EXHIBIT
INDEX NO. E156010/2015 FILED: NIAGARA COUNTY CLERK 05/29/2015 09:59 AM NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/29/2015 STATE OF NEW YORK SUPREME COURT : COUNTY OF NIAGARA STEPHEN D. VICKI and NICOLE M. VICKl, Index No. His spouse 3980 Slusaric Road Plaintiffs designate Niagara N. Tonawanda, NY 14120 County as the place of trial vs. CITY OF NIAGARA FALLS Plaintiffs, The basis of venue is plaintiffs' residence SUMMONS 745 Main Street Plaintiffs reside at Niagara Falls, NY 14302-0069 3980 Slusaric Road CITY OF NIAGARA FALLS ENGINEERING N. Tonawanda, NY 14120 DEPARTMENT County of Niagara City Hall 745 Main Street, Room 303 Niagara Falls, NY 14302 NIAGARA FALLS WATER BOARD Water Treatment Plant 5815 Buffalo Avenue Niagara Falls, NY 14304 and NIAGARA FALLS PUBLIC WATER AUTHORITY Niagara Falls Water Board - Water Treatment Plant 5815 Buffalo Avenue Niagara Falls, NY 14304 Defendants. 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 Plaintiffs' a notice of appearance, on the Attorneys within TWENTY (20) DAYS 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.
DATED: Buffalo, New York May 28, 2015 LIPSITZ GREEN SCIME CAMBRIA LLP By: HOMAS M. MERCURE, ESQ. Attorneys for Plaintiffs Office and P.O. Address 42 Delaware Avenue, Suite 120 Buffalo, New York 14202-3924 (716) 849-1333 [TMM: #59938.0001] #1909094 59938.0001-2-
STATE OF NEW YORK SUPREME COURT : COUNTY OF NIAGARA STEPHEN D. VICKI and NICOLE M. VICKl, His spouse 3980 Slusaric Road N. Tonawanda, NY 14120 COMPLAINT Plaintiffs, Index No. vs. CITY OF NIAGARA FALLS 745 Main Street Niagara Falls, NY 14302-0069 CITY OF NIAGARA FALLS ENGINEERING DEPARTMENT City Hall 745 Main Street, Room 303 Niagara Falls, NY 14302 NIAGARA FALLS WATER BOARD Water Treatment Plant 5815 Buffalo Avenue Niagara Falls, NY 14304 and NIAGARA FALLS PUBLIC WATER AUTHORITY Niagara Falls Water Board - Water Treatment Plant 5815 Buffalo Avenue Niagara Falls, NY 14304 Defendants. Plaintiff, above named by his attorneys, LIPSITZ GREEN SCIME CAMBRIA LLP, for his Complaint against the defendants, allege: AS AND FOR A FIRST CAUSE OF ACTION, AGAINST DEFENDANTS, CITY OF NIAGARA FALLS, CITY OF NIAGARA FALLS ENGINEERING DEPARTMENT,
NIAGARA FALLS WATER BOARD AND NIAGARA FALLS PUBLIC WATER AUTHORITY THE PLAINTIFF, STEPHEN D. VICKl, ALLEGES: 1. The plaintiffs, STEPHEN D. VICKI and NICOLE M. VICKI, at all times hereinafter mentioned, were and still are residents of the City of North Tonawanda, located within the County of Niagara and the State of New York. 2. Upon information and belief, the defendant, CITY OF NIAGARA FALLS, is a municipal corporation duly organized and existing under and pursuant to the laws of the State of New York. 3. Upon information and belief, the defendant, CITY OF NIAGARA FALLS ENGINEERING DEPARTMENT, is a municipal department duly organized and existing under and pursuant to the laws of the State of New York. 4. Upon information and belief, the defendant, NIAGARA FALLS WATER BOARD, is a public benefit corporation duly organized and existing under and pursuant to the laws of the State of New York. 5. Upon information and belief, the defendant, NIAGARA FALLS PUBLIC WATER AUTHORITY, is a public benefit corporation duly organized and existing under and pursuant to the laws of the State of New York. 6. Upon information and belief, at all times hereinafter mentioned, the defendants, CITY OF NIAGARA FALLS, CITY OF NIAGARA FALLS ENGINEERING DEPARTMENT, NIAGARA FALLS WATER BOARD and NIAGARA FALLS PUBLIC WATER AUTHORITY, were the owners of a certain premises, commonly known as the -2-
Iroquois Street Tunnel located on A Street, within the City of Niagara Falls, the County of Niagara and the State of New York. 7. Upon information and belief, on or about the 26th day of November, 2014, the plaintiff, STEPHEN D. VICKl, while employed by Yarussi Construction and engaged in employment activities at the aforesaid premises, was caused to sustain serious injuries when a large piece of metal fell while being hoisted, and entered the cab of the excavator he was operating. 8. Upon information and belief, the aforesaid accident and resultant injuries were caused by the negligence, carelessness, recklessness and unlawful conduct on the part of the defendants, CITY OF NIAGARA FALLS, CITY OF NIAGARA FALLS ENGINEERING DEPARTMENT, NIAGARA FALLS WATER BOARD and NIAGARA FALLS PUBLIC WATER AUTHORITY, by their agents, servants and/or employees in the ownership of the construction site and said negligence was exhibited in, among other things, failing and omitting to ensure the plaintiff was provided with a safe and proper place in which to work, and in failing and omitting to comply with the applicable laws, rules, codes and regulations. 9. As a result of the alleged incident, the plaintiff, STEPHEN D. VICKI, sustained bodily injuries and was painfully and seriously injured, and some of the injuries may result in permanent defects; was rendered sick, sore, lame and disabled; was caused to and did seek medical aid and attention; sustained pain and suffering and shock to his nerves and nervous system; was caused to be confined to hospital, bed and home; was caused to and did incur great medical expense and may incur further medical expense; -3-
was caused to be incapacitated from his usual activities and employment and may be further incapacitated. 10. Upon information and belief, the defendants, CITY OF NIAGARA FALLS, CITY OF NIAGARA FALLS ENGINEERING DEPARTMENT, NIAGARA FALLS WATER BOARD and NIAGARA FALLS PUBLIC WATER AUTHORITY, affirmatively created the dangerous and hazardous condition complained of herein. 11. Heretofore and on or about the 13th and 14th days of January, 2015, a Notice of Claim was served on behalf of the plaintiff upon CITY OF NIAGARA FALLS, CITY OF NIAGARA FALLS ENGINEERING DEPARTMENT, NIAGARA FALLS WATER BOARD and NIAGARA FALLS PUBLIC WATER AUTHORITY, in duplicate, which Notice of Claim sets forth the name and post office address of STEPHEN D. VICKI and NICOLE M. VICKl, claimants, the name and post office address of his attorneys, the nature of the claim, the time when, the place where and the manner in which the claim arose, together with the items of damages and injuries then known to exist, and the said Notice of Claim was served upon defendants, CITY OF NIAGARA FALLS, CITY OF NIAGARA FALLS ENGINEERING DEPARTMENT, NIAGARA FALLS WATER BOARD and NIAGARA FALLS PUBLIC WATER AUTHORITY, within ninety (90) days of the date upon which the claim rose. At least thirty (30) days have elapsed since the service of the Notice of Claim as aforesaid, and defendants, CITY OF NIAGARA FALLS, CITY OF NIAGARA FALLS ENGINEERING DEPARTMENT, NIAGARA FALLS WATER BOARD and NIAGARA FALLS PUBLIC WATER AUTHORITY, have failed and neglected to adjust or pay the said claim. -4-
12. This action falls within one or more of the exceptions set forth in CPLR 1602. 13. As a result of the foregoing, the plaintiff has sustained general and special damages in an amount that exceeds the jurisdictional limits of all lower courts which would otherwise have jurisdiction. AS AND FOR A SECOND CAUSE OF ACTION, AGAINST THE DEFENDANTS, CITY OF NIAGARA FALLS, CITY OF NIAGARA FALLS ENGINEERING DEPARTMENT, NIAGARA FALLS WATER BOARD AND NIAGARA FALLS PUBLIC WATER AUTHORITY, THE PLAINTIFF, STEPHEN D. VICKI, ALLEGES: 14. Repeats, reiterates and realleges each and every allegation contained in paragraphs "1" through "13" of this Complaint with the same force and effect as if fully set forth herein. 15. Upon information and belief, the defendants, CITY OF NIAGARA FALLS, CITY OF NIAGARA FALLS ENGINEERING DEPARTMENT, NIAGARA FALLS WATER BOARD and NIAGARA FALLS PUBLIC WATER AUTHORITY, by their agents, servants and/or employees, as owner of the subject premises at the construction site, violated the Labor Law of the State of New York, the Industrial Code of the State of New York and the Federal Occupational Safety and Health Act, and the regulations and standards promulgated thereunder, and all other applicable provisions, statutory laws, regulations and rules, both of the State of New York and the United States, thereby rendering the defendants statutorily and absolutely liable to the plaintiff. -5-
16. As a result of the foregoing, the plaintiff has sustained general and special damages in an amount that exceeds the jurisdictional limits of all lower courts which would otherwise have jurisdiction. AS AND FOR A THIRD CAUSE OF ACTION, AGAINST DEFENDANTS, CITY OF NIAGARA FALLS, CITY OF NIAGARA FALLS ENGINEERING DEPARTMENT, NIAGARA FALLS WATER BOARD AND NIAGARA FALLS PUBLIC WATER AUTHORITY, THE PLAINTIFF, NICOLE M. VICKI, ALLEGES: 17. Repeats, reiterates and realleges each and every allegation contained in paragraphs "1" through "16" of this Complaint with the same force and effect as if fully set forth herein. 18. At all times hereinafter mentioned, the plaintiff, NICOLE M. VICKl, was the spouse of the plaintiff, STEPHEN D. VICKI, and was entitled to his services, society, consortium and companionship. 19. Upon information and belief, as a result of the aforesaid incident, the plaintiff, NICOLE M. VICKl, was deprived of the services, society, consortium and companionship of her spouse. 20. Upon information and belief, as a result of the aforesaid incident, the plaintiff, NICOLE M. VICKl, was caused to and did incur great medical expense and may incur further medical expense for the care and treatment of her spouse. 21. As a result of the foregoing, the plaintiff has sustained general and special damages in an amount that exceeds the jurisdictional limits of all lower courts which would otherwise have jurisdiction. -6-
WHEREFORE, the plaintiffs demand judgment against the defendants, CITY OF NIAGARA FALLS, CITY OF NIAGARA FALLS ENGINEERING DEPARTMENT, NIAGARA FALLS WATER BOARD and NIAGARA FALLS PUBLIC WATER AUTHORITY, either jointly or severally, in the First Cause of Action in an amount that exceeds the jurisdictional limits of all lower courts which would otherwise have jurisdiction; in the Second Cause of Action in an amount that exceeds the jurisdictional limits of all lower courts which would otherwise have jurisdiction; in the Third Cause of Action in an amount that exceeds the jurisdictional limits of all lower courts which would otherwise have jurisdiction; and for such other, further or different relief as the Court may deem just and proper, together with the costs and disbursements of the action. DATED: Buffalo, New York May 28, 2015 LIPSIT EEN SCIME CAMBRIA LLP By: THOMAS M. MERCURE, ESQ. Attorneys for Plaintiffs Office and P.O. Address 42 Delaware Avenue, Suite 120 Buffalo, New York 14202-3924 (716) 849-1333 [TMM: #59938.0001] #1909096 59938.0001-7-