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`--------------------------------------------------------------X
`WESCO INSURANCE COMPANY, as subrogee of
`EASTSIDE 46 LLC and 312 EAST 106TH
`STREET LLC,
`
` Plaintiff,
`
` -against-
`
`308-310 REALTY LLC, C&J CONSTRUCTION
`AND PAINTING LLC and A&T ENGINEERING, P.C.,
`
` Defendants.
`----------------------------------------------------------------X
`
`
`
`
`
`
`
`ANSWER TO COMPLAINT
`
`
`INDEX NO.: 159080/2020
`
`
`
`Defendant, A&T ENGINEERING, P.C., by its attorney, LAW OFFICES OF
`
`TROMELLO & FISHMAN, answering the Complaint of the plaintiffs herein, allege upon
`
`information and belief:
`
`THE PARTIES
`
`
`
`1.
`
`Denies any knowledge or information sufficient to form a belief as to paragraphs
`
`designated “1”, “2”, “3”, “4” and “5” of the Complaint.
`
`
`
`2.
`
`Denies paragraph designated “6” of the Complaint as stated but admits that A&T
`
`ENGINEERING, P.C., is a domestic professional corporation in the State of New York.
`
`
`
`3.
`
`Denies paragraph designated “7” of the Complaint as stated, but admits that A&T
`
`ENGINEERING, P.C. performs certain professional services.
`
`FACTUAL ALLEGATIONS COMMON TO ALL COUNTS
`
`
`
`4.
`
`Denies any knowledge or information sufficient to form a belief as to paragraphs
`
`designated “8”, “9”, “10”, “11”, “12”, “13”, “14”, “16”, “17”, “18”, “19”, “24”, “27”, “28”,
`
`“29”, “30” and “33” of the Complaint.
`
`
`
`5.
`
`Denies any knowledge or information sufficient to form a belief as to paragraphs
`
`designated “15”, “20”, “23”, “31” and “37” of the Complaint and refers all questions of law to
`
`the Honorable Court at the time of trial.
`
`
`
`6.
`
`Denies paragraphs designated “21” of the Complaint as to defendant, A&T
`
`ENGINEERING, P.C., but denies any knowledge or information sufficient to form a belief as to
`
`the remaining allegations and refers all questions of law to the Honorable Court at the time of
`
`trial.
`
`1 of 6
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`

`

`FILED: NEW YORK COUNTY CLERK 03/02/2021 11:11 AM
`FILED: NEW YORK COUNTY CLERK 01/14/2021 12:59 PM
`NYSCEF DOC. NO. 14
`NYSCEF DOC. NO. 5
`
`INDEX NO. 159080/2020
`INDEX NO. 159080/2020
`
`RECEIVED NYSCEF: 03/02/2021
`RECEIVED NYSCEF: 01/14/2021
`
`
`
`7.
`
`Denies paragraphs designated “22”, “25”, “26”, “32”, “34”, “35”, “36” and “38” of
`
`the Complaint.
`
`ANSWERING THE FIRST CAUSE OF ACTION
`
`
`
`8.
`
`The defendant repeats and reiterates all the admissions and denials contained in the
`
`foregoing Answer, with reference to those paragraphs repeated and reiterated in paragraph
`
`designated “39” of the Complaint.
`
`
`
`9
`
`Denies any knowledge or information sufficient to form a belief as to paragraphs
`
`designated “40”, of the Complaint.
`
`
`
`10. Denies paragraphs designated “41”, “43”, “44”, “46” and “47” of the Complaint as to
`
`defendant, A&T ENGINEERING, P.C., but denies any knowledge or information sufficient to
`
`form a belief as to the remaining allegations.
`
`
`
`
`
`11. Denies paragraphs designated “42” of the Complaint.
`
`12. Denies any knowledge or information sufficient to form a belief as to paragraph
`
`designated “45” of the Complaint and refers all questions of law to the Honorable Court at the
`
`time of trial.
`
`ANSWERING THE SECOND CAUSE OF ACTION
`
`
`
`13.
`
`The defendant repeats and reiterates all the admissions and denials contained in
`
`the foregoing Answer, with reference to those paragraphs repeated and reiterated in paragraph
`
`designated “48” of the Complaint.
`
`
`
`14. Denies paragraphs designated “49”, “50”, “51”, “52”, “54” and “55” of the Complaint
`
`as to defendant, A&T ENGINEERING, P.C., but denies any knowledge or information sufficient
`
`to form a belief as to the remaining allegations.
`
`
`
`15. Denies any knowledge or information sufficient to form a belief as to paragraph
`
`designated “53” of the Complaint and refers all questions of law to the Honorable Court at the
`
`time of trial.
`
`AS AND FOR A FIRST AFFIRMATIVE DEFENSE
`
`
`
`16. The Complaint fails to state a claim upon which relief can be granted against
`
`Defendant.
`
`
`
`
`2 of 6
`
`

`

`FILED: NEW YORK COUNTY CLERK 03/02/2021 11:11 AM
`FILED: NEW YORK COUNTY CLERK 01/14/2021 12:59 PM
`NYSCEF DOC. NO. 14
`NYSCEF DOC. NO. 5
`
`INDEX NO. 159080/2020
`INDEX NO. 159080/2020
`
`RECEIVED NYSCEF: 03/02/2021
`RECEIVED NYSCEF: 01/14/2021
`
`
`
`
`
`AS AND FOR A SECOND AFFIRMATIVE DEFENSE
`
`17. All damages allegedly sustained by the Plaintiffs as alleged in the Complaint were
`
`caused in whole or in part by the culpable conduct, negligence or lack of care on the part of the
`
`Plaintiffs and, as such, all claims asserted by the Plaintiffs should be dismissed.
`
`
`
`
`
`AS AND FOR A THIRD AFFIRMATIVE DEFENSE
`
`18. The damages alleged in the Complaint are due in whole or in part to the culpable
`
`conduct of parties other than Defendant or over whom Defendant exercised no control or
`
`supervision.
`
`AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
`
`
`
`19. The liability of Defendant, if any, to the Plaintiffs, is limited to its equitable share to
`
`be determined in accordance with the relative culpability of all parties contributing to the losses
`
`sustained.
`
`AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
`
`
`
`20. The Plaintiffs are not entitled to recover by reason of their failure to take reasonable
`
`steps to mitigate their damages, if any.
`
`AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
`
`21. Defendant is not a proper party to this action.
`
`AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
`
`22. Plaintiffs’ claims must be dismissed by the applicable Statute of Limitations, and/or
`
`
`
`
`
`
`
`the doctrines of avoidable consequences, waiver, estoppel and/or laches.
`
`
`
`
`
`AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
`
`23.
`
`If Defendant is found liable, such liability is less than or equal to 50% of the total
`
`liability of all persons who may be found liable and, therefore, Defendant’s liability shall be
`
`limited to its equitable share, pursuant to CPLR Article 16.
`
`3 of 6
`
`

`

`FILED: NEW YORK COUNTY CLERK 03/02/2021 11:11 AM
`FILED: NEW YORK COUNTY CLERK 01/14/2021 12:59 PM
`NYSCEF DOC. NO. 14
`NYSCEF DOC. NO. 5
`
`INDEX NO. 159080/2020
`INDEX NO. 159080/2020
`
`RECEIVED NYSCEF: 03/02/2021
`RECEIVED NYSCEF: 01/14/2021
`
`AS AND FOR A NINTH AFFIRMATIVE DEFENSE
`
`
`
`24. There exists no proximate causation between any alleged acts or breach of duty by
`
`Defendant and Plaintiffs’ alleged damages herein.
`
`AS AND FOR A TENTH AFFIRMATIVE DEFENSE
`
`25.
`
`If Defendant is found liable to any degree, liability is several.
`
`AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE
`
`26. That upon information and belief, Plaintiffs’ damages, if any, were caused by the
`
`
`
`
`
`intervening acts of third parties unrelated to Defendant.
`
`
`
`
`
`AS AND FOR AN TWELFTH AFFIRMATIVE DEFENSE
`
`27. That in the event any person or entity liable or claimed to be liable for the damages
`
`alleged in this action has been given or may hereafter be given a release or covenant not to sue,
`
`Defendant will be entitled to protection under General Obligations Law §§15-108, and the
`
`corresponding reduction of any damages which may be determined to be due against the
`
`answering Defendant.
`
`AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
`
`28. The action should be dismissed for failure to join necessary and indispensable parties.
`
`AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
`
`29.
`
`In the event Plaintiff recovers a verdict or judgment against Defendant, then said
`
`
`
`
`
`
`
`verdict or judgment must be reduced pursuant to CPLR 4545(c) by those amounts which have
`
`been, or will, with reasonable certainty, replace or indemnify Plaintiffs, in whole or in part, for
`
`any past or future claimed economic loss, from any collateral source.
`
`
`
`
`
`AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
`
`30. All work performed by Defendant was in accordance with the applicable custom and
`
`standard in the industry at all relevant times.
`
`
`
`
`
`4 of 6
`
`

`

`FILED: NEW YORK COUNTY CLERK 03/02/2021 11:11 AM
`FILED: NEW YORK COUNTY CLERK 01/14/2021 12:59 PM
`NYSCEF DOC. NO. 14
`NYSCEF DOC. NO. 5
`
`INDEX NO. 159080/2020
`INDEX NO. 159080/2020
`
`RECEIVED NYSCEF: 03/02/2021
`RECEIVED NYSCEF: 01/14/2021
`
`AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
`
`
`
`31. Defendant reserves the right to assert other and further affirmative defenses after
`
`discovery.
`
`
`
`
`
`AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE AND FIRST CROSS-
`CLAIM AGAINST DEFENDANTS, 308-310 REALTY LLC and C&J CONSTRUCTION
`AND PAINTING LLC,TO WHICH AN ANSWER IS DEMANDED
`
`32. The Plaintiffs sustained damages at the time and place as alleged in the Complaint by
`
`reason other than the Plaintiffs’ careless, reckless, negligent and/or acts of omission or
`
`commission, and if it is found that Defendant is liable to any party to this or any underlying
`
`action, all of which is specifically denied, then Defendant is entitled to contractual and common
`
`law indemnification from the aforementioned parties based upon the careless, reckless, negligent,
`
`acts of omission or commission and/or breach of contract and/or breach of statute and/or gross
`
`negligence of the said parties.
`
`
`
`
`
`AS AND FOR A EIGHTEENTH AFFIRMATIVE DEFENSE AND SECOND CROSS-
`CLAIM DEFENDANTS, 308-310 REALTY LLC and C&J CONSTRUCTION AND
`PAINTING LLC, TO WHICH AN ANSWER IS DEMANDED
`
`33.
`
`If it is found that Defendant is liable to any parties herein, all of which is specifically
`
`denied, then by reason of the foregoing, the aforementioned parties shall be liable to Defendant
`
`for contribution and indemnification on the basis of apportionment of responsibility for the
`
`alleged occurrence, and to pay for all or a part of any verdict or judgment against Defendant.
`
`
`
`
`WHEREFORE, it is prayed that the Complaint and any and all other claims asserted
`
`against defendant, A&T ENGINEERING, P.C., be dismissed with costs, interest and
`
`Yours etc.,
`
`
`
`
`
`
`
`
`
`/s/ Daniel Folchetti
`By: Daniel Folchetti
`LAW OFFICES OF TROMELLO & FISHMAN
`Attorney for Defendant(s)
`A&T ENGINEERING, P.C.
`U.S. MAIL: P.O. Box 94743
`
`disbursements, along with such other and further relief as this Court deems just and proper.
`
`DATED: Tarrytown, New York
`
`
`January 14, 2021
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`5 of 6
`
`

`

`FILED: NEW YORK COUNTY CLERK 03/02/2021 11:11 AM
`FILED: NEW YORK COUNTY CLERK 01/14/2021 12:59 PM
`NYSCEF DOC. NO. 14
`NYSCEF DOC. NO. 5
`
`INDEX NO. 159080/2020
`INDEX NO. 159080/2020
`
`RECEIVED NYSCEF: 03/02/2021
`RECEIVED NYSCEF: 01/14/2021
`
`Chicago, IL 60690-4743
`Law Firm Email:
`TheLawOfficesofLoriFishman@cna.com
`120 White Plains Road, Suite 220
`Tarrytown, NY 10591
`914-524-5600
`File # 1202218655
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`TO: D'ARCY JOHNSON DAY, P.C.
`
`Attorneys for Plaintiff
`
`1501 Broadway, 12th Floor
`
`New York, NY 10036
`
`212-799-1470
`
`Attn. Peter W. Smith, Esq.
`
`Via E-mail: Psmith@djdlawyers.com
`
`
`
`
`
`
`
`
`6 of 6
`
`

`

`FILED: NEW YORK COUNTY CLERK 03/02/2021 11:11 AM
`FILED: NEW YORK COUNTY CLERK 03/01/2021 03:46 PM
`NYSCEF DOC. NO. 14
`NYSCEF DOC. NO. 8
`
`INDEX NO. 159080/2020
`INDEX NO. 159080/2020
`
`RECEIVED NYSCEF: 03/02/2021
`RECEIVED NYSCEF: 03/01/2021
`
`SUPREME
`
`COURT
`
`OF THE STATE
`
`OF NEW YORK
`
`COUNTY
`
`OF NEW YORK
`
`WESCO INSURANCE
`
`46 LLC and
`
`312 East
`
`COMPANY,
`106d'
`
`Street,
`
`LLC,
`
`as subrogee
`
`of Eastside
`
`Plaintiff,
`
`-against.
`
`308-310
`
`REALTY
`
`PAINTING
`
`LLC;
`
`C&J CONSTRUCTION
`
`LLC;
`and A&T ENGINEERING
`
`P.C.,
`
`AND
`
`Defendants.
`
`X
`
`X
`
`Index
`
`No.:
`
`159080/2020
`
`ANSWER
`
`TO
`
`COMPLAINT
`
`The
`
`defendants,
`
`308-310
`
`REALTY,
`
`LLC
`
`i/s/h/a
`
`308-310
`
`REALTY
`
`LLC
`
`and
`
`C&J
`
`AND
`
`their
`
`HANNUM
`
`FERETIC
`
`CONSTRUCTION
`
`PAINTING
`
`LLC,
`
`by
`
`attorneys,
`
`PRENDERGAST
`
`& MERLINO,
`
`LLC,
`
`answering
`
`the Complaint
`
`herein:
`
`PARTIES
`
`1.
`
`Deny
`
`knowledge
`
`and
`
`information
`
`sufficient
`
`to
`
`form
`
`a belief
`
`thereof
`
`as
`
`to
`
`the
`
`allegations
`
`contained
`
`in paragraphs
`
`numbered
`
`"6"
`
`"7"
`
`and
`
`"l",
`
`of
`
`the Complaint.
`
`2.
`
`Deny
`
`each
`
`and
`
`every
`
`allegation
`
`contained
`
`in
`
`paragraph
`
`numbered
`
`"2"
`
`of
`
`the
`
`that308-310
`
`is a domestic
`
`limited
`
`Complaint
`
`in the form
`
`alleged;
`
`however,
`
`admit
`
`REALTY,
`
`LLC
`
`liability
`
`company
`
`organized
`
`and
`
`existing
`
`by
`
`virtue
`
`of
`
`the
`
`laws
`
`of
`
`the State
`
`of New
`
`York;
`
`and
`
`maintains
`
`a principal
`
`place
`
`of business
`
`at 35-37
`
`86d'
`
`Street,
`
`Jackson
`
`Heights,
`
`New York
`
`11372.
`
`3.
`
`Deny
`
`each
`
`and
`
`every
`
`allegation
`
`contained
`
`in
`
`paragraph
`
`numbered
`
`"3"
`
`of
`
`the
`
`Complaint
`
`in the
`
`form
`
`alleged.
`
`"4"
`
`4.
`
`Deny
`
`each
`
`and
`
`every
`
`allegation
`
`contained
`
`in
`
`paragraph
`
`numbered
`
`of
`
`the
`
`Complaint
`
`in the
`
`form
`
`alleged;
`
`however,
`
`admit
`
`that C&J
`
`CONSTRUCTION
`
`AND PAINTING
`
`LLC
`
`is a domestic
`
`limited
`
`liability
`
`company
`
`organized
`
`and
`
`existing
`
`by
`
`virtue
`
`of
`
`the
`
`laws
`
`of
`
`the
`
`State
`
`of New York;
`
`and maintains
`
`a principal
`
`place
`
`of
`
`business
`
`at 4419
`
`3rd
`
`Avenue,
`
`4B,
`
`Bronx,
`
`New York
`
`10457.
`
`1 of 13
`
`

`

`FILED: NEW YORK COUNTY CLERK 03/02/2021 11:11 AM
`FILED: NEW YORK COUNTY CLERK 03/01/2021 03:46 PM
`NYSCEF DOC. NO. 14
`NYSCEF DOC. NO. 8
`
`INDEX NO. 159080/2020
`INDEX NO. 159080/2020
`
`RECEIVED NYSCEF: 03/02/2021
`RECEIVED NYSCEF: 03/01/2021
`
`FACTUAL
`
`ALLEGATIONS
`
`COMMON
`
`TO ALL
`
`COUNTS
`
`5.
`
`Deny
`
`knowledge
`
`and
`
`information
`
`sufficient
`
`to
`
`form
`
`a belief
`
`thereof
`
`as
`
`to
`
`the
`
`allegations
`
`contained
`
`in paragraphs
`
`ñümbered
`
`"8",
`
`"9",
`
`"10",
`
`"11",
`
`"17",
`
`"18",
`
`"27",
`
`"28",
`
`"30"
`
`"33"
`
`and
`
`of
`
`the Complaint.
`
`6.
`
`Deny
`
`each
`
`and
`
`every
`
`allegation
`
`contained
`
`in
`
`paragraph
`
`numbered
`
`"12"
`
`of
`
`the
`
`Complaint
`
`in
`
`the
`
`form
`
`alleged;
`
`however,
`
`admit
`
`that
`
`the
`
`real
`
`property
`
`known
`
`as 312
`
`East
`
`106d'
`
`its western
`
`with
`
`Street,
`
`New York,
`
`New York
`
`has
`
`a common
`
`property
`
`line
`
`on
`
`border
`
`the
`
`real
`
`property
`
`known
`
`as 310 East
`
`106d'
`
`Street,
`
`New York,
`
`New York.
`
`7.
`
`Deny
`
`each
`
`and
`
`every
`
`allegation
`
`contained
`
`in paragraphs
`
`numbered
`
`"13"
`
`"15"
`
`and
`
`of
`
`the Complaint
`
`in the
`
`form
`
`alleged.
`
`8.
`
`Deny
`
`each
`
`and
`
`every
`
`allegation
`
`contained
`
`in
`
`paragraph
`
`numbered
`
`"14"
`
`of
`
`the
`
`Complaint
`
`in
`
`the
`
`form
`
`alleged;
`
`however,
`
`admit
`
`that
`
`308-310
`
`REALTY,
`
`LLC
`
`owns
`
`the
`
`real
`
`106d'
`
`Street
`
`and
`
`310 East
`
`106d'
`
`New York.
`
`properties
`
`known
`
`as 308 East
`
`Street,
`
`New York,
`
`9.
`
`Deny
`
`each
`
`and
`
`every
`
`allegation
`
`contained
`
`in
`
`paragraphs
`
`numbered
`
`"16",
`
`"24",
`
`"25",
`
`"26",
`
`"29",
`
`"31",
`
`"32",
`
`"34"
`
`"35"
`
`and
`
`of
`
`the Complaint.
`
`10.
`
`Deny
`
`knowledge
`
`and
`
`information
`
`sufficient
`
`to
`
`form
`
`a belief
`
`thereof
`
`as
`
`to
`
`the
`
`allegations
`
`contained
`
`in
`
`paragraphs
`
`numbered
`
`"17",
`
`"18",
`
`"27",
`
`"28",
`
`"30"
`
`"33"
`
`and
`
`of
`
`the
`
`Complaint.
`
`1 l.
`
`Deny
`
`all
`
`allegations
`
`as
`
`they
`
`pertain
`
`to
`
`defendants,
`
`308-310
`
`REALTY,
`
`LLC
`
`CONSTRUCTION
`
`I/S/H/A
`
`308-310
`
`REALTY
`
`LLC
`
`and
`
`C&J
`
`AND
`
`PAINTING
`
`LLC,
`
`contained
`
`in paragraphs
`
`numbered
`
`"19",
`
`"36"
`
`"38"
`
`and
`
`of
`
`the Complaint.
`
`12.
`
`Deny
`
`each
`
`and
`
`every
`
`allegation
`
`contained
`
`in paragraphs
`
`ñümbered
`
`"20",
`
`"21"
`
`and
`
`"22"
`
`of
`
`the Complaint
`
`and
`
`respectfully
`
`refer
`
`all
`
`questions
`
`of
`
`law to the Honorable
`
`Court.
`
`13.
`
`Deny
`
`each
`
`and
`
`every
`
`allegation
`
`contained
`
`in
`
`paragraph
`
`numbered
`
`"23"
`
`of
`
`the
`
`Complaint
`
`in the
`
`form
`
`alleged
`
`and
`
`respectfully
`
`refer
`
`all
`
`questions
`
`of
`
`law to the Honorable
`
`Court.
`
`2 of 13
`
`

`

`FILED: NEW YORK COUNTY CLERK 03/02/2021 11:11 AM
`FILED: NEW YORK COUNTY CLERK 03/01/2021 03:46 PM
`NYSCEF DOC. NO. 14
`NYSCEF DOC. NO. 8
`
`INDEX NO. 159080/2020
`INDEX NO. 159080/2020
`
`RECEIVED NYSCEF: 03/02/2021
`RECEIVED NYSCEF: 03/01/2021
`
`14.
`
`Deny
`
`all
`
`allegations
`
`as
`
`they
`
`pertain
`
`to
`
`defendants,
`
`308-310
`
`REALTY,
`
`I/S/H/A
`
`308-310
`
`REALTY
`
`LLC
`
`and
`
`C&J
`
`CONSTRUCTION
`
`AND PAINTING
`
`LLC
`
`LLC,
`
`contained
`
`in paragraph
`
`numbered
`
`"37"
`
`of
`
`the Complaint
`
`and respectfully
`
`refer
`
`all questions
`
`of
`
`law
`
`to the Honorable
`
`Court.
`
`AS AND FOR A FIRST
`
`CAUSE
`
`OF ACTION
`
`LN_egligence
`
`Against
`
`All
`
`Defendants)
`
`15.
`
`As
`
`to paragraph
`
`numbered
`
`"39"
`
`of
`
`the Complaint,
`
`Answering
`
`Defendants
`
`repeat,
`
`each
`
`made
`
`to
`
`paragraphs
`
`numbered
`
`"1"
`
`reiterate
`
`and
`
`reallege
`
`and
`
`every
`
`answer
`
`with
`
`respect
`
`through
`
`"38"
`
`with
`
`the
`
`same
`
`force
`
`and
`
`effect
`
`as if more
`
`fully
`
`set
`
`forth
`
`at
`
`length
`
`herein.
`
`16.
`
`Deny
`
`all
`
`allegations
`
`as
`
`they
`
`pertain
`
`to
`
`defendants,
`
`308-310
`
`REALTY,
`
`I/S/H/A
`
`308-310
`
`REALTY
`
`LLC
`
`and
`
`C&J
`
`CONSTRUCTION
`
`AND PAINTING
`
`LLC
`
`LLC,
`
`contained
`
`in paragraphs
`
`numbered
`
`"40",
`
`"41"
`
`"45"
`
`and
`
`of
`
`the Complaint
`
`and respectfully
`
`refer
`
`all
`
`of
`
`law to the Honorable
`
`Court.
`
`questions
`
`Complaint.
`
`17.
`
`Deny
`
`each
`
`and
`
`every
`
`allegation
`
`contained
`
`in
`
`paragraph
`
`numbered
`
`"42"
`
`of
`
`the
`
`18.
`
`Deny
`
`a