FILED: NEW YORK COUNTY CLERK 10/19/ :22 PM INDEX NO /2016 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/19/2016

Transcription

1 FILED: NEW YORK COUNTY CLERK 10/19/ :22 PM INDEX NO /2016 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/19/2016 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY x LUCY WILSON-FOLDEN and ROOSEVELT FOLDEN, Plaintiffs, Index No. SUMMONS v. MACY S RETAIL HOLDINGS, INC.; MACY S, INC.; GALLAGHER ELEVATOR COMPANY, INCORPORATED; THOMAS G. GRANVILLE d/b/a GALLAGHER ELEVATOR CO., INC.; THE MARKETPLACE; WILMORITE INC.; WILMORITE MANAGEMENT GROUP, LLC; and DOES 1 through 50; 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 Attorney within twenty (20) days after the service of this summons, exclusive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. VENUE Venue is designated as New York County, where at least one defendant is deemed to reside. Dated: New York, New York October 19, 2016 Brian L. Ponder, Esq. BRIAN PONDER LLP 200 Park Avenue, Suite 1700 New York, New York Telephone: (646) Facsimile: (646) (not for service) brian@brianponder.com (not for service) 1 1 of 10

2 To: MACY S RETAIL HOLDINGS, INC. c/o CORPORATION SERVICE COMPANY 80 State Street Albany, New York MACY S, INC. c/o CORPORATION SERVICE COMPANY 80 State Street Albany, New York GALLAGHER ELEVATOR COMPANY, INCORPORATED 135 South Division Street Buffalo, New York THOMAS G. GRANVILLE d/b/a GALLAGHER ELEVATOR CO., INC. 135 South Division Street Buffalo, New York THE MARKETPLACE c/o CT CORPORATION SYSTEM 111 Eighth Avenue New York, New York WILMORITE INC. c/o CT CORPORATION SYSTEM 111 Eighth Avenue New York, New York WILMORITE MANAGEMENT GROUP, LLC c/o CT CORPORATION SYSTEM 111 Eighth Avenue New York, New York of 10

3 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY x LUCY WILSON-FOLDEN and ROOSEVELT FOLDEN, Plaintiffs, Index No. COMPLAINT v. MACY S RETAIL HOLDINGS, INC.; MACY S, INC.; GALLAGHER ELEVATOR COMPANY, INCORPORATED; THOMAS G. GRANVILLE d/b/a GALLAGHER ELEVATOR CO., INC.; THE MARKETPLACE; WILMORITE INC.; WILMORITE MANAGEMENT GROUP, LLC; and DOES 1 through 50; Defendants, x INTRODUCTORY STATEMENT Plaintiffs LUCY WILSON-FOLDEN and ROOSEVELT FOLDEN ( Plaintiffs ), by and through their attorney BRIAN L. PONDER, ESQ., for their Complaint against Defendants MACY S RETAIL HOLDINGS, INC., MACY S, INC., GALLAGHER ELEVATOR COMPANY, INCORPORATED, THOMAS G. GRANVILLE d/b/a GALLAGHER ELEVATOR CO., INC., THE MARKETPLACE, WILMORITE INC., WILMORITE MANAGEMENT GROUP, LLC; and DOES 1 through 50 ( Defendants ), allege as follows: NATURE OF THE ACTION 1. This action arises out of Defendants negligence for failure to properly maintain and operate an escalator on its premises inside a Macy s department store that resulted in the defective escalator abruptly malfunctioning causing Plaintiff LUCY WILSON-FOLDEN to fall down the escalator steps to the landing far below, whereby she suffered serious and severe personal injuries and Plaintiff ROOSEVELT FOLDEN suffered loss of consortium. 3 3 of 10

4 VENUE 2. Venue is proper in New York County because Defendant MACY S, INC. is deemed to reside in New York County, New York by way of it listing New York County in its application for authority to do business in New York. PARTIES 3. Plaintiffs are natural persons and reside in Monroe County, New York. 4. Defendant MACY S RETAIL HOLDINGS, INC. is an active Domestic Business Corporation incorporated and existing under the laws of the State of New York. 5. Defendant MACY S RETAIL HOLDINGS, INC. may be served process via its registered agent CORPORATION SERVIE COMPANY, 80 State Street, Albany, New York Defendant MACY S, INC. is an active Foreign Business Corporation incorporated and existing under the laws of the State of Delaware and authorized to do business in the State of New York. 7. Defendant MACY S, INC. lists New York County in its application for authority to conduct business in the State of New York, where is it thus deemed to reside. 8. Defendant MACY S, INC. may be served process via its registered agent CORPORATION SERVICE COMPANY, 80 State Street, Albany, New York Defendant GALLAGHER ELEVATOR COMPANY, INCORPORATED is an inactive Domestic Business Corporation incorporated and formerly existing under the laws of the State of New York. 10. Defendant GALLAGHER ELEVATOR COMPANY, INCORPORATED is also known as and does business as GALLAGHER ELEVATOR CO., INC. 4 4 of 10

5 11. Defendant GALLAGHER ELEVATOR COMPANY, INCORPORATED became an inactive entity by dissolution by proclamation or annulment of authority on or about January 25, Defendant GALLAGHER ELEVATOR COMPANY, INCORPORATED, despite its inactive status, at all times hereinafter mentioned, did business in the State of New York. 13. Defendant GALLAGHER ELEVATOR COMPANY, INCORPORATED may be served process at 135 South Division Street, Buffalo, New York Defendant THOMAS G. GRANVILLE is a natural person. 15. At all times hereinafter mentioned, Defendant THOMAS G. GRANVILLE was doing business as ( d/b/a/ ) GALLAGHER ELEVATOR CO., INC. 16. Defendant THOMAS G. GRANVILLE, at all relevant times, was the chief executive officer of Defendant GALLAGHER ELEVATOR COMPANY, INCORPORATED. 17. Defendant THOMAS G. GRANVILLE may be served process at 135 South Division Street, Buffalo, New York Defendant THE MARKETPLACE is an active Domestic Limited Partnership formed and existing under the laws of the State of New York. 19. Defendant THE MARKETPLACE may be served process via its registered agent CT CORPORATION SYSTEM, 111 Eighth Avenue, New York, New York Defendant WILMORITE INC. is an active Domestic Business Corporation incorporated and existing under the laws of the State of New York. 21. Defendant WILMORITE INC. may be served process via its registered agent CT CORPORATION SYSTEM, 111 Eighth Avenue, New York, New York of 10

6 22. Defendant WILMORITE MANAGEMENT GROUP, LLC is an active Domestic Limited Liability Company duly organized and existing under the laws of the State of New York. 23. Plaintiffs are unaware of the true names and capacities of those sued in this action by the fictitious names of DOES 1 through 50, inclusive. Plaintiffs will amend this complaint when those names and/or capacities become known to them. Plaintiffs are informed and believe that each of the fictitiously-named defendants is in some manner responsible for the events and allegations set forth in this complaint. 24. Defendant WILMORITE MANAGEMENT GROUP, LLC may be served process via its registered agent CT CORPORATION SYSTEM, 111 Eighth Avenue, New York, New York Plaintiffs allege on information and belief that at all material times mentioned in this complaint each of the defendants was the agent, co-conspirator, and/or employee of each of the remaining defendants and, was at all times relevant, acting within the course and scope of such agency, conspiracy, and/or employment. AS AND FOR A FIRST CAUSE OF ACTION PREMISES LIABILITY/NEGLIGENCE (AGAINST ALL DEFENDANTS) 26. Plaintiffs allege and incorporate herein by reference, each and every allegation contained in paragraphs 1 through 25, inclusive of this complaint as set forth fully herein. 27. On October 31, 2013, Plaintiff LUCY WILSON-FOLDEN was an invitee inside a department store called Macy s ( Macy s or the Store ) located at The Marketplace, 20 Miracle Mile Drive, Rochester, New York (the Premises ), when she was riding up an escalator in the Store located near the Store s jewelry department when said escalator 6 6 of 10

7 without warning malfunctioned and jerked causing her to abruptly fall down onto the hard, sharp, and moving escalator steps down to the bottom of the escalator landing below. 28. The subject escalator constituted a dangerous and defective condition on the Premises. 29. Defendants negligently owned, maintained, and/or operated the subject escalator by failing to properly safeguard against the dangerous condition, or to warn Plaintiff LUCY WILSON-FOLDEN of its existence, which allowed Plaintiff LUCY WILSON-FOLDEN to fall down the escalator when it unexpectedly malfunctioned. 30. At all times hereinafter mentioned, Defendants owned, leased, operated, managed, maintained, controlled, or possessed, in whole or part, the Premises where the fall occurred. 31. On October 31, 2013, Defendants, by and through its authorized agents and/or employees, was then and there negligent in or more of the following respects: a. Careless and negligently failed to provide a reasonably safe premises for persons on the escalator; b. Carelessly and negligently failed to maintain the aforesaid escalator; c. Carelessly and negligently permitted the defective escalator to carry persons; d. Carelessly and negligently failed to warn customers of the defective escalator; e. Carelessly and negligently failed to repair the escalator after they knew or should have known that the escalator was defective presented a danger to customers in the Store; f. Carelessly and negligently failed to maintain the premises owned, leased, and/or possessed be Defendants in a good and safe condition for Plaintiff LUCY WILSON- FOLDEN and others; g. Failing otherwise to comply with the applicable laws and regulations of the State of New York and the applicable Federal laws and regulations; 7 7 of 10

8 h. Carelessly and negligently failed to exercise the degree of care required under the circumstances; and/or i. Otherwise being negligent. 32. As a direct and proximate result of the negligent conduce of Defendants, and each of them, Plaintiff LUCY WILSON-FOLDEN suffered serious and severe personal injuries, without any negligence of Plaintiff LUCY WILSON-FOLDEN contributing thereto. 33. Solely as a result of the injuries aforementioned, Plaintiff LUCY WILSON-FOLDEN has incurred damages, including: a. Medical expenses; b. Lost wages; c. She has, may, and probably will for an indefinite time in the future suffer great pain, inconvenience, embarrassment, and mental anguish; d. She has, may, and probably will for an indefinite time in the future be deprived of ordinary pleasures of life, loss of well-being, and equanimity; and e. Her overall health, strength, and vitality has been greatly impaired. AS AND FOR A SECOND CAUSE OF ACTION NEGLIGENCE PER SE (AGAINST ALL DEFENDANTS) 34. Plaintiffs allege and incorporate herein by reference, each and every allegation contained in paragraphs 1 through 33, inclusive of this complaint as set forth fully herein. 35. Defendants failure to repair and maintain the subject escalator on the Premises is a violation of the Building Code of New York Section , which mandates that repair and maintenance of conveying systems and their components shall conform to ASME A of 10

9 36. Defendants failure to comply with of the Building Code of New York constitutes negligence per se because (i) Defendants violated a statute or regulation, (ii) the statute or regulation was designed to protect some group of people from harm, (iii) Plaintiff LUCY WILSON-FOLDEN, as an invitee, is one of the class of persons for whose protection the statute or regulation was designed to protect from harm, (iv) Defendants conduct by acts or omissions proximately caused injury to Plaintiff LUCY WILSON-FOLDEN that the statute or regulation was designed to protect her, and those like her, against. AS AND FOR A THIRD CAUSE OF ACTION LOSS OF CONSORTIUM (AGAINST ALL DEFENDANTS) 37. Plaintiffs allege and incorporate herein by reference, each and every allegation contained in paragraphs 1 through 36, inclusive of this complaint as set forth fully herein. 38. Plaintiff ROOSEVELT FOLDEN is the spouse of Plaintiff LUCY WILSON-FOLDEN. 39. As a proximate result of the negligence of defendants, and each of them, suffered loss of consortium, comfort, society, and services all to his damage in an amount to be proved at time of trial. WHEREFORE, Plaintiffs LUCY WILSON-FOLDEN and ROOSEVELT FOLDEN pray for judgment against each defendant as follows: a. General damages (in excess of the jurisdictional minimum) according to proof; b. Damages for hospital, medical and nursing care and treatment according to proof; c. Damages for loss of earning and earning power according to proof; d. Damages for loss of consortium, comfort, society, and services according to proof; e. For costs of suit incurred; and f. For such other and further relief as to the Court may deem just and proper. 9 9 of 10

10 Respectfully submitted, Dated: New York, New York October 19, 2016 Brian L. Ponder, Esq. BRIAN PONDER LLP 200 Park Avenue, Suite 1700 New York, New York Telephone: (646) Facsimile: (646) (not for service) (not for service) ATTORNEY FOR PLAINTIFFS of 10