FILED: BRONX COUNTY CLERK 02/14/ :36 PM INDEX NO /2014E NYSCEF DOC. NO. 269 RECEIVED NYSCEF: 02/14/2017

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3 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX X SAID VENTURA LUNA, Infant-Plaintiff by his mother and natural guardian, YOHANNY LUNA, JEISON BRYAN VENTURA, Infant-Plaintiff by his mother and natural guardian, CRISTINA MARIA PARRA, and ESTATE OF ANTHONY VENTURA MOLINA, Index No.: 23835/2014E SUPPLEMENTAL SUMMONS Plaintiffs, Plaintiffs designate Bronx County as the place of trial based on Plaintiff Said Ventura Luna's place of residence. PBM, LLC d/b/a PERFECT BUILDING MAINTENANCE, RFR REALTY, LLC, RFR HOLDING LLC, 345 PAS OWNER, LLC, and RFR HOLDING CORPORATION, -against- Defendants X PBM, LLC d/b/a PERFECT BUILDING MAINTENANCE, Third-party Plaintiff, -against- GEO WINDOW CLEANING, INC. d/b/a MARY AL BUILDING MAINTENANCE, Third-party Defendant X To the above named defendants PBM, LLC d/b/a Perfect Building Maintenance, RFR Realty, LLC, RFR Holding LLC, 345 Pas Owner, LLC and RFR Holding Corporation: 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(s) within 20 days after the service ofthis 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 ofnew York); and in the 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 March 24, 2016 THE BOSTANY LAW FIRM, PLLC BY: Roman Popov, Esq. Attorneys for Plaintiffs 200 Vesey Street, Floor New York, New York (212) of 20

4 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX X SAID VENTURA LUNA, Infant-Plaintiff by his mother and natural guardian, YOHANNY LUNA, JEISON BRYAN VENTURA, Infant-Plaintiff by his mother and natural guardian, CRISTINA Index No.: 23835/2014E MARIA PARRA, and ESTATE OF ANTHONY VENTURA MOLINA, FIRST AMENDED COMPLAINT Plaintiffs, PBM, LLC d/b/a PERFECT BUILDING MAINTENANCE, RFR REALTY, LLC, RFR HOLDING LLC, 345 PAS OWNER, LLC, and RFR HOLDING CORPORATION, Defendants X PBM, LLC d/b/a PERFECT BUILDING MAINTENANCE, -against- -against- Third-party Plaintiff, GEO WINDOW CLEANING, INC. d/b/a MARY AL BUILDING MAINTENANCE, Third-party Defendant X Infant-Plaintiffs JEISON BRYAN VENTURA and SAID VENTURA LUNA, residing in the State of New York, and the ESTATE OF ANTHONY VENTURA MOLINA, by their attorneys, THE BOST ANY LAW FIRM PLLC, bring this First Amended Complaint against Defendants, alleging as follows: 1 4 of 20

5 PARTIES 1. At all times relevant hereto, the Plaintiff, SAID VENTURA LUNA ("SAID") was and is an infant residing in Bronx, NY with his mother and natural guardian YOHANNY LUNA. 2. At all times relevant hereto, the Plaintiff, JEISON BRYAN VENTURA ("BRYAN") was and is an infant residing in the Dominican Republic with his mother and natural guardian CRISTINA MARIA PARRA. 3. At all times hereto, Infant-Plaintiffs SAID and BRYAN were and are the minor children of ANTHONY VENTURA MOLINA ("MOLINA"). 4. On March 18,2016, RANDY VARGAS REYES was granted Letters of Limited Administration by the Bronx Surrogate's Court, to act as a fiduciary and perform all acts requisite to the proper administration and disposition of the ESTATE OF ANTHONY VENTURA MOLINA (the "ESTATE"). 5. At all times relevant hereto, the Defendant, and Third-party PlaintiffPBM, LLC d/b/a PERFECT BUILDING MAINTENANCE ("PBM") was a New York Limited Liability Company with an office at 360 Lexington Avenue, 2nd Floor, New York, NY At all times relevant hereto, the Defendant, RFR HOLDING CORPORATION ("RFR CORP") was a Delaware Corporation authorized to do business in New York with an office at 390 Park Avenue, 3rd Floor, New York, NY At all times relevant hereto, the Defendant, RFR REALTY, LLC ("RFR REALTY") was a New York Limited Liability Company. 8. At all times relevant hereto, the Defendant, RFR HOLDING LLC ("RFR HOLDING") was a New York Limited Liability Company. 2 5 of 20

6 9. At all times relevant hereto, the Defendant, 345 PAS OWNER LLC ("PAS") was a Delaware Limited Liability Company authorized to do business in New York. 10. At all times relevant hereto, the Third-party Defendant, GEO WINDOW CLEANING, INC., d/b/a MARVAL BUILDING MAINTENANCE ("GEO") was a New York Corporation with a principal place of business at 27 Manor Lane, Verplanck, New York, PBM, RFR CORP, RFR REALTY, RFR HOLDING and PAS shall be referred to collectively as DEFENDANTS. FACTUAL ALLEGATIONS 12. That at all times hereto, PAS was the owner of the approximately 12 story building located at 345 Park Avenue South, New York, NY (hereinafter "the premises"). 13. That at all times hereto, PAS was the lessee of the said premises. 14. That at all times hereto, RFR HOLDING was the owner of the said premises. 15. That at all times hereto, RFR HOLDING was the lessee of the said premises. 16. That at all times hereto, RFR REALTY was the building management company for the said premises. 17. That at all times hereto, RFR HOLDING was the parent company and affiliate of RFR CORP. 18. That at all times hereto, RFR CORP was a subsidiary and affiliate of RFR HOLDING. 19. That at all times hereto, PAS controlled the said premises. 20. That at all times hereto, RFR HOLDING controlled the said premises. 21. That at all times hereto, RFR REALTY controlled the said premises. 22. That at all times hereto, RFR CORP controlled the said premises. 23. That at all times hereto, PAS managed the said premises. 24. That at all times hereto, RFR HOLDING managed the said premises. 3 6 of 20

7 25. That at all times hereto, RFR REALTY managed the said premises. 26. That at all times hereto, RFR CORP managed the said premises. 27. That at all times hereto, PAS occupied the said premises. 28. That at all times hereto, RFR HOLDING occupied the said premises. 29. That at all times hereto, RFR REALTY occupied the said premises. 30. That at all times hereto, RFR CORP occupied the said premises. 31. That at all times hereto, PAS was a tenant at the said premises. 32. That at all times hereto, RFR HOLDING was a tenant the said premises. 33. That at all times hereto, RFR REALTY was a tenant the said premises. 34. That at all times hereto, RFR CORP was a tenant at the said premises. 35. That on or about July 3, 2014 RFR CORP acted as general contractor of certain labor, construction, and/or alterations at the said premises. 36. That on or about July 3, 2014 PBM acted as general contractor of certain labor, construction, and/or alterations at the said premises. 37. That on July 3, 2014 and prior thereto PBM had a subcontract with Geo Window Cleaning, Inc. d/b/a Marva! Building Maintenance for window cleaning work to be performed at the said premises. 38. On July 3, 2014, MOLINA was employed by Geo Window Cleaning, Inc., as a window cleaner and lawfully at the said premises. 39. On July 3, 2014, while cleaning a window on the 4 1 h floor of the said premises, MOLINA fell four stories to the concrete sidewalk below. 4 7 of 20

8 AS FOR THE FIRST CAUSE OF ACTION DEFENDANTS ARE IN VIOLATION OF NY LABOR LAW 240(1) 40. The Plaintiffs repeat, reiterate and re-allege each and every allegation contained in paragraphs "1" through "39" inclusive of this complaint, with the same force and effect as if fully set forth at length herein. 41. On or before July 3, 2014, DEFENDANTS, their agents, servants and/or employees, directed, ordered, controlled, supervised and requested the manner and method of the use of the mateiials, supplies and equipment in connection with the window cleaning, labor, construction, and/or alterations of the premises. 42. That at all times mateiial hereto, DEFENDANTS, their agents, servants, and/or employees, were in control, supervised, directed, managed and took charge of labor, window cleaning and/or work being performed at the premises. 43. That at all times mateiial hereto, DEFENDANTS employed supeiintendents, foremen, supervisors and/or other agents, servants, and/or employees, in connection with the window cleaning, labor, construction and/or alterations of the premises. 44. That at all times material hereto, DEFENDANTS, their agents, servants, and/or employees performed work, labor, and services affecting the premises. 45. That at all times mateiial hereto, DEFENDANTS, their agents, servants, and/or employees, authoiized and/or performed work, labor and services including but not limited to maintenance, installation, construction, services and window cleaning at the prerruses. 46. DEFENDANTS, their agents, servants, and/or employees, owned, supervised, managed, controlled, maintained and operated the equipment at the premises including but not 5 8 of 20

9 limited to the windows, safety harness, ladders, lanyards, netting, anchor points, static lines, lifelines, stanchions, safety cables, beam buddies, yo-yo's, and safety netting, etc. 47. DEFENDANTS, their agents, servants, and/or employees decided against installation of scaffolding as fall protection for MOLINA and others. 48. DEFENDANTS, their agents, servants, and/or employees neglected to train MOLINA and others on fall protection and use of the safety harness. MOLINA was not instructed to tie off the harness, was not told that he was expected to be secured nor instructed on how to connect the harness to this particular premises. 49. DEFENDANTS, their agents, servants, and/or employees, neglected to install anchor points so that the safety harness could be attached to the building to protect MOLINA and others from falling. 50. On said date, MOLINA was cleaning the windows at the premises. 51. On said date, MOLINA was performing the window cleaning at an elevated height. 52. On said date, MOLINA was performing the window cleaning at roof level. 53. On said date, MOLINA was performing the window cleaning from height in a dangerous and hazardous manner. 54. DEFENDANTS had a duty to provide MOLINA with safety devices to properly protect him while he was working at an elevated height at the premises. 55. The inadequate safety harness provided to MOLINA was not properly hooked to a proper anchor point on said building. 56. The inadequate safety harness did not provide proper fall protection to MOLINA. 57. DEFENDANTS failed to provide proper instruction and training regarding the proper use of the safety harness and/or use of proper fall protection to MOLINA. 6 9 of 20

10 58. MOLINA was not instructed to tie off the harness, was not told that he was expected to be secured nor instructed on how to connect the harness to this particular premises. 59. DEFENDANTS failed to provide any fall protection and/or provided an inadequate safety harness to MOLINA; and/or failed to provide any instruction and/or training of use of the safety harness and proper fall protection, further failed to provide a window washing rig; failed to provide the proper scaffolding and safety devices and/or equipment at the premises including but not limited to safety harness, hooks, window cleaning rig, ladders, lanyards, netting, anchor points, static lines, lifelines, stanchions, safety cables, beam buddies, yo-yo's, and safety netting, etc. 60. On or before the aforementioned date, DEFENDANTS knew, or should have known, that the safety harness provided to MOLINA, was not hooked to a proper anchor point to give proper fall protection to MOLINA, and/or was not constructed as to give proper fall protection to MOLINA. 61. On said date, MOLINA was performing work at the premises. 62. MOLINA was performing work at the premises at the direction of DEFENDANTS. 63. MOLINA was performing work at the premises under the supervision of DEFENDANTS. 64. MOLINA was performing work at the premises under the control of DEFENDANTS. 65. On the aforesaid date, while MOLINA was performing window cleaning with an inadequate safety harness which was not hooked to an anchor point, MOLINA was caused to fall from the 4 1 h floor of said building. 66. MOLINA was using the inadequate safety harness pursuant to the direction, authority, supervision, consent, acquiescence and/or control of DEFENDANTS of 20

11 67. That at all times herein mentioned, the premises, in the County of New York, in the City and State of New York, were not a one (1) or a two (2) family dwelling. 68. That on said date, MOLINA was a person employed and was entitled to proper protection within the meaning, definition and coverage of the Labor Law of the State of New York, Section 240(1). 69. As a result of the fall, and DEFENDANTS' NY Labor Law violations, MOLINA was caused conscious pain and suffering. 70. As a result of the fall, and DEFENDANTS' NY Labor Law violations, MOLINA was severely and fatally injured. AS FOR THE SECOND CAUSE OF ACTION DEFENDANTS ARE IN VIOLATION OF NY LABOR LAW 241(6) 71. The Plaintiffs repeat, reiterate and re-allege each and every allegation contained in paragraphs "1" through "70" inclusive of this complaint, with the same force and effect as if fully set forth at length herein. 72. The occurrence of the aforesaid accident was caused solely and wholly by reason of the negligence, carelessness and recklessness of DEFENDANTS, their contractors, agents and employees who were negligent in the ownership, operation, management and control of the aforesaid premises; while MOLINA was lawfully performing his duties he was caused to fall, sustaining serious and severe injuries and death. 73. DEFENDANTS failed to ensure that MOLINA was provided with scaffolding that was properly constructed, placed, operated and maintained; further failed to provide elevated decking that was properly constructed, placed, welded, operated and secured; further failed to provide a window washing rig; further failed to ensure that MOLINA was 8 11 of 20

12 provided and instructed with proper fall protection, proper safety harness and anchor points, static lines, lifelines, stanchions, safety cables, beam buddies, yo-yo's, lanyards, retractable, and other safety devices; further failed to provide safety netting thereat; further, allowed water, ice, grease and other foreign substances to be and remain in the immediate work area, causing severe slipping hazards; further failed to properly remove, dangerous and hazardous slippery conditions causing MOLINA to slip, sustaining serious and severe injuries; further failed to have safety netting thereat. 74. DEFENDANTS further violated Sections 200, 240 and 241(6) of the Labor Law of the State of New York, Rule 23 of the Industrial Code of the State of New York specifically, but not limited to, , , , , ,23-2.1, ,23-5,23-6, and further violated article 1926 of O.S.H.A., and were otherwise generally negligent, careless and reckless, causing MOLINA to sustain serious and severe injuries. 75. MOLINA was not instructed to tie off the harness, was not told that he was expected to be secured nor instructed on how to connect the harness to this particular premises. 76. MOLINA was free from Comparative fault. 77. MOLINA was not the sole proximate cause of his injuries and/or death. 78. That DEFENDANTS owed MOLINA and absolute and non-delegable duty and for the breach of which DEFENDANTS are absolutely liable to MOLINA. 79. That on said date, MOLINA was a person employed and was entitled to proper protection within the meaning, definition and coverage of the Labor Law of the State of New York, Section 241(6). 80. As a result of the fall, and DEFENDANTS' NY Labor Law violations, MOLINA was caused conscious pain and suffering of 20

13 81. As a result of the fall, and DEFENDANTS' NY Labor Law violations, MOLINA was severely and fatally injured. AS FOR THE THIRD CAUSE OF ACTION DEFECTIVE CONDITION AT PREMISES IN VIOLATION OF NY LABOR LAW The Plaintiffs repeat, reiterate and re-allege each and every allegation contained in paragraphs "1" through "81" inclusive of this complaint, with the same force and effect as if fully set forth at length herein. 83. Upon information and belief, the aforementioned window cleaning, labor, construction and/or renovation were and are subject to the provisions of the Labor Law of the State of New York and subject to the provisions of the Industrial Code of rules of the Board of Standards and Appeals of the Department of Labor of the State of New York. 84. That the inadequate safety harness, was not hooked to a proper anchor point to give proper protection to MOLINA while working at an elevated height, and/or was not constructed as to give proper fall protection to MOLINA so as to be a dangerous or defective condition at the premises, and MOLINA was not instructed to tie off the harness, was not told that he was expected to be secured nor instructed on how to connect the harness to this particular premises. 85. On said date, MOLINA fell off the floor of the subject building as a result of its dangerous or defective condition at the premises described herein. 86. On or before the aforementioned date, DEFENDANTS created or caused to be created the dangerous or defective condition at the premises described herein, in violation of the aforementioned rules and regulations including, but not limited to Section 200 of the of 20

14 Labor Law of the State of New York, all of which caused the accident and the injuries suffered by MOLINA as aforesaid. 87. On or before the aforementioned date, DEFENDANTS had actual or constructive notice that the safety harness was not hooked to a proper anchor point to give proper fall protection to MOLINA, and/or was not constructed as to give proper fall protection to MOLINA, in violation of the aforementioned rules and regulations including, but not limited to Section 200 of the Labor Law of the State of New York, all of which caused the accident and the injuries suffered by MOLINA as aforesaid. AS FOR THE FOURTH CAUSE OF ACTION DANGEROUS MANNER OF WORK IN VIOLATION OF NY LABOR LAW The Plaintiffs repeat, reiterate and re-allege each and every allegation contained in paragraphs "1" through "87" inclusive of this complaint, with the same force and effect as if fully set forth at length herein. 89. Upon information and belief, the aforementioned repair work, labor, construction and/or renovation which was performed pursuant to the aforesaid contracts was and is subject to the provisions of the Labor Law of the State of New York and subject to the provisions of the Industrial Code of rules of the Board of Standards and Appeals of the Department of Labor of the State of New York. 90. MOLINA was on the ladder pursuant to the direction, authority, supervision and/or control of DEFENDANTS. 91. That DEFENDANTS were responsible for the manner in which MOLINA's work at the premises was performed of 20

15 92. That by reason of the matters herein alleged, DEFENDANTS failed to furnish MOLINA with a reasonably safe place to work at an elevated height; failed to furnish safe, proper and reasonable protection for the safety, health and life of MOLINA, and other persons, lawfully employed in and about the premises; and violated certain of the aforementioned rules and regulations including, but not limited to Section 200 of the Labor Law of the State of New York, all of which caused the accident, the injuries and ultimate death suffered by MOLINA as aforesaid. AS AND FOR A FIFTH CAUSE OF ACTION COMMON LAW NEGLIGENCE 93. The Plaintiffs repeat, reiterate and re-allege each and every allegation contained in paragraphs "1" through "92" inclusive ofthis complaint, with the same force and effect as if fully set forth at length herein. 94. The fall off the 4th floor of said building and the resulting injuries and death to MOLINA were a result of the negligence, carelessness, and recklessness of DEFENDANTS, their agents, servants and/or employees in the negligent and careless manner in which they performed their work on said premises; in the negligent, dangerous and defective conditions existing thereat; in the negligent ownership, operation, supervision, direction, inspection, reparation, management and control of the maintenance work being performed at said premises. 95. MOLINA's fall off the 4th floor of said building was caused solely by the negligence of DEFENDANTS, their agents, servants and/or employees without any negligence on the part of MOLINA contributing thereto. 96. That as a result of the foregoing, MOLINA sustained serious severe and fatal injuries and can no longer provide for his infant children of 20

16 AS AND FOR A SIXTH CAUSE OF ACTION LOSSOFSUPPORT-BRYAN 97. The Plaintiffs repeat, reiterate and re-allege each and every allegation contained in paragraphs "1" through "96" inclusive of this complaint, with the same force and effect as if fully set forth at length herein. 98. BRYAN VENTURA was born on October 27, MOLINA cared for and supported BRYAN in an emotional, physical and financial capacity on a regular basis BRYAN VENTURA has suffered, and in the future will continue to suffer, grievous pain, suffering, anguish, damage and loss, including, but not limited to, loss of aid, companionship, society, care and consortium as a consequence of the death of his father. AS AND FOR A SEVENTH CAUSE OF ACTION LOSS OF SUPPORT - SAID 101. The Plaintiffs repeat, reiterate and re-allege each and every allegation contained in paragraphs "1" through "100" inclusive of this complaint, with the same force and effect as if fully set forth at length herein SAID was born on October 11, MOLINA cared for and supported SAID in an emotional, physical and financial capacity on a regular basis SAID has suffered, and in the future will continue to suffer, grievous pain, suffering, anguish, damage and loss, including, but not limited to, loss of aid, companionship, society, care and consortium as a consequence of the death of his father of 20

17 105. The aforementioned action falls within one or more ofthe exceptions to CPLR Section WHEREFORE, Plaintiffs demand judgment against the Defendants jointly, severally and alternatively for compensatory damages, punitive damages and any other damages as allowed by law together with interest, costs and fees. JURY TRIAL Plaintiffs hereby demand a trial by jury as to all issues. Dated: New York, New York March 24, 2016 THE BOSTANY LAW FIRM PLLC By: Roman Popov, Esq. Attorneys for Plaintiffs 200 Vesey Street, Floor New York, New York (212) of 20

18 ATTORNEY'S VERIFICATION ROMAN POPOV, an attorney admitted to practice in the courts ofnew York State, hereby affirms under penalty of perjury that: I am the attorney for the Plaintiffs in the within action; I have read the foregoing First Amended Complaint and know the contents thereof and the same is true to my own knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matters I believe it to be true based upon documents in the file and investigation. The reason this verification is made by me and not by Said Ventura Luna and Jeison Bryan Ventura is because the Infant-Plaintiffs, as well as their natural guardians, Y ohanny Luna and Christina Maria Parra, reside in counties other than the one in which I maintain my office. Dated: New York, New York March 24, 2016 Roman Popov, Esq. Attorney for Plaintiffs 18 of 20

19 VERIFICATION STATEOFNEWYORK ) ) ss.: BRONX COUNTY ) RANDY VARGAS REYES, being duly sworn deposes and says: 1. I am the administrator of the ESTATE OF ANTHONY VENTURA MOLINA. 2. I have read the amended complaint herein and know the contents thereof. The same is true to my knowledge except as to the matters stated to be alleged on information and belief and as to those matters I believe them to be true. Sworn to before me this 24th day of March, of ~ XVd gz: TT 9TOZ/tZ/r.O

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