FILED: BRONX COUNTY CLERK 02/06/2013 INDEX NO /2013E NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 02/06/2013

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1 FILED: BRONX COUNTY CLERK 02/06/2013 INDEX NO /2013E NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 02/06/2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX )( SEA BREEZE HOLDINGS, LLC., -against- Plaintiff, Index No.: 20392/2013E AMENDED VERIFIED COMPLAINT ENDURANCE AMERICAN INSURANCE COMPANY alk/a ENDURANCE AMERICAN SPECIALTY INSURANCE COMPANY, Defendant )( Plaintiff, SEA BREEZE HOLDINGS, LLC, by its attorneys, LERNER, ARNOLD & WINSTON, LLP, as and for its Verified Complaint, herein alleges upon information and belief as follows: PARTIES I. At all times hereinafter mentioned, plaintiff SEA BREEZE HOLDINGS, LLC ("SEA BREEZE") was and still is a domestic limited liability company, organized and existing under and by virtue of the laws of the State of New York. 2. At all times hereinafter mentioned, defendant ENDURANCE AMERICAN INSURANCE COMPANY alk/a ENDURANCE AMERICAN SPECIALTY INSURANCE COMPANY ("ENDURANCE") was and still is a foreign insurance entity, organized and existing under and by virtue of the laws of the State of Delaware. 3. At all times hereinafter mentioned, defendant ENDURANCE had a principal place of business located in the State of Delaware. 4. At all times hereinafter mentioned, defendant ENDURANCE was regularly L ER NER, ARNOLD & WINSTON, L LP AnoRNE YS AT LAw conducting business in the state of New York, and subject to the jurisdiction of this Court.

2 5. At all times hereinafter mentioned defendant ENDURANCE was authorized by the Superintendent of Insurance to issue policies of insurance in the State of New York. 6. At all times hereinafter mentioned, defendant ENDURANCE was an unadmitted carrier, not authorized by the Superintendent of Insurance to issue policies of insurance in the State of New York. BACKGROUND FACTS 7. At all relevant times, plaintiff was the title owner of certain premises located at 1329 Clinton Avenue, Bronx, New York (hereinafter referred to as "the subject premises"). 8. Heretofore and prior to January II, 2008, for good and valuable consideration, defendant issued to plaintiff a policy of insurance bearing number WKCIOI (the "Policy"), with effective dates of coverage from November 7, 2007 through November 7, 2008, which policy insured the subject premises against all risks of loss, including "bodily injury" and "personal injury" arising out of the ownership, maintenance, and use of the subject premises. 9. On or about January II, 2008, an individual by the name of Concepcion Guzman allegedly sustained personal injuries as the result of an occurrence that purportedly took place at the subject premises. 10. On or about April 26, 2011, an action was commenced by Concepcion Guzman in the Supreme Court of the State of New York in the County of Bronx, captioned Concepcion Guzman v. Sea Breee Holdings, LLC, and Explorer New York Contracting Corp., under Index Number /2011 (hereinafter referred to as "the underlying action.") II. The underlying action involved, inter alia, claims and allegations of common law negligence against SEA BREEZE, allegedly giving rise to the January II, 2008 injuries allegedly LERNER. ARNOLD & W INSTON. LLP ATTORNEYS AT LAw sustained by Concepcion Guzman. A copy of the Summons and Complaint in the underlying 2

3 action is annexed hereto as Exhibit "A." 12. As set forth in the Complaint in the underlying action, the events that support the allegations of negligence against SEA BREEZE occurred while the Policy was in full force and effect. 13. Upon receiving a copy of the Summons and Complaint in the underlying action, SEA BREEZE placed ENDURANCE on notice of the claims alleged and provided it with a copy of the Summons and Complaint. 14. After conducting an investigation into this matter ENDURANCE denied coverage to SEA BREEZE, and refused to defend and indemnify them in the underlying action. 15. As a result of ENDURANCE's declination of coverage, SEA BREEZE has retained private counsel to defend it in the underlying action. AS AND FOR A FIRST CAUSE OF ACTION (Declaratory Judgment) 16. Plaintiff repeats, reiterates and real leges each and every allegation set forth in preceding paragraphs numbered " I" through "15," inclusive, with the same force and effect as though more fully set forth herein at length. 17. The Policy obligates ENDURANCE to indemnify SEA BREEZE ill the underlying action. action. 18. SEA BREEZE has duiy requested that defendant indemnify it in the underlying 19. An actual controversy exists between plainti.ff and defendant with respect to ENDURANCE's obligation to indemnify SEA BREEZE in the underlying action. 20. ENDURANCE's refusal to provide a defense for SEA BREEZE in the underlying L ERNER, ARNOLD & WINSTON, LLP ATTOR;.;EYS... T LA\\" action is unreasonable and improper as a matter oflaw. 3

4 21. ENDURANCE's refusal to indemnify SEA BREEZE in the underlying action is unreasonable and improper as a matter of law. 22. The failure and refusal of ENDURANCE to defend and indemnify SEA BREEZE in the underlying action was and is wrongful and in breach of the Policy, as well as the laws of the State of New York. 23. Plaintiff has no adequate remedy at law. 24. A judicial declaration is necessary to establish plaintiffs rights and defendant's duties with respect to the underlying action. AS AND FOR A SECOND CAUSE OF ACTION (Breach of Contract) 25. Plaintiff repeats, reiterates and realleges each and every allegation set forth in preceding paragraphs numbered " I" through "24," inclusive, with the same force and effect as though more fully set forth herein at length. 26. The Policy obligates defendant to provide a defense for and indemnify plaintiff against claims of negligence made by third-parties. 27. Although the claims alleged in the underlying action fall within the insuring provisions of the Policy, and despite the fact that SEA BREEZE has fully complied with the notice provisions of the Policy, as well as all other conditions precedent, defendant has failed to indemnify plaintiff in the underlying action. 28. Defendant's failure to defend and/or indemnify plaintiff in the underlying action, although duly demanded, constitutes a breach of contract. 29. As a result of defendant's breach of contract, plaintiff has been damaged which damages include the costs incurred in retaining independent counsel and the monies expended in L ERNER, ARNOLD & WINSTON, LLP AlTORN"EYS AT L\w defending the underlying action, and which damages to date total $25,514.14, and will continue 4

5 to accrue. 30. In addition to the expenses incurred in defending the underlying action, and as a result of ENDURANCE's breach of contract, plaintiff will sustain additional damages if it is determined that it is responsible for the injuries sustained by Concepcion Guzman. 31. As a result of defendant' s breach of the terms and conditions of the Policy, defendant is liable to plaintiff for damages in an amount to be determined by a Bronx County Jury, but believed to exceed the jurisdictional limits of all lower courts that would otherwise have jurisdiction. WHEREFORE, plaintiff demands judgment: (I) on its First Cause of Action declaring and adjudging that defendant ENDURANCE is obligated to defend and indemnify SEA BREEZE in the underlying action and to reimburse SEA BREEZE for the costs incurred to date in defending the underlying action; and (2) on its Second Cause of Action against defendant for money damages equivalent to the amount of monies expended and to be expended b y SEA BREEZE to defend the underlying action, altogether with prejudgment interest and post judgment interest, as well as the costs and disbursements ofthis action. Dated: New York, New York February 6, 2013 LERNER, ARNOLD & WINSTON, LLP Attorneys for Plaintiff By?~) Tatiana R. Kro 475 Park Avenue South, 28 th Floor New York, New York tkrorna@lawpartnersllp.com (212) LERNE R. ARNOLD & WINSTON, LLP ATIORNEYS AT L \W 5

6 VERIFICATION Tatiana R. Kroma, an attorney duly admitted to practice law in the State of New York, hereby affirms the truth of the following, upon information and belief, under penalty of perjury: That I am the attorney for the Plaintiff in the within action. That I have read the foregoing AMENDED VERIFIED COMPLAINT and know the contents thereof; that the same is true to my own knowledge, except as to the matters therein stated to be upon information and belief; and as to those matters I believe it to be true. That the reason this verification is made by your affirmant and not by the Plaintiff is that the Plaintiff does not reside in the County where your affirmant maintains his office. That the grounds for your affrrrnant's belief as to all matters not stated upon my knowledge are as follows: records, correspondence, reports and documents contained in Plaintiff's file maintained by your affirmant's office. Dated: New York, New York February 6, 2013 Tatiana R. Kroma LERNER, AR NOLD & W INSTON. LLP A1TQ R..'1EYS... T LAw 6

7 -".-.J.71l!Jat""ian"'a"-"R"',..,Kr"'0I!!!mll4Q_-:'- COUNTY OF.BRONX,SEA BREEZE HOLDINGS"LLC, Plaintiff, -against-, / ENDURANCEAMERICANINSUR,ANCE ' COMPANYalkIa ENDURANCE AMERICAN SPECIAhTY INSURANCE COMPANY, ",,. '. ;.1..,,, AMENDED SuMMONS AND VERIFIED COMPLAINT " ' ",~'=======""';'''''''''='==e===-.~''''''''''''''''==="---~, 'T" ~===... ~"""=::-~~ Pur;~a~tto 22}IYCRR ), tlje ~ntlersig-"ed,-"" attorney duly admitted to pr~clice law in ti/e S/J1Je ofnrw York. certifies,tijat,'upon infornuillon lind belie/based upon reasonable inquiry, the contentions contained in the tl1iij&i!d dooument are not :. /rivolo'" ',' " ' ",',, ", 0>...:.,'./ : Datea. Feb~'i'» SigntitUh: ', ~/2,:5 ~,,. '. Pr;l1t~igne! 's Name:, C' --:-7,. " Service o/a copy o/the within is hereby admitted. Dated: ". :., -, ,. '1-, Attorru:y'(S) p~r ',,,.. ",, LERNER; ARNObD, & WINSTON, LLP : " Attorneys' for Plaintiff S~a Breeze Holdirigs, LLC 475 Park Avenu~ ;South,, 28tb Floor ',NeW Y-qik~ New York 10016, -:,,:(212) '. ", " ",., '