Preview
FILED: SARATOGA COUNTY CLERK 09/02/2022 10:22 AM INDEX NO. EF20221929
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/02/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SARATOGA
---------------------------------------------------------------------- X Index No.:
INDEMNITY INSURANCE COMPANY OF NORTH
AMERICA, as assignee of TONI MIDDLETON,
Assignor, Date Filed:
Plaintiff(s),
SUMMONS
- against -
Venue is Proper in
WILTON SQUARE ASSOCIATES, L.L.C. and WSA Saratoga County,
WILTON, L.L.C, Place of Accident
Defendant(s),
----------------------------------------------------------------------- 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, on the plaintiff's attorney within 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.
In case of your failure to appear or answer, judgment will be taken against you by default
for the relief demanded in the complaint, together with the cost of this action.
Dated: Hicksville, New York
September 1st, 2022
____________________________________
Kevin Fitzpatrick, Esq.
MARSCHHAUSEN & FITZPATRICK, P.C.
Attorney for Plaintiff
73 Heitz Place
Hicksville, New York 11801
(516) 747-8000
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TO: WILTON SQUARE ASSOCIATES, L.L.C.
C/O NIGRO COMPANIES,
20 CORPORATE WOODS BLVD,
ALBANY, NY, UNITED STATES, 12211
WSA WILTON LLC
C/O TRI CITY RENTALS LLC,
255 WASHINGTON AVENUE EXT.,
ALBANY, NY, UNITED STATES, 12205
SUPREME COURT OF THE STATE OF NEW YORK
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COUNTY OF SARATOGA
--------------------------------------------------------------------- X Index No.:
INDEMNITY INSURANCE COMPANY OF NORTH
AMERICA, as assignee of TONI MIDDLETON,
Assignor,
Plaintiff(s), VERIFIED COMPLAINT
-against-
WILTON SQUARE ASSOCIATES, L.L.C. and WSA
WILTON, L.L.C,
Defendant(s).
--------------------------------------------------------------------- X
Plaintiff, INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, by and
through its attorneys, MARSCHHAUSEN & FITZPATRICK, P.C, as and for its verified
complaint herein, alleges upon information and belief as follows:
1. At all times hereinafter mentioned, plaintiff, the INDEMNITY INSURANCE
COMPANY OF NORTH AMERICA is and was a corporation duly authorized to do business in
the State of New York with its principal place of business in the State of Pennsylvania.
2. At all times hereinafter mentioned, defendants WILTON SQUARE
ASSOCIATES, L.L.C. (herein after “WILTON”) was and is a corporation duly organized and
existing under and by virtue of the laws of the State of New York, with its principal place of
business in the State of New York
3. At all times hereinafter mentioned, WILTON is and was a foreign business
corporation organized and existing pursuant to the laws of the State of New York and authorized
to do business in the State of New York.
4. At all times hereinafter mentioned, defendant WILTON is and was a foreign
corporation duly authorized to do business within the State of New York.
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5. At all times hereinafter mentioned, defendant WILTON is and was a foreign
corporation and conducted business within the State of New York.
6. At all times hereinafter mentioned, defendant WILTON is and was an owner of
the premises known as 3027 Route 50, Saratoga Springs in the County of Saratoga, State of New
York (hereinafter the “PREMISES”).
7. At all times hereinafter mentioned, defendant WILTON was the lessor of the
PREMISES.
8. At all times hereinafter mentioned, defendant WILTON was the lessee of the
PREMISES.
9. At all times hereinafter mentioned, defendant WILTON operated the PREMISES.
10. At all times hereinafter mentioned, defendant WILTON controlled the
PREMISES.
11. At all times hereinafter mentioned, defendant WILTON maintained the
PREMISES.
12. At all times hereinafter mentioned, defendant WILTON managed the PREMISES.
13. At all times hereinafter mentioned, defendant WILTON, as an owner, had a non-
delegable duty to maintain the subject PREMISES in a non-negligent manner.
14. At all times hereinafter mentioned, defendant WSA WILTON, L.L.C. (herein after
“WSA”) was and is a corporation duly organized and existing under and by virtue of the laws of
the State of New York, with its principal place of business in the State of New York.
15. At all times hereinafter mentioned, WSA is and was a foreign business corporation
organized and existing pursuant to the laws of the State of New York and authorized to do business
in the State of New York.
16. At all times hereinafter mentioned, defendant WSA is and was a foreign
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corporation duly authorized to do business within the State of New York.
17. At all times hereinafter mentioned, defendant WSA is and was a foreign
corporation and conducted business within the State of New York.
18. At all times hereinafter mentioned, defendant WSA is and was an owner of the
premises known as 3027 Route 50, Saratoga Springs in the County of Saratoga, State of New
York (hereinafter the “PREMISES”).
19. At all times hereinafter mentioned, defendant WSA was the lessor of the
PREMISES.
20. At all times hereinafter mentioned, defendant WSA was the lessee of the
PREMISES.
21. At all times hereinafter mentioned, defendant WSA operated the PREMISES.
22. At all times hereinafter mentioned, defendant WSA controlled the
PREMISES.
23. At all times hereinafter mentioned, defendant WSA maintained the
PREMISES.
24. At all times hereinafter mentioned, defendant WSA managed the PREMISES.
25. At all times hereinafter mentioned, defendant WSA, as an owner, had a non-
delegable duty to maintain the subject PREMISES in a non-negligent manner.
26. At all times hereinafter mentioned, it was the duty and obligation of defendants
WILTON and WSA, (hereinafter “defendants”), their agents, servants and/or employees to keep
and maintain the PREMISES, including the walkways and common areas thereof, in a
reasonably safe state of repair and condition and to keep and maintain all portions thereof free
and clear of snow, ice and other slippery substances and hazards and obstacles and to otherwise
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keep the outdoor walkways and parking area of the PREMISES in such a state of repair and
maintenance as to prevent injuries to all those using the PREMISES.
FIRST CAUSE OF ACTION ON BEHALF OF PLAINTIFF
27. Plaintiff repeats and re-alleges each and every allegation set forth in paragraphs "1"
through "26" hereof with the same force and effect as though the same were fully set forth at length
herein.
28. On or about January 23, 2019, Assignor TONI MIDDLETON was employed by
Rite Aid Corporation.
29. On or about January 23, 2019, plaintiff’s assignor was lawfully within the
aforementioned PREMISES and while walking she was caused to slip and fall and be
precipitated to the ground as a result of the wet, icy, slippery and/or slick condition existing on
the PREMISES causing her to sustain serious personal injuries.
30. The incident and resulting injuries to plaintiff’s assignor were caused through no
fault of her own but were caused by reason of the negligence of defendants, their agents, servants
and/or employees in that defendant defendants, their agents, servants and/or employees were
careless, reckless and negligent in the ownership, operation, control, management and
supervision of the aforementioned PREMISES, in knowing, causing, directing, permitting and/or
allowing the PREMISES to be maintained in a dangerous, unsafe, hazardous and trap-like
condition, and to be, become and remain in such a dangerous, defective, hazardous, and unsafe
condition; in permitting and allowing slippery, slick and icy conditions to occur, exist and remain
on the PREMISES; in failing to barricade the area; in failing to inspect, correct and remedy
persistent icy conditions at the location in question at the PREMISES; in negligently and/or
improperly maintaining said PREMISES; in causing the Plaintiff to slip and/or trip and fall and
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be precipitated to the ground; in failing to take any and all care, reasonable steps and/or
precautions to safeguard those lawfully using said premises; in failing to make adequate and
timely inspections so as to prevent the dangerous condition thereat; in failing to properly warn or
apprise, creating and maintaining a hazard, nuisance and trap thereat; and in being generally
negligent, careless and reckless in the premises; all in violation of the laws, statutes, ordinances,
rules and regulations made and provided therefore.
31. By reason of the foregoing, plaintiff’s assignor TONI MIDDLETON was
severely injured and damaged, rendered sick, sore, lame and disabled, sustained severe nervous
attacks and mental anguish, great physical pain and emotional upset, some of which injuries are
permanent in nature and duration, and she will be permanently caused to suffer pain and
inconvenience and other effects of such injuries; and she has incurred and in the future
necessarily will incur further hospital and/or medical expenses in an effort to be cured of such
said injuries; and she has and in the future necessarily will be unable to pursue her usual duties
with the same degree of efficiency as prior to this occurrence, all to her great damage.
32. That at the time of said accident, Assignor TONI MIDDLETON was an
employee of the aforementioned Rite Aid Corporation, said accident arose out of and in the
course of her employment, and was not occasioned by intoxication or by willful intention to
bring about injury of himself or another.
33. By reason of the foregoing plaintiff has been compelled to pay and will be required
to pay in the future for medical care and wages on behalf of TONI MIDDLETON all to their great
damage.
34. By reason of the foregoing, plaintiff has been damaged in a sum in excess of the
jurisdictional value of this court.
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35. That said employer, Rite Aid Corporation, duly secured compensation for its
employees, including TONI MIDDLETON, under the Worker’s Compensation Law of the State
of New York, and as prescribed therein, by insuring the payment of such compensation with the
plaintiff, INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, which insurance
was in effect on January 23, 2019.
36. The injuries suffered by TONI MIDDLETON do not constitute a “grave
injury” as defined in Section 11 of the New York State Workers Compensation Law.
37. That more than one year has elapsed since the cause of action sued upon herein
arose on the 23rd day of January 2019.
38. That Assignor TONI MIDDLETON has in all respects accepted the
compensation paid to her as aforesaid, and has thereby, elected to take and has taken
compensation under the Worker’s Compensation Law of the State of New York.
39. That by letter dated the 15th day of February 2022, plaintiff, pursuant to Section
29, subd. 2, of the Worker’s Compensation Law of the State of New York, notified TONI
MIDDLETON, in writing by certified mail, that her failure to commence an action against
defendants within 30 days thereafter would operate as an assignment of said cause of action to
the plaintiff.
40. The Assignee TONI MIDDLETON failed to commence such action and the
cause of action against the defendant to recover damages for injuries to Assignor TONI
MIDDLETON arising out of the occurrence hereinabove set forth was thereby duly assigned
pursuant to said Section 29 to the plaintiff.
41. That said plaintiff is now the holder of the cause of action herein alleged, except
that to the extent of two-thirds (2/3) of any recovery in excess of the total amount of
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compensation paid, medical expenses and expenditures including attorney fees necessary to
recover such amount shall be deemed for the benefit of Assignor TONI MIDDLETON.
42. By reason of the foregoing, plaintiff has been damaged in a sum representing the
pain and suffering and economic and non-economic losses incurred by plaintiff’s assignor as a
result of the incident set forth herein.
WHEREFORE, the plaintiff demands judgment against the defendants as follows:
(a) as to the first cause of action, damages in a sum to be determined by a jury after
trial;
(b) for such other and further relief as to this Court seems just and proper together
with the costs and disbursements of this action.
Dated: Hicksville, New York
September 1st, 2022
Yours, etc.,
___________________________
Kevin Fitzpatrick
MARSCHHAUSEN & FITZPATRICK, P.C.
73 Heitz Place
Hicksville, New York 11801
(516)747-8000
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ATTORNEY’S VERIFICATION
STATE OF NEW YORK )
) ss.:
COUNTY OF NASSAU )
KEVIN P. FITZPATRICK, an attorney at law duly admitted to practice in the Courts of the State
of New York, affirms under the penalty of perjury as follows:
I am the attorney for the plaintiff in the above captioned action. I have read the foregoing
Second Amended Verified Complaint and know the contents thereof to be true to my own knowledge,
except as to the matters therein states to be alleged on information and belief, as to these matters, I
believe it to be true.
The reason this verification is made by me and not by plaintiff is that the plaintiff is not presently
in the county in which I maintain my office.
The source of my information and the grounds of my belief are communications with my clients
and others, papers, reports and investigation contained in the file.
Dated: Hicksville, New York
September 1st, 2022
___________________________
KEVIN P. FITZPATRICK
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Index No.:
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SARATOGA
=========================================
INDEMNITY INSURANCE COMPANY OF NORTH
AMERICA, as assignee of TONI MIDDLETON,
assignor
Plaintiff(s),
- against –
WILTON SQUARE ASSOCIATES, L.L.C. and
WSA WILTON, L.L.C,
Defendant(s).
==========================================
SUMMONS
AND
VERIFIED COMPLAINT
==========================================
MARSCHHAUSEN & FITZPATRICK, P.C.
Attorney for Plaintiff(s)
73 Heitz Place
Hicksville, New York 11801
(516) 877-7700
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Preview
FILED: SARATOGA COUNTY CLERK 09/02/2022 10:22 AM INDEX NO. EF20221929 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/02/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SARATOGA ---------------------------------------------------------------------- X Index No.: INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, as assignee of TONI MIDDLETON, Assignor, Date Filed: Plaintiff(s), SUMMONS - against - Venue is Proper in WILTON SQUARE ASSOCIATES, L.L.C. and WSA Saratoga County, WILTON, L.L.C, Place of Accident Defendant(s), ----------------------------------------------------------------------- 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, on the plaintiff's attorney within 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. In case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint, together with the cost of this action. Dated: Hicksville, New York September 1st, 2022 ____________________________________ Kevin Fitzpatrick, Esq. MARSCHHAUSEN & FITZPATRICK, P.C. Attorney for Plaintiff 73 Heitz Place Hicksville, New York 11801 (516) 747-8000 1 of 11 FILED: SARATOGA COUNTY CLERK 09/02/2022 10:22 AM INDEX NO. EF20221929 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/02/2022 TO: WILTON SQUARE ASSOCIATES, L.L.C. C/O NIGRO COMPANIES, 20 CORPORATE WOODS BLVD, ALBANY, NY, UNITED STATES, 12211 WSA WILTON LLC C/O TRI CITY RENTALS LLC, 255 WASHINGTON AVENUE EXT., ALBANY, NY, UNITED STATES, 12205 SUPREME COURT OF THE STATE OF NEW YORK 2 of 11 FILED: SARATOGA COUNTY CLERK 09/02/2022 10:22 AM INDEX NO. EF20221929 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/02/2022 COUNTY OF SARATOGA --------------------------------------------------------------------- X Index No.: INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, as assignee of TONI MIDDLETON, Assignor, Plaintiff(s), VERIFIED COMPLAINT -against- WILTON SQUARE ASSOCIATES, L.L.C. and WSA WILTON, L.L.C, Defendant(s). --------------------------------------------------------------------- X Plaintiff, INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, by and through its attorneys, MARSCHHAUSEN & FITZPATRICK, P.C, as and for its verified complaint herein, alleges upon information and belief as follows: 1. At all times hereinafter mentioned, plaintiff, the INDEMNITY INSURANCE COMPANY OF NORTH AMERICA is and was a corporation duly authorized to do business in the State of New York with its principal place of business in the State of Pennsylvania. 2. At all times hereinafter mentioned, defendants WILTON SQUARE ASSOCIATES, L.L.C. (herein after “WILTON”) was and is a corporation duly organized and existing under and by virtue of the laws of the State of New York, with its principal place of business in the State of New York 3. At all times hereinafter mentioned, WILTON is and was a foreign business corporation organized and existing pursuant to the laws of the State of New York and authorized to do business in the State of New York. 4. At all times hereinafter mentioned, defendant WILTON is and was a foreign corporation duly authorized to do business within the State of New York. 3 of 11 FILED: SARATOGA COUNTY CLERK 09/02/2022 10:22 AM INDEX NO. EF20221929 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/02/2022 5. At all times hereinafter mentioned, defendant WILTON is and was a foreign corporation and conducted business within the State of New York. 6. At all times hereinafter mentioned, defendant WILTON is and was an owner of the premises known as 3027 Route 50, Saratoga Springs in the County of Saratoga, State of New York (hereinafter the “PREMISES”). 7. At all times hereinafter mentioned, defendant WILTON was the lessor of the PREMISES. 8. At all times hereinafter mentioned, defendant WILTON was the lessee of the PREMISES. 9. At all times hereinafter mentioned, defendant WILTON operated the PREMISES. 10. At all times hereinafter mentioned, defendant WILTON controlled the PREMISES. 11. At all times hereinafter mentioned, defendant WILTON maintained the PREMISES. 12. At all times hereinafter mentioned, defendant WILTON managed the PREMISES. 13. At all times hereinafter mentioned, defendant WILTON, as an owner, had a non- delegable duty to maintain the subject PREMISES in a non-negligent manner. 14. At all times hereinafter mentioned, defendant WSA WILTON, L.L.C. (herein after “WSA”) was and is a corporation duly organized and existing under and by virtue of the laws of the State of New York, with its principal place of business in the State of New York. 15. At all times hereinafter mentioned, WSA is and was a foreign business corporation organized and existing pursuant to the laws of the State of New York and authorized to do business in the State of New York. 16. At all times hereinafter mentioned, defendant WSA is and was a foreign 4 of 11 FILED: SARATOGA COUNTY CLERK 09/02/2022 10:22 AM INDEX NO. EF20221929 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/02/2022 corporation duly authorized to do business within the State of New York. 17. At all times hereinafter mentioned, defendant WSA is and was a foreign corporation and conducted business within the State of New York. 18. At all times hereinafter mentioned, defendant WSA is and was an owner of the premises known as 3027 Route 50, Saratoga Springs in the County of Saratoga, State of New York (hereinafter the “PREMISES”). 19. At all times hereinafter mentioned, defendant WSA was the lessor of the PREMISES. 20. At all times hereinafter mentioned, defendant WSA was the lessee of the PREMISES. 21. At all times hereinafter mentioned, defendant WSA operated the PREMISES. 22. At all times hereinafter mentioned, defendant WSA controlled the PREMISES. 23. At all times hereinafter mentioned, defendant WSA maintained the PREMISES. 24. At all times hereinafter mentioned, defendant WSA managed the PREMISES. 25. At all times hereinafter mentioned, defendant WSA, as an owner, had a non- delegable duty to maintain the subject PREMISES in a non-negligent manner. 26. At all times hereinafter mentioned, it was the duty and obligation of defendants WILTON and WSA, (hereinafter “defendants”), their agents, servants and/or employees to keep and maintain the PREMISES, including the walkways and common areas thereof, in a reasonably safe state of repair and condition and to keep and maintain all portions thereof free and clear of snow, ice and other slippery substances and hazards and obstacles and to otherwise 5 of 11 FILED: SARATOGA COUNTY CLERK 09/02/2022 10:22 AM INDEX NO. EF20221929 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/02/2022 keep the outdoor walkways and parking area of the PREMISES in such a state of repair and maintenance as to prevent injuries to all those using the PREMISES. FIRST CAUSE OF ACTION ON BEHALF OF PLAINTIFF 27. Plaintiff repeats and re-alleges each and every allegation set forth in paragraphs "1" through "26" hereof with the same force and effect as though the same were fully set forth at length herein. 28. On or about January 23, 2019, Assignor TONI MIDDLETON was employed by Rite Aid Corporation. 29. On or about January 23, 2019, plaintiff’s assignor was lawfully within the aforementioned PREMISES and while walking she was caused to slip and fall and be precipitated to the ground as a result of the wet, icy, slippery and/or slick condition existing on the PREMISES causing her to sustain serious personal injuries. 30. The incident and resulting injuries to plaintiff’s assignor were caused through no fault of her own but were caused by reason of the negligence of defendants, their agents, servants and/or employees in that defendant defendants, their agents, servants and/or employees were careless, reckless and negligent in the ownership, operation, control, management and supervision of the aforementioned PREMISES, in knowing, causing, directing, permitting and/or allowing the PREMISES to be maintained in a dangerous, unsafe, hazardous and trap-like condition, and to be, become and remain in such a dangerous, defective, hazardous, and unsafe condition; in permitting and allowing slippery, slick and icy conditions to occur, exist and remain on the PREMISES; in failing to barricade the area; in failing to inspect, correct and remedy persistent icy conditions at the location in question at the PREMISES; in negligently and/or improperly maintaining said PREMISES; in causing the Plaintiff to slip and/or trip and fall and 6 of 11 FILED: SARATOGA COUNTY CLERK 09/02/2022 10:22 AM INDEX NO. EF20221929 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/02/2022 be precipitated to the ground; in failing to take any and all care, reasonable steps and/or precautions to safeguard those lawfully using said premises; in failing to make adequate and timely inspections so as to prevent the dangerous condition thereat; in failing to properly warn or apprise, creating and maintaining a hazard, nuisance and trap thereat; and in being generally negligent, careless and reckless in the premises; all in violation of the laws, statutes, ordinances, rules and regulations made and provided therefore. 31. By reason of the foregoing, plaintiff’s assignor TONI MIDDLETON was severely injured and damaged, rendered sick, sore, lame and disabled, sustained severe nervous attacks and mental anguish, great physical pain and emotional upset, some of which injuries are permanent in nature and duration, and she will be permanently caused to suffer pain and inconvenience and other effects of such injuries; and she has incurred and in the future necessarily will incur further hospital and/or medical expenses in an effort to be cured of such said injuries; and she has and in the future necessarily will be unable to pursue her usual duties with the same degree of efficiency as prior to this occurrence, all to her great damage. 32. That at the time of said accident, Assignor TONI MIDDLETON was an employee of the aforementioned Rite Aid Corporation, said accident arose out of and in the course of her employment, and was not occasioned by intoxication or by willful intention to bring about injury of himself or another. 33. By reason of the foregoing plaintiff has been compelled to pay and will be required to pay in the future for medical care and wages on behalf of TONI MIDDLETON all to their great damage. 34. By reason of the foregoing, plaintiff has been damaged in a sum in excess of the jurisdictional value of this court. 7 of 11 FILED: SARATOGA COUNTY CLERK 09/02/2022 10:22 AM INDEX NO. EF20221929 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/02/2022 35. That said employer, Rite Aid Corporation, duly secured compensation for its employees, including TONI MIDDLETON, under the Worker’s Compensation Law of the State of New York, and as prescribed therein, by insuring the payment of such compensation with the plaintiff, INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, which insurance was in effect on January 23, 2019. 36. The injuries suffered by TONI MIDDLETON do not constitute a “grave injury” as defined in Section 11 of the New York State Workers Compensation Law. 37. That more than one year has elapsed since the cause of action sued upon herein arose on the 23rd day of January 2019. 38. That Assignor TONI MIDDLETON has in all respects accepted the compensation paid to her as aforesaid, and has thereby, elected to take and has taken compensation under the Worker’s Compensation Law of the State of New York. 39. That by letter dated the 15th day of February 2022, plaintiff, pursuant to Section 29, subd. 2, of the Worker’s Compensation Law of the State of New York, notified TONI MIDDLETON, in writing by certified mail, that her failure to commence an action against defendants within 30 days thereafter would operate as an assignment of said cause of action to the plaintiff. 40. The Assignee TONI MIDDLETON failed to commence such action and the cause of action against the defendant to recover damages for injuries to Assignor TONI MIDDLETON arising out of the occurrence hereinabove set forth was thereby duly assigned pursuant to said Section 29 to the plaintiff. 41. That said plaintiff is now the holder of the cause of action herein alleged, except that to the extent of two-thirds (2/3) of any recovery in excess of the total amount of 8 of 11 FILED: SARATOGA COUNTY CLERK 09/02/2022 10:22 AM INDEX NO. EF20221929 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/02/2022 compensation paid, medical expenses and expenditures including attorney fees necessary to recover such amount shall be deemed for the benefit of Assignor TONI MIDDLETON. 42. By reason of the foregoing, plaintiff has been damaged in a sum representing the pain and suffering and economic and non-economic losses incurred by plaintiff’s assignor as a result of the incident set forth herein. WHEREFORE, the plaintiff demands judgment against the defendants as follows: (a) as to the first cause of action, damages in a sum to be determined by a jury after trial; (b) for such other and further relief as to this Court seems just and proper together with the costs and disbursements of this action. Dated: Hicksville, New York September 1st, 2022 Yours, etc., ___________________________ Kevin Fitzpatrick MARSCHHAUSEN & FITZPATRICK, P.C. 73 Heitz Place Hicksville, New York 11801 (516)747-8000 9 of 11 FILED: SARATOGA COUNTY CLERK 09/02/2022 10:22 AM INDEX NO. EF20221929 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/02/2022 ATTORNEY’S VERIFICATION STATE OF NEW YORK ) ) ss.: COUNTY OF NASSAU ) KEVIN P. FITZPATRICK, an attorney at law duly admitted to practice in the Courts of the State of New York, affirms under the penalty of perjury as follows: I am the attorney for the plaintiff in the above captioned action. I have read the foregoing Second Amended Verified Complaint and know the contents thereof to be true to my own knowledge, except as to the matters therein states to be alleged on information and belief, as to these matters, I believe it to be true. The reason this verification is made by me and not by plaintiff is that the plaintiff is not presently in the county in which I maintain my office. The source of my information and the grounds of my belief are communications with my clients and others, papers, reports and investigation contained in the file. Dated: Hicksville, New York September 1st, 2022 ___________________________ KEVIN P. FITZPATRICK 10 of 11 FILED: SARATOGA COUNTY CLERK 09/02/2022 10:22 AM INDEX NO. EF20221929 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/02/2022 Index No.: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SARATOGA ========================================= INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, as assignee of TONI MIDDLETON, assignor Plaintiff(s), - against – WILTON SQUARE ASSOCIATES, L.L.C. and WSA WILTON, L.L.C, Defendant(s). ========================================== SUMMONS AND VERIFIED COMPLAINT ========================================== MARSCHHAUSEN & FITZPATRICK, P.C. Attorney for Plaintiff(s) 73 Heitz Place Hicksville, New York 11801 (516) 877-7700 11 of 11