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[FILED: KINGS COUNTY CLERK 02/21/2017 04:12 PM] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS SELVIN ESPINAL RODRJGUEZ, -against- Plaintiff, 91 & 95 28TH STREET, JACKSON HEIGHTS, IN CORPORA TED, and DNA CONTRACTING LLC, Defendants. Index No. 514631/2016 SUMMONS Defendants/Third-party plaintiffs designate Kings County as the basis of trial. The basis of venue is Plaintiff's Residence Third-Party Index No.: _ DNA CONTRACTING LLC X -against- JG RESTORATION, LLC Defendant/Third-party Plaintiff Third-party Defendant. TO THE ABOVE NAMED THIRD-PARTY DEFENDANT(S): 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 third-party plaintiffs attorney(s) within twenty (20) clays after the service of this summons, exclusive of the day of service (or within thirty (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. 484J-84J9-4J07v. I 1 of 9
[FILED: KINGS COUNTY CLERK 02/21/2017 04:12 PMJ Dated: Newark, NJ February 21, 2017 Yours, etc., LANDMAN C 1 RSI BAL)LAH;J:,f /)RD P.C. I I I ( / By:., I Geral_, 1 Attorneys for Defendant/Third-Party plaintiff DNA Contracting LLC One Gateway Center 4 111 Floor Newark, NJ 07102 T. (973) 623-2700 F. (973) 623-4496 - and - 120 Broadway, 27 111 Floor New York, NY 10271 T. (212) 23 8-4800 F. (212) 238-4848 TO: JG Restoration LLC 126 Main Street Newark, NJ 07105 David M. Hoffman, Esq. Wingate, Russotti, Shapiro & Halperin, LLP Attorneys for Plaintiff 420 Lexington Avenue, Suite 2750 New York, NY I 0170 Kimberly Miller, Esq. Morris Duffy Alonso & Faley Attorneys for Defendant 91-95 28th Street Jackson Heights, Inc. Two Rector Street, 22nd floor New York, NY 10016 4843-84J9-4J07v. I 2 2 of 9
!FILED: KINGS COUNTY CLERK 02/21/2017 04:12 PM] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS SEL VIN ESPINAL RODRIGUEZ, Index No. 514631/2016 Plaintiff, -against- 91 & 95 28TH STREET, JACKSON HEIGHTS, INCORPORATED, and DNA CONTRACTING LLC, Defendants. VERIFIED THIRD PARTY COMPLAINT Third-Party Index No.: _ DNA CONTRACTING LLC X -against- JG RESTORATION, LLC Defendant/Third-party Plaintiff Third-party Defendant. Defendant/third-party plaintiff DNA Contracting LLC ("DNA"), as its third party complaint against third-party defendant JG Restoration, LLC ("JG"), upon information and belief, alleges: I. JG was and still is a domestic or foreign limited liability company doing business in the State of New York. 2. On or about August 19, 2016, plaintiff Selvin Espinal Rodriguez commenced the underlying action in the Supreme Court of the State of New York, Kings County, by the filing of a Verified Complaint. Annexed hereto as Exhibit "A", and incorporated herein by reference, without admitting the truth of any of the allegations therein and without prejudice to the interests of DNA, is a true copy of plaintiffs Verified Complaint. 3 of 9
!FILED: KINGS COUNTY CLERK 02/21/2017 04:12 PM] 3. Plaintiff, in his verified complaint, seeks to obtain monetary damages for personal injuries allegedly sustained on April I, 2016 at or near 37-12 85th Street, Jackson Heights NY ("the premises"), because of the alleged negligence or fault of the defendants, including DNA. 4. On January 6, 2017, DNA filed a verified answer to plaintiffs verified complaint, a true copy of which is annexed hereto as Exhibit "B". 5. On January 13, 2017, DNA filed an amended answer to plaintiffs verified complaint, a true copy of which is annexed hereto as Exhibit "C". 6. In his complaint, plaintiff alleges that at the time of his accident he was employed by JG and acting within the scope of his employment by JG, which was a contractor working at the premises. Exhibit "A" at~~ 54-56. 7. At all relevant times herein, JG was working as a subcontractor at the premises, pursuant to a written contract with DNA Contracting LLC ("the subcontract"). 8. The subcontract was, at all relevant times, in full force and effect, and was legally binding upon JG. 9. Pursuant to that subcontract, JG did furnish and was compensated for certain labor, supervision, and services it provided at the premises on the date of plaintiffs accident. AS AND FOR A FIRST CAUSE OF ACTION CONTRIBUTION I 0. DNA repeats and realleges each and every allegation set forth in paragraphs I through 9 inclusive, with the same force and effect as though the same were herein fully set forth at length. 2 4 of 9
[FILED: KINGS COUNTY CLERK 02/21/2017 04:12 PM] 11. If DNA is found liable to plaintiff or others in this action, such liability is the result, either wholly or in part, of the negligence, acts and omissions of JG, thereby entitling DNA to contribution from JG for such liability. 12. By reason of the foregoing, JG will be liable to DNA in the event judgment is recovered by plaintiff or others in the amount of that judgment or in an amount equal to the excess over and above DNA's equitable share of such judgment. The equitable shares of any judgment recovered by plaintiff or others are to be determined in accordance with the relative culpability of the parties. AS AND FOR A SECOND CAUSE OF ACTION (COMMON LAW INDEMNITY) 13. DNA repeats and realleges each and every allegation set forth in paragraphs I through 12 inclusive, with the same force and effect as though the same were herein fully set forth at length. 14. DNA has been named as a defendant in a verified complaint alleging, inter alia, that it is liable with respect to plaintiffs accident. 15. While denying any and all liability with respect to any claims against it, if in fact any liability is established, DNA was not at fault, was not morally culpable, and any liability on its part, which is denied, could only be technical, vicarious or secondary to the liability of JG. As such, DNA is entitled to common law indemnity from JG. 3 5 of 9
[FILED: KINGS COUNTY CLERK 02/21/2017 04:12 PM] AS AND FOR A THIRD CAUSE OF ACTION (CONTRACTUAL INDEMNIFICATION) 16. DNA repeats and realleges each and every allegation set forth in paragraphs through 15 inclusive, with the same force and effect as though the same were fully set forth at length. 17. Pursuant to the subcontract, JG is contractually obligated to indemnify and save DNA and others harmless from all liability and expenses for claims arising out of or resulting from performance of the work by JG. I 8. By reason of the foregoing facts and circumstances, in the event that plaintiff or others obtain a settlement or judgment in this action against DNA, JG will be liable under the subcontract to DNA for the full amount of such recovery or judgment, as well as DNA's reasonable attorneys' fees and costs in this action. AS AND FOR A FOURTH CAUSE OF ACTION (BREACH OF CONTRACT - FAILURE TO PROCURE INSURANCE) I 9. DNA repeats and realleges each and every allegation set forth in paragraphs through 18 inclusive, with the same force and effect as though the same were fully set forth at length. 20. Pursuant to subcontract, JG was required to name DNA and others as additional insureds on its commercial general liability policy. 2 I. JG breached the agreement by failing to obtain the requisite additional insured coverage for DNA and others. 22. If plaintiff or others obtain any settlement or judgment against DNA, it will have been caused by reason of JG's breach of subcontract. 4 6 of 9
[FILED: KINGS COUNTY CLERK 02/21/2017 04:12 PM] 23. By reason of the foregoing facts and circumstances, in the event that plaintiff or others recover a settlement or judgment in this action against DNA, JG will be liable under the subcontract to DNA for the full amount of such recovery or judgment, as well as DNA's reasonable attorneys' fees and costs in this action. AS AND FOR A FIFTH CAUSE OF ACTION (BREACH OF CONTRACT) 24. Pursuant to the subcontract, JG had a contractual duty to perform its obligations under the subcontract in a proper manner. 25. Jf DNA is held liable to plaintiff or others in this action, such liability is the result of JG's breach of its obligation to perform its work in a proper manner. 26. By reason of the foregoing agreement, in the event that plaintiff or others recover a settlement or judgment in this action against DNA, JG will be liable to DNA for such settlement or judgment, as well as DNA's reasonable attorneys' fees and costs in this action. WHEREFORE, DNA demands judgment over and against JG on all causes of action herein, together with its costs and disbursements, and such other and further relief as this Court deems appropriate. Dated: Newark, NJ February 21, 2017 Yours, etc., LANDMAN CORSI BALLAINE & FORD P.C. By: Isl Gerald T. Ford Gerald T. Ford Attorneys for Defendant/Third-Party plaintiff DNA Contracting LLC One Gateway Center 4 th Floor Newark, NJ 07102 T. (973) 623-2700 F. (973) 623-4496 5 7 of 9
[FILED: KINGS COUNTY CLERK 02/21/2017 04:12 PM] - and - 120 Broadway, 27 th Floor New York, NY 10271 T. (212) 238-4800 F. (212) 238-4848 TO: JG Restoration LLC 126 Main Street Newark, NJ 07105 David M. Hoffman, Esq. Wingate, Russotti, Shapiro & Halperin, LLP Attorneys for Plaintiff 420 Lexington A venue, Suite 2750 New York, NY 10170 Kimberly Miller, Esq. Morris Duffy Alonso & Faley Attorneys for Defendant 91-95 28th Street Jackson Heights, Inc. Two Rector Street, 22nd floor New York, NY 10016 6 8 of 9
!FILED: KINGS COUNTY CLERK 02/21/2017 04:12 PM] VERIFICATION Gerald T. Ford, being duly sworn, deposes and says that: He is an attorney of the firm of Landman Corsi Ballaine & Ford P.C., attorneys for defendant/third-party plaintiff DNA Contracting, LLC ("defendant") in the above-captioned action. He states that he has read the foregoing third-party complaint and notes the contents thereof, and that the same is true to his own knowledge, except as to those matters herein stated to be alleged on information and belief and that as to those matters he believes it to be true. The source of deponent's information and the grounds of his belief are communications with defendant and a review of the file maintained by his office for this action. The reason this verification is made by deponent and not by defendant is that defendant's principal place of business is located outside the county where deponent maintains his law office. Dated: February 21, 2017 Newark, NJ Isl Gerald T. Ford Gerald T. Ford 7 9 of 9