FILED: NEW YORK COUNTY CLERK 01/11/ :00 PM INDEX NO /2016 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 01/11/2017 EXHIBIT 1

Transcription

1 FILED: NEW YORK COUNTY CLERK 01/11/ :00 PM INDEX NO /2016 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 01/11/2017 EXHIBIT 1

2 2010 WL (N.Y.Sup.) (Trial Pleading) Supreme Court of New York. New York County -AMERICAN INSURANCE COMPANY as Subrogee of Pavarini McGovern, LLC, Plaintiff, v. JDP MECHANICAL, INC., Defendant. No February16,2010. Complaint Robert A. Stem, Esq., Virginia M. Markovich, Esq., Clausen Miller, P.C., One Chase Manhattan Plaza, New York, New York 10005, (212) , Attorneys for Plaintiff. Plaintiff, - AMERICAN INSURANCE COMPANY a!s/o PA V ARINI MCGOVERN, LLC, by and through its attorneys, upon information and belief, hereby allege the following: 1. - AMERICAN INSURANCE COMPANY (hereinafter "ZAIC"), is a corporation engaged in the insurance business with a - UQ'PJ~ lice and main administrative office located at 1400 American Lane, Schaumburg, 1111! It is authorized to transact business and has transacted business in the State ofnew York. 2. At all relevant times, Plaintiff ZAIC was authorized to issue policies of insurance within the State of New York. 3. At all relevant times, PA VARIN! MCGOVERN, LLC ("Pavarini") had a policy of insurance in force and effect with ZAIC. 4. At all relevant times, Plaintiff ZAIC insured Pavarini, pursuant to Policy No. MBR ("Pavarini's Policy") 5. At all relevant times, Pavarini is a domestic corporation with a principal place of business located at 352 Park Ave. South, New York, New York At all relevant times, Defendant JDP was engaged in the business of, inter alia, installing Heating Ventilation and Air Conditioning ("HV AC") units. 7. Prior to March 9, 2007, Pavarini retained Defendant JDP as a HVAC subcontractor for the Project. 8. On or about March 9, 2007, Defendant JDP failed to cap-off a domestic water riser located in the mechanical room of the 13th floor of the Premises, which allowed water to flow up the riser spilling out onto the floor and releasing water into the Premises. 9. As a result, the Premises sustained extensive water damage. 10. The water damages were the result of Defendant JDP's failure in properly performing its activities at the Premises and/or supervising same. 11. As a result, Plaintiff incurred damages in the amount of Four Hundred Eighty Thousand Twenty-Three Dollars and Sixty-Six Cents ($480,023.66). 12. As a result of the damages, Pavarini presented a claim to ZAIC under its Policy. tk 1 N 2017 Thomson Reuters. No claim to original U.S. Government Works.

3 13. Pursuant to its policy of insurance, ZAIC indemnified Pavarini for the property, real and personal, and business income loss suffered as a result of the fire at the Premises, in the amount Four Hundred Eighty Thousand Twenty-Three Dollars and Sixty-Six Cents ($480,023.66). 14. Pursuant to the Policies and common law, ZAIC is subrogated to the rights and privileges ofpavarini. 15. ZAIC requested indemnification and/or reimbursement for its damages from Defendant, which Defendant has ignored and/or denied. AS AND FOR A FIRST CAUSE OF ACTION IN NEGLIGENCE AGAINST DEFENDANT JDP 16. Plaintiff repeats, reiterates and realleges each and every allegation contained in paragraphs numbered "1" through "15" 17. Defendant JDP owed a duty to Plaintiff, by way of subrogation, to properly and competently perform its activities at the Premises and/or supervise same. 18. Defendant JDP owed a duty to Plaintiff, by way of subrogation, to perform its activities at the Premises such that it would not create a dangerous condition and/or increase the risk of harm to the Premises. 19. Defendant JDP owed a duty to Plaintiff, by way of subrogation, to hire competent employees, agents, representatives, contractors and/or subcontractors to perform its activities at the Premises. 20. Defendant JDP owed a duty to Plaintiff, by way of subrogation, to exercise due or reasonable care under the circumstances then and there existing. 21. Defendant JDP breached all the above described duties. 22. Had Defendant JDP properly performed its duties, the water damage at the Premises would not have occurred. 23. Defendant JDP' s negligence in failing to cap-off a domestic water riser located in the mechanical room of the 13th floor of the Premises, proximately caused the damages sustained by Plaintiff. 24. The damages suffered by Plaintiff, by way of subrogation, do not ordinarily occur in the absence of someone's negligence. 25. The damages suffered by Plaintiff, by way of subrogation, were caused when Defendant JDP negligently, carelessly and/or recklessly performed its duties at the Premises and failed to supervise its activities at the Premises in a manner which did not create a dangerous condition for the Premises and/or increase the risk of harm to the Premises. 26. Defendant JDP's activities at the Premises and/or the area where Defendant JDP performed its activities at the Premises were exclusively within its care, custody and control. 27. The damages suffered by Plaintiff, by way of subrogation, were not due to any voluntary action and/or contribution on the part of Plaintiff. 28. Plaintiff may also rely upon res ipsa loquitur. 29. Plaintiffs damages, Four Hundred Eighty Thousand Twenty-Three Dollars and Sixty-Six Cents ($480,023.66), were a direct and proximate result of Defendant JDP's negligent, careless and/or reckless actions and/or omissions at the Premises. 'N!:;SILAW 2017 Thomson Reuters. No claim to original U.S Government Works. 2

4 Eighty Thousand Twenty-Three Dollars and Sixty-Six Cents ($480,023.66), together with interest, legal fees, costs and such AS AND FOR A SECOND CAUSE OF ACTION IN BREACH OF CONTRACT AGAINST DEFENDANT JDP 30. Plaintiff repeats, reiterates and realleges each and every allegation contained in paragraphs numbered "1" through "29" 31. Defendant JDP was hired to perform activities at the Premises, pursuant to a contractual relationship. 32. Pursuant to said contractual relationship, Defendant JDP owed various duties of care to Plaintiff, by way of subrogation, including, but not limited to, performing its activities in a manner that it would not create a dangerous condition and/or increase the risk of harm to the Premises, hiring competent employees, agents, representatives, contractors and/or subcontractors to perform its activities; and exercising due or reasonable care under the circumstances then and there existing. 33. Defendant JDP's acts and/or omissions in failing to perform its activities in a manner that would not create a dangerous condition and/or increase the risk of harm to the Premises, hiring incompetent employees, agents, representatives, contractors and/or subcontractors, and failing to exercise due or reasonable care under the circumstances then and there existing, were a breach of its duties and obligations under its contractual relationship. 34. As a foreseeable result of Defendant JDP's breach of its contractual relationship, Plaintiff, by way of subrogation, incurred significant damages in an amount in excess of Four Hundred Eighty Thousand Twenty-Three Dollars and Sixty-Six Cents ($480,023.66). Eighty Thousand Twenty-Three Dollars and Sixty-Six Cents ($480,023.66), together with interest, legal fees, costs and such AS AND FOR A THIRD CAUSE OF ACTION IN BREACH OF EXPRESS AND IMPLIED WARRANTIES AGAINST DEFENDANT JDP 35. Plaintiff repeats, reiterates and realleges each and every allegation contained in paragraphs numbered "1" through "34" 36. Defendant JDP made express and implied warranties to Plaintiff, by way of subrogation, concerning Defendant JDP's performance of its activities at the Premises. 37. Defendant JDP's representations, warranties and guarantees were part of the basis for Plaintiff entering into an agreement with Defendant JDP for Plaintiffs benefit. 38. Defendant JDP breached its express and implied warranties, by failing to: perform its activities in a manner that it would not create a dangerous condition and/or increase the risk of harm to the Premises, hiring incompetent employees, agents, representatives, contractors and/or subcontractors, failing to exercise due or reasonable care under the circumstances then and there existing, and in general acting in so negligent, careless and/or reckless manner so as to evince a complete disregard for the safety of the property of others, including, but not limited to, the Premises. 39. Defendant JDP breached its express and implied warranties when it negligently, carelessly and/or recklessly performed its activities at the Premises. 40. As a direct and foreseeable result of the aforesaid breaches by Defendant JDP, Plaintiff, by way of subrogation, incurred 'Nt.:sn... A'N 2017 Thomson Reuters. No claim to original U.S. Government Works. 3

5 damages in the amount of Four Hundred Eighty Thousand Twenty-Three Dollars and Sixty-Six Cents ($480,023.66), and Defendant JDP is liable for such damages. Eighty Thousand Twenty-Three Dollars and Sixty-Six Cents ($480,023.66), together with interest, legal fees, costs and such AS AND FOR A FOURTH CAUSE OF ACTION IN INDEMNIFICATION AGAINST DEFENDANT JDP 41. Plaintiff repeats, reiterates and realleges each and every allegation contained in paragraphs numbered "1" through "40" 42. Plaintiff, by way of subrogation, entered into a contract with Defendant JDP. 43. Pursuant to the contract, Defendant JDP agreed to indemnify Plaintiff, by way of subrogation, for all damages arising out of its work. 44. Pursuant to the contract, Defendant JDP was required to obtain Commercial General Liability insurance covering damages to the Premises, naming Plaintiff as an additional insured. 45. Pursuant to the contract, Defendant JDP was required to obtain Errors and Omissions insurance covering acts, errors, mistakes or omissions arising out of its work. 46. As a direct and foreseeable result of Defendant JDP's acts and/or omissions, and/or breach of contract, Plaintiff, by way of subrogation, has incurred extensive fmancialloss, and Defendant JDP is obligated to indemnify Plaintiff for this loss. 47. Additionally, Defendant JDP's sole actions caused the damage to the Premises. 48. Defendant JDP, as the sole active tortfeasor, has a common law duty of indemnification to Plaintiff. 49. Following this incident, Plaintiff, by way of subrogation, notified Defendant JDP of the loss and demanded indemnification for Plaintiffs damages. 50. Defendant JDP has failed to indemnify Plaintiff and has therefore breached its contractual and common law duty to Plaintiff. 51. Defendant JDP has failed to provide coverage to Plaintiff, by way of subrogation, as an Additional Insured. 52. Accordingly, Plaintiff, by way of subrogation, herein demands indemnification and reimbursement from Defendant JDP for the total amount of its incurred damages. Eighty Thousand Twenty-Three Dollars and Sixty-Six Cents ($480,023.66), together with interest, legal fees, costs and such AS AND FOR A FIFTH CAUSE OF ACTION IN GROSS NEGLIGENCE. RECKLESSNESS AND/OR WILLFUL AND WANTONMISCONDUCTAGAINSTDEFENDANTJDP 53. Plaintiff repeats, reiterates and realleges each and every allegation contained in paragraphs numbered "1" through "52" 2017 Thomson Reuters. No claim to original U.S. Government Works. 4

6 54. Defendant JDP knew or should have known that improperly performing its activities at the Premises would create a dangerous and ultra-hazardous condition at the Premises. 55. Defendant JDP knew or should have known that it was to perform its activities in a manner which prevented the dangerous and ultra-hazardous condition from causing the loss of life, limb and/or property. 56. Defendant JDP knew or should have known that its failure to properly perform its duties could result in the loss of life, limb and/or property, and a high degree of danger was present. 57. Defendant JDP knew or should have known that its conduct with respect to its activities, and its duties owed to Plaintiff, by way of subrogation, were required to be beyond that of ordinary care. 58. Defendant JDP knew or should have known that its activities with respect to its activities were part of a dangerous and ultra-hazardous activity. 59. Defendant JDP knew or should have known that any departure from ordinary care could result in the loss of life, limb and/or property. 60. Defendant JDP was required to conduct itself with a high degree of caution to avoid the apparent danger posed by its activities. 61. Defendant JDP' s conduct in performing its activities were in complete disregard for the rights and safety of Plaintiff and the consequences thereof. 62. Defendant JDP knew that its failure to properly perform its activities could result in the loss of life, limb and/or property. 63. Despite all the knowledge held by Defendant JDP, it intentionally, grossly, willfully, wantonly and/or recklessly failed to properly perform its activities at the Premises and failed to cap-off a domestic water riser located in the mechanical room of the 13th floor of the Premises, which caused significant water damages. 64. In light of the above, Defendant JDP's actions were of a highly unreasonable conduct, an extreme departure from ordinary care, grossly negligent, willful, wanton and/or reckless. 65. Defendant JDP's failure to abide by its required conduct and duty owed to Plaintiff was in and of itself an extreme departure from ordinary care. 66. Defendant JDP did not act out of mere mistake resulting from inexperience, excitement, confusion, thoughtlessness, inadvertence or simple inattention. 67. As a direct and proximate result of Defendant JDP's willful, wanton, grossly negligent and/or reckless conduct, Plaintiff was caused to sustain damages in the amount of Four Hundred Eighty Thousand Twenty-Three Dollars and Sixty-Six Cents ($480,023.66), together with interest, legal fees, costs and such Eighty Thousand Twenty-Three Dollars and Sixty-Six Cents ($480,023.66), together with interest, legal fees, costs and such Dated: February 11, 2010 End of Document 2017 Thomson Reuters. No claim to original U.S. Government Works Thomson Reuters. No claim to original U.S. Government Works. 5