FILED: NEW YORK COUNTY CLERK 04/20/ :42 AM INDEX NO /2016 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/20/2018

Transcription

1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X Index No.: /2016 MADONNA RAMP, Plaintiff, THIRD-PARTY SUMMONS HYATT CORPORATION, and HYATT EQUITIES, LLC, Defendants X Third-Party Index No.: HYATT CORPORATION, and HYATT EQUITIES, LLC, Third-Party Plaintiffs, -against- -against- BAYER CROPSCIENCE LP, and MCLAUGHLIN GORMLEY KING COMPANY, X Third-Party Defendants. TO THE ABOVE-NAMED IMPLEADED THIRD-PARTY DEFENDANTS: YOU ARE HEREBY SUMMONED to answer the verified third-party complaint of the defendants/third-party plaintiffs, a copy of which is hereby served upon you. You are summoned to serve a copy of your answer upon the undersigned attorneys for the defendants/third-party plaintiffs, and upon counsel for the plaintiff, within twenty (20) days, [thirty (30) days if not personally served upon you within the State of New York], after the service of this summons and verified third-party complaint, exclusive of the day of service. In case of your failure to answer the verified third-party complaint of the 3 LEGAL/! t SS37766.v! 1 of 17

2 defendants/third-party plaintiffs, judgment will be taken against you by default for the relief demanded in the third-party complaint. Dated: Rye Brook, New York April 20, 2018 MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN By: James P. onnors, Esq. Attorne s for Defendants/Third-Party Plaintiffs HY CORPORATION and HYATT EQUITIES, L.L.C. 800 Westchester Avenue, Suite C-700 Rye Brook, New York (914) File No.: To: Via New York Secretary o f State Bayer Cropscience LP Third-Party Defendant McLaughlin Gormley King Company Third-Party Defendant th Ave N Minneapolis, MN LEGAl./1 l vl 2 of 17

3 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X Index No.: /2016 MADONNA RAMP, -against- Plaintiff, VERIFIED COMPLAINT THIRD-PARTY HYATT CORPORATION and HYATT EQUITIES, LLC, Defendants X â â â â â - â â â â â â â â â â â â â â â â â Third-Party Index No.: HYATT CORPORATION and HYATT EQUITIES, LLC, Third-Party Plaintiffs, -against- BAYER CROPSCIENCE LP, and MCLAUGHLIN GORMLEY KING COMPANY, Third-Party X Defendants. Defendants/Third-Party Plaintiffs, HYATT CORPORATION and HYATT EQUITIES, LLC, by their attorney, MARSHALL DENNEHEY WARNER COLEMAN 4 GOGGIN, P.C., as and for a Third-Party Complaint, alleged upon information and belief: FACTS l. That at all times hereinafter mentioned, defendants/third-party plaintiffs, HYATT CORPORATION is and was a foreign business corporation licensed to do business in the State of New York. 2. That at all times hereinafter mentioned, HYATT EQUITIES, LLC, is and was a foreign limited liability company licensed to do business in the State of New York. 3. That at all times hereinafter mentioned, third-party defendant, BAYER CROPSCIENCE (" BAYER" LP ("BAYER"), is a business corporation organized and existing under and by virtue of the laws of the State of New York. 5 LEGAL/! v1 3 of 17

4 4. That at all times hereinafter mentioned, third-party defendant BAYER is a domestic corporation duly licensed and authorized to do business in the State of New York. 5. That at all times hereinafter mentioned, third-party defendant BAYER is a foreign corporation duly licensed and authorized to do business in the State of New York. 6. That at all times hereinafter mentioned, third-party defendant BAYER was and is a foreign corporation actually doing business within the State of New York. 7. That at all times hereinafter mentioned, third-party defendant BAYER was and still is a corporation transacting business within the State of New York and/or contracting to supply goods within the State of New York. 8. That at all times hereinafter mentioned, third-party defendant BAYER is a limited liability company duly licensed and authorized to do business in the State of New York. 9. At all times hereinafter mentioned, third-party defendant BAYER is a limited liability company actually doing business within the State of New York. 10. At all times hereinafter mentioned, third-party defendant BAYER is a limited liability company transacting business within the State of New York and/or contracting to supply goods within the State of New York. 11. At all times hereinafter mentioned, third-party defendant BAYER regularly did business and still does business and/or engages in a persistent course of conduct, arises substantial revenue from goods used or services rendered in the State of New York. 12. That at all times hereinafter mentioned, third-party defendants MCLAUGHLIN GORMLEY KING COMPANY ("MGK"), is a business corporation organized and existing under and by virtue of the laws of the State of New York. 13. That at all times hereinafter mentioned, third-party defendant MGK is a domestic corporation duly licensed and authorized to do business in the State of New York. 6 LEGAUI I v I 4 of 17

5 14. That at all times hereinafter mentioned, third-party defendant MGK is a foreign corporation duly licensed and authorized to do business in the State of New York. 15. That at all times hereinafter mentioned, third-party defendant MGK was and is a foreign corporation actually doing business within the State of New York. 16. That at all times hereinafter mentioned, third-party defendant MGK was and still is a corporation transacting business within the State of New York and/or contracting to supply goods within the State of New York. 17. That at all times hereinafter mentioned, third-party defendant MGK is a limited liability company duly licensed and authorized to do business in the State of New York. 18. At all times hereinafter mentioned, third-party defendant MGK is a limited liability company actually doing business within the State of New York. 19. At all times hereinafter mentioned, third-party defendant MGK is a limited liability company transacting business within the State of New York and/or contracting to supply goods within the State of New York. 20. At all times hereinafter mentioned, third-party defendant MGK regularly did business and still does business and/or engages in a persistent course of conduct, arises substantial revenue from goods used or services rendered in the State of New York. 21. On or about September 29, 2016, plaintiff MADONNA RAMP, commenced an action against defendants/third-party plaintiffs HYATT CORPORATION and HYATT EQUITIES, LLC in the Supreme Court, County of New York under Index Number /2016. Without admitting the truth of the allegations contained therein, a copy of the Summons and Verified Complaint is annexed hereto, and made a part hereof as Exhibit "A." A copy of defendants/third-party plaintiffs Answer to the Complaint dated November 9, 2016 is annexed hereto as Exhibit "B" and is made a part hereof. 22. On October 18, 2013, plaintiff entered into an agreement with Pest Management, Inc. to spray chemicals in her residence in order to rid the property of bed bugs she alleges entered her suitcase 7 LEGAL/ v1 5 of 17

6 while a guest at the Grand Hyatt Hotel in New York City. A copy of said contract is annexed hereto as Exhibit "C." 23. Thereafter, plaintiff alleges she developed Mast Cell Activation Syndrome ("MCAS") which she alleges is an immunological condition with cardiovascular, dermatological, gastrointestinal, neurological and respiratory symptoms. Plaintiff further claims that as a result of her contracting MCAS, her body developed a severe allergic reaction to items which she had not previously been allergic to. 24. Upon information and belief, three insecticides were used in the treatment of plaintiffs residence as follows: a. Deltadust Insecticide manufactured by Bayer Environmental Science 2 T.W. Alexander Drive Research Triangle Park, NC b. Temprid S.C. Insecticide is manufactured by Bayer Environmental Science 2 T.W. Alexander Drive Research Triangle Park, NC c. Bedlam Insecticide is manufactured by McLaughlin Gormley King Company 8810 Tenth Avenue North Minneapolis, MN One or more of the insecticides used by Pest Management, Inc. were designed, manufactured, inspected, tested, stored, distributed, sold and placed into the stream of commerce by thirdparty defendant BAYER. Any damages alleged by plaintiff were caused by the negligent design, manufacture, inspection, testing, storage, distribution and sale of the products by third-party defendant BAYER. 26. One or more of the insecticides used by Pest Management, Inc. were designed, manufactured, inspected, tested, stored, distributed, sold and placed into the stream of commerce by thirdparty defendant MGK. Any damages alleged by plaintiff were caused by the negligent design, manufacture, inspection, testing, storage, distribution and sale of the products by third-party defendant MGK. 8 LEGAL/! vl 6 of 17

7 AS AND FOR A FIRST CAUSE OF ACTION AGAINST THIRD-PARTY DEFENDANT BAYER (Negligence) 27. Defendants/third-party plaintiffs HYATT CORPORATION and HYATT EQUITIES, LLC repeat, reiterate and reallege each and every allegation contained in paragraphs 1 through 26 with the same force and effect as if set forth at length herein. 28. Third-Party Defendant BAYER designed, tested, manufactured, sold, distributed and/or promoted the sale of insecticides, called Deltadust Insecticide and Temprid S.C. Insecticide (hereinafter "BAYER insecticides"), which were then sold to those involved in the placement of such chemicals as part of their pest management business. 29. Third-Party Defendant BAYER designed, tested, manufactured, sold, distributed and/or promoted the sale of insecticides, called Deltadust Insecticide and Temprid S.C. Insecticide BAYER insecticides, which were then sold to the general public. 30. Plaintiff, MADONNA RAMP'S home and vehicle were treated with chemicals sold by BAYER to Pest Management, Inc. 31. Third-party defendant BAYER manufactured and sold the insecticides knowing they were to be used to in people's homes and vehicles to exterminate bed bugs. 32. Third-party defendant BAYER knew the intent and purpose of their insecticides was to be used to eradicate bed bugs, and warranted that their insecticides were fit and proper for that particular purpose and the intended use. 33. That at all relevant times, third-party defendant BAYER their agents, servants, employees and/or contractees, warranted that the aforementioned insecticides were reasonably fit for the ordinary purpose for which they were intended and/or for a reasonably foreseeable purpose. 34. After the aforementioned BAYER insecticides were used in plaintiff, MADONNA RAMP'S, home and vehicle, she allegedly sustained personal injuries. 9 LEGAL/ v1 7 of 17

8 35. That if it is found that plaintiff, MADONNA RAMP, suffered injuries as a result of the use of insecticides manufactured by the third-party defendant, BAYER, then it is alleged that they breached their duty because they were careless, reckless and negligent in the design, testing, inspection, manufacture, distribution, labeling, sale, marketing and promotion of their insecticides. 36. That if it is found that plaintiff, MADONNA RAMP, suffered injuries as a result of the use of insecticides manufactured by the third-party defendant, BAYER, then it is alleged that her alleged injuries were caused by BAYER'S failure to warn, failure to properly design Deltadust Insecticide and Temprid S.C. Insecticide, failure to properly manufacture Deltadust Insecticide and Temprid S.C. Insecticide, failure to properly distribute Deltadust Insecticide and Temprid S.C. Insecticide, failure to properly test Deltadust Insecticide and Temprid S.C. Insecticide, failure to properly interpret the results of testing of Deltadust Insecticide and Temprid S.C. Insecticide, failure to properly inspect Deltadust Insecticide and Temprid S.C. Insecticide, and failure to employ qualified personnel to properly test and inspect Deltadust Insecticide and Temprid S.C. Insecticide. 37. That if it is found that the plaintiff, MADONNA RAMP, suffered injuries as a result of the use of insecticides manufactured by the third-party defendant, BAYER, then it is alleged that the third-party defendant BAYER'S negligence was the sole and proximate cause of plaintiff, MADONNA RAMP'S injuries and damages. 38. That if it is found that the plaintiff, MADONNA RAMP, suffered injuries as a result of the use of insecticides manufactured by the third-party defendant, BAYER, then it is alleged that solely by reason of third-party defendant BAYER, its agents, servants and employees' negligence, plaintiff brought suit against defendants/third-party plaintiffs HYATT CORPORATION and HYATT EQUITIES, LLC. 10 LEGAL/ v 1 8 of 17

9 AS AND FOR A SECOND CAUSE OF ACTION AGAINST THIRD-PARTY DEFENDANT MGK (Negligence) 39. Defendants/third-party plaintiffs HYATT CORPORATION and HYATT EQUITIES, LLC repeat, reiterate and reallege each and every allegation contained in paragraphs 1 through 38 with the same force and effect as if set forth at length herein. 40. Third-Party Defendant MGK designed, tested, manufactured, sold, distributed and/or promoted the sale of insecticides, called Bedlam Insecticide (hereinafter "MGK insecticides"), which were then sold to those involved in the placement of such chemicals as part of their pest management business. 41. Third-Party Defendant MGK designed, tested, manufactured, sold, distributed and/or promoted the sale of insecticides, called Bedlam Insecticide, which was then sold to the general public. 42. Plaintiff, MADONNA RAMP'S home and vehicle were treated with chemicals sold by MGK to Pest Management, Inc. 43. Third-party defendant MGK manufactured and sold the insecticides knowing they were to be used to in people's homes and vehicles to exterminate bed bugs. 44. Third-party defendant MGK knew the intent and purpose of their insecticides was to be used to eradicate bed bugs, and warranted that their insecticides were fit and proper for that particular purpose and the intended use. 45. That at all relevant times, third-party defendant MGK their agents, servants, employees and/or contractees, warranted that the aforementioned insecticides were reasonably fit for the ordinary purpose for which they were intended and/or for a reasonably foreseeable purpose. 46. After the aforementioned MGK insecticides were used in plaintiff, MADONNA RAMP'S, home and vehicle, she allegedly sustained personal injuries. 47. That if it is found that plaintiff, MADONNA RAMP, suffered injuries as a result of the use of insecticides manufactured by the third-party defendant, MGK, then it is alleged that they breached 11 LEGAL/t l vt 9 of 17

10 their duty because they were careless, reckless and negligent in the design, testing, inspection, manufacture, distribution, labeling, sale, marketing and promotion of their insecticides. 48. That if it is found that plaintiff, MADONNA RAMP, suffered injuries as a result of the use of insecticides manufactured by third-party defendant, MGK, then it is alleged that plaintiff, MADONNA RAMP'S alleged injuries were caused by MGK'S failure to warn, failure to properly design Bedlam Insecticide, failure to properly manufacture Bedlam Insecticide, failure to properly distribute Bedlam Insecticide, failure to properly test Bedlam Insecticide, failure to properly interpret the results of testing of Bedlam Insecticide, failure to properly inspect Bedlam Insecticide, and failure to employ qualified personnel to properly test and inspect Bedlam Insecticide. 49. That if it is found that plaintiff, MADONNA RAMP, suffered injuries as a result of the use of insecticides manufactured by the third-party defendant, MGK, then it is alleged that the third-party defendant, MGK'S negligence was the sole and proximate cause of plaintiff, MADONNA RAMP'S injuries and damages. 50. That if it found that the plaintiff, MADONNA RAMP, suffered injuries as a result of tfhe use of insecticides manufactured by the third-party defendant, MGK, then it is alleged that solely by reason of third-party defendant MGK, its agents, servants and employees' negligence, plaintiff brought suit against defendants/third-party plaintiffs HYATT CORPORATION and HYATT EQUITIES, LLC. AS AND FOR A THIRD CAUSE OF ACTION AGAINST THIRD-PARTY DEFENDANT BAYER (Breach of Warranty) 51. Defendants/third-party plaintiffs HYATT CORPORATION and HYATT EQUITIES, LLC repeat, reiterate and reallege each and every allegation contained in paragraphs 1 through 50 with the same force and effect as if set forth at length herein. 52. Plaintiff, MADONNA RAMP, relied upon BAYER'S express and implied warranties that their pesticides were safe, free from hazards, and fit for their intended and particular purpose. 12 LEGAL/! vl 10 of 17

11 53. These warranties were made in order to induce plaintiff, MADONNA RAMP, to purchase and use their insecticides in their homes and plaintiff relied on those warranties to her detriment. 54. That if it is found that plaintiff, MADONNA RAMP, suffered injuries as a result of the use of insecticides manufactured by the third-party defendant, BAYER, then it is alleged that the BAYER insecticides were defective, hazardous, and caused plaintiff to sustain personal injuries, including developing MCAS. 55. That if it is found that plaintiff, MADONNA RAMP, suffered injuries as a result of the use of insecticides manufactured by the third-party defendant, BAYER, then it is alleged that solely by reason of third-party defendant BAYER its agents, servants and employees' breached warranties, plaintiff brought suit against defendants/third-party plaintiffs HYATT CORPORATION and HYATT EQUITIES, LLC. AS AND FOR A FOURTH CAUSE OF ACTION AGAINST THIRD-PARTY DEFENDANT MGK (Breach of Warranty) 56. Defendants/third-party plaintiffs HYATT CORPORATION and HYATT EQUITIES, LLC repeat, reiterate and reallege each and every allegation contained in paragraphs 1 through 55 with the same force and effect as if set forth at length herein. 57. Plaintiff, MADONNA RAMP, relied upon MGK'S express and implied warranties that their pesticides were safe, free from hazards, and fit for their intended and particular purpose. 58. These warranties were made in order to induce plaintiff, MADONNA RAMP, to purchase and use their insecticides in their homes and plaintiff relied on those warranties to her detriment. 59. That if it is found that plaintiff, MADONNA RAMP, suffered injuries as a result of the use of insecticides manufactured by the third-party defendant, MGK, then it is alleged that the MGK insecticides were defective, hazardous, and caused plaintiff to sustain personal injuries, including developing MCAS. 13 LEGAL/ v1 11 of 17

12 60. That if it is found that plaintiff, MADONNA RAMP, suffered injuries as a result of the use of insecticides manufactured by the third-party defendant, MGK, then it is alleged that solely by reason of third-party defendant MGK, its agents, servants and employees' breached warranties, plaintiff brought suit against defendants/third-party plaintiffs HYATT CORPORATION and HYATT EQUITIES, LLC. AS AND FOR A FIFTH CAUSE OF ACTION AGAINST THIRD-PARTY DEFENDANT BAYER (Strict Liability) 61. Defendants/third-party plaintiffs HYATT CORPORATION and HYATT EQUITIES, LLC repeat, reiterate and reallege each and every allegation contained in paragraphs 1 through 60 with the same force and effect as if set forth at length herein. 62. That if it is found that plaintiff, MADONNA RAMP, suffered injuries as a result of the use of insecticides manufactured by the third-party defendant, BAYER, then it is alleged that the thirdparty defendant, BAYER, is strictly liable in tort because the defect in their insecticides caused plaintiff to sustain the injuries and damages alleged in her complaint; the insecticides were being used for the purpose for which they were intended; plaintiff could not be the exercise of reasonable care have discovered the defect, hazards or dangers of the insecticides; and by exercise of reasonable care, plaintiff could not have prevented the damages the defective insecticides caused her. AS AND FOR A SIXTH CAUSE OF ACTION AGAINST THIRD-PARTY DEFENDANT MGK (Strict Liability) 63. Defendants/third-party plaintiffs HYATT CORPORATION and HYATT EQUITIES, LLC repeat, reiterate and reallege each and every allegation contained in paragraphs 1 through 62 with the same force and effect as if set forth at length herein. 64. That if it is found that plaintiff, MADONNA RAMP, suffered injuries as a result of the use of insecticides manufactured by the third-party defendant, MGK, then it is alleged that the third-party 14 LEGAL/ v 1 12 of 17

13 defendant, MGK, is strictly liable in tort because the defect in their insecticides caused plaintiff to sustain the injuries and damages alleged in her complaint; the insecticides were being used for the purpose for which they were intended; plaintiff could not be the exercise of reasonable care have discovered the defect, hazards or dangers of the insecticides; and by exercise of reasonable care, plaintiff could not have prevented the damages the defective insecticides caused her. AS AND FOR A SEVENTH CAUSE OF ACTION AGAINST THIRD-PARTY DEFENDANT BAYER (Indemnification and Contribution) 65. Defendants/third-party plaintiffs HYATT CORPORATION and HYATT EQUITIES, LLC repeat, reiterate and reallege each and every allegation contained in paragraphs 1 through 64 with the same force and effect as if set forth at length herein. 66. That although defendants/third-party plaintiffs HYATT CORPORATION and HYATT EQUITIES have denied the allegations of wrongdoing plaintiff asserts against them in plaintiffs Verified Complaint, should said defendants/third-party plaintiffs, HYATT CORPORATION and HYATT EQUITIES be found to be liable to plaintiff, MADONNA RAMP, then such liability shall derive from the active and affirmative wrongdoing of third-party defendant, BAYER, their agents, servants, employees, contractees and/or subcontractors. 67. As a result of the negligence, recklessness, omissions and/or carelessness of third-party defendant, BAYER, they are solely liable for any and all injuries plaintiff, MADONNA RAMP, may have suffered. 68. That, by reason thereof, defendants/third-party plaintiffs, HYATT CORPORATION and HYATT EQUITIES, LLC are entitled to indemnification and/or contribution from third-party defendant BAYER. 15 LEGAL/ v1 13 of 17

14 AS AND FOR A EIGHTH CAUSE OF ACTION AGAINST THIRD-PARTY DEFENDANT MGK (Indemnification and Contribution) 69. Defendants/third-party plaintiffs HYATT CORPORATION and HYATT EQUITIES, LLC repeat, reiterate and reallege each and every allegation contained in paragraphs 1 through 68 with the same force and effect as if set forth at length herein. 70. That although defendants/third-party plaintiffs HYATT CORPORATION and HYATT EQUITIES have denied the allegations of wrongdoing plaintiff asserts against them in plaintiffs Verified Complaint, should said defendants/third-party plaintiffs, HYATT CORPORATION and HYATT EQUITIES be found to be liable to plaintiff, MADONNA RAMP, then such liability shall derive from the active and affirmative wrongdoing of third-party defendant, MGK, their agents, servants, employees, contractees and/or subcontractors. 71. As a result of the negligence, recklessness, omissions and/or carelessness of third-party defendant, MGK, they are solely liable for any and all injuries plaintiff, MADONNA RAMP, may have suffered. 72. That, by reason thereof, defendants/third-party plaintiffs, HYATT CORPORATION and HYATT EQUITIES, LLC are entitled to indemnification and/or contribution from third-party defendant MGK. WHEREFORE, defendants/third-party plaintiffs, HYATT CORPORATION and HYATT EQUITIES, LLC, demand judgment against third-party defendants, BAYER CROPSCIENCE LP, and MCLAUGHLIN GORMLEY KING COMPANY, for indemnification and contribution for any all 16 LEGAL/ vi 14 of 17

15 damages by plaintiff, as against the defendants/third-party plaintiffs HYATT CORPORATION and HYATT EQUITIES, LLC, together with costs, interest and disbursements and such other and further relief as may be just and proper. Dated: Rye Brook, New York April 20, 2018 MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN By: James P onnors, Esq. Attor ys for Defendants/Third-Party Plaintiffs H ATT CORPORATION and HYATT EQUITIES, L.L.C. 800 Westchester Avenue, Suite C-700 Rye Brook, New York (914) File No.: LEGAL/ vi 15 of 17

16 ATTORNEY'S VERIFICATION JAMES P. CONNORS, affirms under the penalties of perjury that he is a shareholder of the firm of MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN, attorneys for defendants/thirdparty plaintiffs, HYATT CORPORATION and HYATT EQUITIES, LLC, in the captioned action; that he has read the foregoing VERIFIED THIRD-PARTY COMPLAINT and knows the contents thereof; that the same is true to his own knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. The reason this verification is made by your affirmant and not by the defendants/third-party plaintiffs herein is that the defendants/third-party plaintiffs are not in the County of Westchester where the undersigned has his office. The sources of your affirmant's information and belief are from conversations had with the defendants/third-party plaintiffs herein and from the documents contained in the affirmant's file. Dated: Rye Brook, New York April 20, 2018 JA. CONNORS, ESQ. 18 LEGAL/I I vl 16 of 17

17 INDEX NO.: /2016 SUPREME COURT OF THE STATE OF NEW YORK: COUNTY OF NEW YORK MADONNA RAMP, Plaintiff, HYATT CORPORATION and HYATT EQUITIES, LLC, Defendants/Third-Party Plaintiffs -against- -against- BAYER CROPSCIENCE LP and MCLAUGHLIN GORMLEY KING COMPANY, Third-Party Defendants. THIRD-PARTY SUMMONS and VERIFIED THIRD-PARTY COMPLAINT MARSHALL DENNEHEY WARNER COLEMAN 4 GOGGIN ATTORNEYS FOR DEFENDANTS/THIRD-PARTY PLAINTIFFS HYATT CORPORATION and HYATT EQUITIES, LLC 800 WESTCHESTER AVENUE, SUITE C-700 RYE BROOK, NEW YORK (914) PURSUANT TO 22 NYCRR , THE UNDERSIGNED, AN ATTORNEY ADMITTED TO PRACTICE IN THE COURTS OF NEW YORK STATE, CERTIFIES THAT, UPON INFORMATION AND BELIEF AND REASONABLE INQUIRY, THE CONTENTIONS CONTAINED IN THE ANNEXED DOCUMENT ARE NOT FRIVOLOUS. DATED: SIGNATURE PRINT SIGNER'SNAME: SERVICE OF A COPY OF THE WITHIN IS HEREBY ADMITTED. DATE: ATTORNEY(S) FOR 17 of 17