FILED: NEW YORK COUNTY CLERK 05/02/2012 INDEX NO /2012 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/02/2012

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1 FILED: NEW YORK COUNTY CLERK 05/02/2012 INDEX NO /2012 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/02/2012 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X 315 EAST 70 TH STREET APARTMENT CORP., -against- Plaintiff, S3 TUNNEL CONSTRUCTORS, J.V., SSK CONSTRUCTORS, J.V., SKANSKA USA CIVIL INC., J.F. SHEA CONSTRUCTION, INC., SCHIAVONE CONSTRUCTION CO. LLC, KIEWIT CONSTRUCTORS INC., PB AMERICAS, INC., THE CITY OF NEW YORK, METROPOLITAN TRANSPORTATION AUTHORITY, MTA CAPITAL CONSTRUCTION COMPANY and NEW YORK CITY TRANSIT AUTHORITY, Index No.: Date Purchased: SUMMONS Plaintiff designates New York County as the place of trial. The basis of venue is: The county in which the causes of action arose. Defendants X TO THE ABOVE-NAMED DEFENDANTS: YOU ARE HEREBY SUMMONED to answer the complaint in this action, and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance on the Plaintiff s attorneys 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. Dated: New York, New York May 2, 2012 MONTGOMERY, McCRACKEN, WALKER & RHOADS, LLP By: /s Charles Palella Charles Palella Attorneys for Plaintiff 437 Madison Ave., 29 th Floor New York, New York (212) cpalella@mmwr.com To: S3 Tunnel Constructors, J.V. 207 E. 94 th St., Suite 403 New York, NY 10128

2 SSK Constructors, J.V. 150 Meadowlands Parkway Secaucus, NJ Skanska USA Civil Inc Astoria Boulevard Queens, NY J.F. Shea Construction, Inc. 667 Brea Canyon Road, Suite 30 Walnut, CA Schiavone Construction Co. LLC 150 Meadowlands Parkway Secaucus, NJ Kiewit Constructors Inc. Kiewit Plaza Omaha, NE PB Americas, Inc. 1 Penn Plaza New York, NY The City of New York Attn: Corporation Counsel The City of New York Law Dept. 100 Church Street New York, NY Metropolitan Transportation Authority 347 Madison Ave. New York, NY MTA Capital Construction Company 347 Madison Ave. New York, NY New York City Transit Authority 130 Livingston St. Brooklyn, NY

3 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X 315 EAST 70 TH STREET APARTMENT CORP., -against- Plaintiff, S3 TUNNEL CONSTRUCTORS, J.V., SSK CONSTRUCTORS, J.V., SKANSKA USA CIVIL INC., J.F. SHEA CONSTRUCTION, INC., SCHIAVONE CONSTRUCTION CO. LLC, KIEWIT CONSTRUCTORS INC., PB AMERICAS, INC., THE CITY OF NEW YORK, METROPOLITAN TRANSPORTATION AUTHORITY, MTA CAPITAL CONSTRUCTION COMPANY and NEW YORK CITY TRANSIT AUTHORITY, Index No. COMPLAINT Defendants X Plaintiff 315 EAST 70 TH STREET APARTMENT CORP., by its attorneys, MONTGOMERY, McCRACKEN, WALKER & RHOADS, LLP, complaining of Defendants, respectfully alleges, upon information and belief, as follows: THE PARTIES 1. At all times herein mentioned, Plaintiff 315 EAST 70 TH STREET APARTMENT CORP. (the Cooperative ) was, and still is, a cooperative apartment corporation organized and existing under the laws of the State of New York. 2. At all times herein mentioned, the Cooperative was and is the owner of the building located at 315 East 70 th Street, New York, New York (the Building ). 3. Upon information and belief, defendant S3 TUNNEL CONSTRUCTORS, J.V. ( S3 ) was, and still is, a joint venture formed by and among defendants Skanska USA Civil Inc., J.F. Shea Construction, Inc. and Schiavone Construction Co. LLC for purposes of constructing the tunnels between 92 nd Street and the existing Lexington Avenue/63 rd Street Station for the Second Avenue subway project in New York, New York (the Tunnel Project ).

4 4. Upon information and belief, defendant SSK CONSTRUCTORS, J.V. ( SSK ) was, and still is, a joint venture formed by and among defendants J.F. Shea Construction, Inc., Schiavone Construction Co. LLC and Kiewit Constructors Inc. for purposes of performing the work contracted for in connection with the 72 nd Street Station of the Second Avenue subway project in New York, New York (the 72 nd Street Station Project ). 5. The Tunnel Project and the 72 nd Street Station Project shall be collectively referred to herein as the Project. 6. At all times herein mentioned, defendant SKANSKA USA CIVIL INC. ( Skanska ) was, and still is, a corporation organized and existing under the laws of the State of Delaware. 7. Upon information and belief, Skanska is eligible to transact and does transact business in the State of New York. 8. At all times herein mentioned, defendant J.F. SHEA CONSTRUCTION, INC. ( J.F. Shea ) was, and still is, a corporation organized and existing under the laws of the State of California. 9. Upon information and belief, J.F. Shea is eligible to transact and does transact business in the State of New York. 10. At all times herein mentioned, defendant SCHIAVONE CONSTRUCTION CO. LLC ( Schiavone ) was, and still is, a limited liability company organized and existing under the laws of the State of New Jersey. 11. Upon information and belief, Schiavone is eligible to transact and does transact business in the State of New York. 2

5 12. At all times herein mentioned, defendant KIEWIT CONSTRUCTORS INC. ( Kiewit ) was, and still, a corporation organized and existing under the laws of the State of Delaware. 13. Upon information and belief, Kiewit is eligible to transact and does transact business in the State of New York. 14. Defendants S3, SSK, Skanska, J.F. Shea, Schiavone and Kiewit shall be collectively referred to herein as the General Contractors. 15. At all times herein mentioned, defendant PB AMERICAS, INC. ( PB ) was, and still is, a corporation organized and existing under the laws of the State of New York. 16. Upon information and belief, PB entered into contract C with the MTA by which for an agreed compensation, agreed to provide construction management services in connection with the Project. PB shall be referred to herein as the Construction Manager. 17. At all times herein mentioned, defendant THE CITY OF NEW YORK (the City ) was, and still is, a municipal corporation organized and existing under the laws of the State of New York. 18. At all times herein mentioned, defendant METROPOLITAN TRANSPORTATION AUTHORITY ( MTA ) was, and still is, a public benefit corporation organized and existing under the laws of the State of New York. 19. At all times herein mentioned, defendant MTA CAPITAL CONSTRUCTION COMPANY ( MTACC ) was, and still is, a domestic governmental entity organized and existing under the laws of the State of New York. 3

6 20. Upon information and belief, the MTACC is an agency of the MTA that serves as the MTA s project-management arm and the MTA s center of expertise for complex construction techniques such as tunneling, building underpinning and secant wall construction. 21. At all times herein mentioned, defendant NEW YORK CITY TRANSIT AUTHORITY ( NYCTA ) was, and still is, a public benefit corporation organized and existing under the laws of the State of New York. STATEMENT OF FACTS 22. Upon information and belief, Defendants at all times hereinafter mentioned were engaged in the construction, building, excavation and blasting at the Project. 23. Upon information and belief, on or about March 20, 2007, S3, Skanska, J.F. Shea and Schiavone, as general contractors, entered into contract C with the MTA by which for an agreed compensation, agreed to conduct the construction, building, excavation and blasting by means of explosives in connection with the Tunnel Project. 24. Upon information and belief, on or about October 1, 2010, SSK, Schiavone, J.F. Shea and Kiewit, as general contractors, entered into contract C with the MTA by which for an agreed compensation, agreed to conduct the construction, building, excavation and blasting by means of explosives in connection with the 72 nd Street Station Project. 25. Upon information and belief, the blasting at the Project was at all times subject to the supervision and inspection of the General Contractors and the Construction Manager. 26. Commencing on or around February 7, 2011, and continuing to present, vibration from said blasting activities at the Project caused the Building to, among other things, move off its shelf angle and sustain cracks to its façade. 4

7 27. This blasting and resulting vibration caused the Building s perimeter sealant joint between the brick and the aluminum window frame to rip open, primarily on the South Façade, from the southwest corner of the Building: (a) the 2 nd to the 5 th windows on the 2 nd floor; (b) the 2 nd to the 4 th windows on the 3 rd floor; and (c) the 2 nd and 3 rd windows on the 4 th and 5 th floors. 28. The blasting and resulting vibration also caused masonry movement at the 3 rd and 5 th floors. 29. In addition, (a) window perimeter sealant failure was caused on Building floors 2, 7, 10 and 12; (b) brick panels adjacent to windows on the 2 nd floor were shifted outward; (c) window sill bed joints opened at several floors; and (d) new masonry cracking was caused on Building floors 7 and Further, the bricks between the 2 nd and 3 rd floors of the Building shifted up to 3/8 off the shelf angle, and the bricks between the 5 th and 6 th floors of the Building shifted up to 1/8 off the shelf angle. 31. The upper corner of the southwest 10 th floor parapet corner was also caused to move. 32. Upon information and belief, the blasting and vibration also caused cracking of the walls, ceilings and floors of individual apartments within the Building. 33. Upon information and belief, the blasting resulted in additional damage and, as blasting continues, further damage to the Building will be sustained. 34. Upon information and belief, Defendants and each of their respective agents, servants, licensees, contractors, subcontractors, employees and other affiliates, agencies and departments, in connection with the Project, failed to: (a) develop and carry out a proper controlled blasting plan, including, but not limited to, the controlled blasting plan approved by the Fire Department of the City of New York; (b) develop and maintain a proper safety zone during the 5

8 blasting operations; (c) conduct a proper pre-blasting structural survey of all buildings, structures and infrastructure surrounding the blasting zone; (d) conduct the blasting operations in compliance with all applicable laws, rules, regulations, permit conditions and blasting procedures; (e) review blasting patterns prior to commencement of the blasting and at such other required times; (f) monitor all blasting operations, including, but not limited to, ground vibration and airblast overpressure levels each time explosives were detonated; (g) take appropriate precautions in the timing, loading, confinement and initiation of each blast so as to minimize the effect of the blast upon surrounding uses and occupancies, and to control the ground vibrations and air blast effects; (h) shore or otherwise reinforce buildings, retaining walls and other structures and infrastructure susceptible to damage from vibration and air blast effects; and (i) immediately suspend blasting activities once the integrity of the Building was threatened; and were otherwise negligent in the supervision and control of the blasting activities. 35. On or about April 7, 2011, the Cooperative served and filed a Notice of Claim upon the City. 36. At least thirty (30) days have elapsed since the Notice of Claim was presented to the City and the City has neglected or refused to make an adjustment or payment thereof. 37. On or about April 7, 2011, the Cooperative served and filed a Notice of Claim upon the MTA. 38. At least thirty (30) days have elapsed since the Notice of Claim was presented to the MTA and the MTA has neglected or refused to make an adjustment or payment thereof. 39. On or about April 7, 2011, the Cooperative served and filed a Notice of Claim upon the NYCTA. 6

9 40. At least thirty (30) days have elapsed since the Notice of Claim was presented to the NYCTA and the NYCTA has neglected or refused to make an adjustment or payment thereof. A FIRST CAUSE OF ACTION AGAINST ALL DEFENDANTS (Negligence) 41. Plaintiff repeats and realleges the allegations contained in Paragraphs 1 through 40 of the Complaint as if fully set forth at length herein. 42. Defendants were and are engaged in performing work at the Project and while so engaged Defendants did considerable blasting of rock and soil using explosives in connection therewith. 43. Defendants did not exercise reasonable care in blasting in the vicinity of the Building, but on the contrary were careless and negligent in the blasting, in that Defendants failed to perform the blasting in a proper manner. 44. The General Contractors and the Construction Manager were careless and negligent in failing to properly supervise and inspect the blasting work undertaken at the Project, as they were obligated to do so. 45. The City, the MTA, the MTACC and the NYCTA had non-delegable duties in connection with the supervision and control of the blasting activities. 46. By reason of the negligence of Defendants, the Building was damaged, which damage was progressive and continuous and necessitated immediate temporary repairs to avoid further damage and will require permanent structural and other repairs in order to restore the soundness of the structure, causing depreciation in the market value of the Building, all to the Cooperative s damage. 7

10 47. By reason of the negligence of Defendants, individual apartments within the Building were damaged. 48. The damage to the Cooperative was caused by the negligence of Defendants. 49. By reason of the foregoing, the Cooperative was damaged in the sum of not less than Two Million and No/100 ($2,000,000.00) Dollars. A SECOND CAUSE OF ACTION AGAINST ALL DEFENDANTS (Strict Liability) 50. Plaintiff repeats and realleges the allegations contained in Paragraphs 1 through 49 of the Complaint as if fully set forth at length herein. 51. Defendants engaged in blasting, an inherently dangerous activity. 52. Defendants blasting at the Project was a substantial factor in causing the damages to the Cooperative. 53. As a result of the foregoing, Defendants are strictly liable for the damages sustained by the Cooperative. 54. By reason of the foregoing, the Cooperative was damaged in the sum of not less than Two Million and No/100 ($2,000,000.00) Dollars. WHEREFORE, Plaintiff 315 East 70 th Street Apartment Corp. demands judgment against the Defendants as follows: with interest; with interest; A. On the First Cause of Action, damages in the amount of $2,000,000.00, together B. On the Second Cause of Action, damages in the amount of $2,000,000.00, together C. Together with the costs and disbursements of this action; and 8

11 D. Such other, further and different relief as is just and proper under the circumstances. Dated: New York, New York May 2, 2012 MONTGOMERY, McCRACKEN, WALKER & RHOADS, LLP By :_/s Charles Palella Charles Palella Attorneys for Plaintiff 437 Madison Ave., 29 th Floor New York, NY (212)